text
stringlengths 5.06k
13.9k
|
|---|
peximus
insimul tenuit (in-sim-~l or in-si-mCll ten-yoo-it).
[Law Latin "he held together"] Hist. A writ brought
by a coparcener to recover a fee tail alienated by an
earlier tenant; a type offormedon in the descender. See
formedon in the descender under FORMEDON.
insinuare (in-sin-yoo-air-ee), vb. [Latin] Roman & civil
law. To register; to deposit (an instrument) with a
public registry.
insinuatio (in-sin-yoo-ay-shee-oh). [Law Latin) Hist.
Information or suggestion. This term sometimes
appeared in the phrase ex insinuatione ("on the infor
mation"), which is the precursor to the modern on irifor
mation and belief See INFORMATION AND BELIEF.
insinuation (in-sin-yoo-ay-shCln). Civil law. 1. 'The act of
depositing (an instrument) with a public registry for
recording. 2. A document that evidences a donation
ofproperty.
insinuation of a will. Civil law. The first production of
a will for probate.
insist, vb. (Of a house in a bicameral legislature) to
reaffirm (an amendment) that the other house has
considered but in which it has not concurred, or to
reaffirm nonconcurrence in an amendment from which
the other house has not receded . An insistence often
results in a request for a conference. See CONCUR (4);
CONFERENCE (2); RECEDE. -insistence, n.
"When one house refuses to recede from its amendments,
the bill is not thereby lost, because the house may vote
to insist upon its amendments. A message is sent to the
other house stating that the house has insisted upon its
amendments and is usually accompanied by a request for
conference. When one house insists upon its amendments,
the other house may then insist upon its nonconcurrence
in the amendments and request a conference or recede
from its nonconcurrence and concur in the amendments,
which would constitute a final passage of the bill with the
amendments." National Conference of State legislatures.
Mason's Manual ofLegislative Proceaure 768, at 556-57
(2000).
in solido (in sol-Cl-doh). [Latin "as a whole"] (Of an obli
gation) creating joint and several liability . The term
is used in most civil-law jurisdictions, but no longer in
Louisiana. -Also termed in solidum. See SOLIDARY.
in solidum (in sol-d-ddm). See IN SOLIDO.
in solo (in soh-Ioh), adv. & adj. [Latin] In the soil or
ground.
in solo alieno (in soh-loh ay-Iee-ee-noh or al-ee-), adv.
& adj. [Latin] In another's ground.
in solo proprio (in soh-Ioh proh-pree-oh), adv. & adj.
(Latin] In one's own ground.
in solutum (in sa-Ioo-tdm). [Latin] Hist. In payment.
insolvency, n. (17c) 1. The condition of being unable
to pay debts as they fall due or in the usual course of
business. 2. The inability to pay debts as they mature.
Also termed failure to meet obligations;failing circum
stances. See BANKRUPTCY (2). Cf. SOLVENCY.
balance-sheet insolvency. Insolvency created when
the debtor's liabilities exceed its assets . Under
some state laws, balance-sheet insolvency prevents a corporation from making a distribution to its share
holders. Also termed balance-sheet test.
equity insolvency. Insolvency created when the debtor
cannot meet its obligations as they fall due . Under
most state laws, equity insolvency prevents a corpora
tion from making a distribution to its shareholders.
insolvency law. A statute that provides relief to a debtor
who lacks the means to pay creditors . The term is
sometimes used interchangeably with bankruptcy law
because legislative drafting may not produce a bright
line distinction. Also termed insolvent law. Cf.
BANKRUPTCY LAW (2).
insolvency proceeding. Archaic. A bankruptcy proceed
ing to liquidate or rehabilitate an estate. See BANK
RUPTCY (1).
insolvent, adj. (16c) (Of a debtor) haVing liabilities that
exceed the value ofassets; having stopped paying debts
in the ordinary course of business or being unable to
pay them as they fall due. insolvent, n.
insolvent law. See INSOLVENCY LAW.
in spe (in spee). [Latin] Hist. In hope.
in specie (in spee-shee-ee or spee-shee). [Latin" in kind"]
In the same or like form; IN KIND <the partners were
prepared to return the borrowed items in specie>.
inspectator. Archaic. A prosecutor, adversary, or inspec
tor.
inspectio corporis (in-spek-shee-oh kor-pdr-is). [Latin]
Hist. An inspection of the person. An inspectio
corporis was an actual physical examination, the
performance of which was rarely allowed except in
extreme cases, such as one involVing the concealment
of pregnancy.
inspection. (14c) A careful examination of something,
such as goods (to determine their fitness for purchase)
or items produced in response to a discovery request (to
determine their relevance to a lawsuit). [Cases: Inspec
tion C=>1-7; Sales 168.J
inspection right. (1898) The legal entitlement in certain
circumstances to examine articles or documents, such
as a consumer's right to inspect goods before paying for
them. [Cases: Sales G 168.J
inspection search. See administrative search under
SEARCH.
inspector. (17c) 1. A person authorized to inspect some
thing. 2. A police officer who ranks below a superinten
dent or deputy superintendent, and who is in charge of
several precincts.
inspector general. (often cap.) 1. One of several federal
officials charged with supervising a particular agency's
audits or investigations. 2. A governor-appointed state
official who oversees internal review within executive
agencies to ensure that there is no waste or abuse of
resources.
inspeximus (in-spek-si-mds), vb. [Latin "we have
inspected") Hist. A charter in which the grantor
install 868
confirms an earlier charter. -Inspeximus was the
opening word ofthe charter. Also termed vidimus.
install, vb. (l6c) To induct (a person) into an office or a
rank <the newly elected governor was soon installed
in office>.
installment, n. (18c) A periodic partial payment of a
debt.
installment accounting method. See ACCOUNTING
METHOD.
installment contract. See retail installment contract
under CONTRACT.
installment credit. See CREDIT (4).
installment debt. See DEBT.
installment land contract. See contract for deed under
CONTRACT.
installment loan. See LOAN.
installment note. See NOTE (1).
installment payment. See PAYMENT.
installment plan. See INSTALLMENT SALE.
installment sale. (1893) A conditional sale in which the
buyer makes a down payment followed by periodic
payments and the seller retains title or a security
interest until all payments have been received. Also
termed installment plan; retail installment sale. [Cases:
Sales (;::::>82(4).]
disguised installment sale. Bankruptcy. A debtor's
leasing ploy to try to keep property outside the bank
ruptcy estate, whereby a lease either presents the les
see-debtor with a bargain purchase option or transfers
title to the lessee-debtor at the end of the lease term.
-When such a lease is discovered, the property is
treated as part of the bankruptcy estate, meaning that
to defeat competing creditors, the lessor must have
perfected a security interest. [Cases: Bankruptcy (;::::>
3101; Secured Transactions (::::> 10.]
instance, n. (14c) 1. An example or occurrence <there
were 55 instances of reported auto theft in this small
community last year>. 2. 'Ihe act of instituting legal
proceedings <court offirst instance>. 3. Urgent solici
tation or insistence <she applied for the job at the
instance of her friend>.
instance, vb. (17c) To illustrate by example; to cite
<counsel instanced three cases for the court to
consider>.
instance court. See COURT.
instant, adj. This; the present (case, judgment, order,
etc.); now being discussed <the instant order is not
appealable>.
instantaneous crime. See CRIME.
instantaneous death. See DEATH.
instant case. See case at bar under CASE.
instanter (in-stan-t;}r), adv. (17c) Instantly; at once <the
defendant was ordered to file its motion instanter>.
instant-runoff voting. See VOTING. instar (in-stahr). [Latin] Hist. Likeness; the equivalent of
a thing. -This term appeared in phrases such as instar
omnium ("equivalent or tantamount to all").
in statu quo (in stay-t[yJoo kwoh). [Latin "in the state in
which"] In the same condition as previously <Johnson,
as a minor, can recover the whole of what he paid ifhe
puts the other party in statu quo by returning all the
value received>. -Also termed in statu quo ante. See
STATUS QUO. [Cases: Cancellation ofInstruments
23; Contracts (::::>265.]
instigate, vb. (l6c) To goad or incite (someone) to take
some action or course.
instinct, adj. Archaic. Imbued or charged <the contract
is instinct with an obligation ofgood faith>.
in stirpes (in stdr-peez). See PER STIRPES.
institor (in-sti-tor or -tdr), n. [Latin] Roman law. A
person, often but not always a son or slave, to whom the
transaction of any particular business is committed;
esp., a shopkeeper or other person in charge of a com
mercial business. See actio institoria under ACTIO.
institorial power. See POWER (3).
institute, n. 1. A legal treatise or commentary, such as
Coke's Institutes in four volumes (published in 1628).
2. (cap. &pl.) An elementary treatise on Roman law in
four books. -This treatise is one of the four compo
nent parts of the Corpus Juris Civilis. Also termed
Institutes ofJustinian; Justinian's Institutes. See CORPUS
JURIS CIVILIS. 3. (cap. & pl.) An elementary treatise
written by the Roman jurist Gaius. -The Institutes,
written in the second century A.D., served as a foun
dation for the Institutes ofJustinian. -Also termed
Institutes ofGaius. 4. (cap. & pl.) A paraphrase ofJus
tinian's Institutes written in Greek by Theophilus, a
law professor at Constantinople who helped prepare
the Institutes ofJustinian. -This work was prepared
in the sixth century A.D. -Also termed Paraphrase
of Iheophilus; Institutes of Iheophilus. 5. Civil law. A
person named in a will as heir, but under directions to
pass the estate on to some other specified person (called
the substitute). See SUBSTITUTE (2). 6. An organization
devoted to the study and improvement of the law. See
AMERICAN LAW INSTITUTE.
institute, vb. (14c) To begin or start; commence <insti
tute legal proceedings against the manufacturer>.
instituted heir. See testamentary heir under HEIR.
Institute for Telecommunication Sciences. See
NATIONAL TELECOMMUNICATIONS AND INFORMATION
ADMINISTRATION. Abbr. ITS.
Institute ofMuseum and Library Services. An inde
pendent federal agency that makes grants to support
libraries and museums. -It was established within the
National Foundation on the Arts and the Humanities
in 1996. -Abbr. IMLS. See NATIONAL FOUNDATION
ON THE ARTS AND THE HUMANITIES.
Institutes ofGaius. See INSTITUTE (3).
Institutes ofJustinian. See INSTITUTE (2).
869
Institutes of Theophilus. See INSTITUTE (4).
institutio heredis (in-sti-t[yJoo-shee-oh h<J-ree-dis).
[Latin] Roman law. The naming ofan heir, which was
essential to the validity of a will; specif., the designa
tion in a will of a person as the testator's heir. -Also
termed heredis institutio.
institution. (14c) 1. The commencement ofsomething,
such as a civil or criminal action. 2. An elementary
rule, principle, or practice. 3. An established organi
zation, esp. one ofa public character, such as a facility
for the treatment ofmentally disabled persons. -Also
termed public institution. [Cases: Mental Health
31-37.]4. Civil law. A testator's appointment ofan heir;
the designation of an institute. See INSTITUTE (5). 5.
Eccles. law. The investiture of a cleric with a benefice, by
which the cleric becomes responSible for the spiritual
needs of the members of a parish. Cf. PRESENTATION
(2); ADVOWSON.
institutional broker. See BROKER.
institutional gerrymandering. See GERRYMANDER
ING.
institutional investor. See INVESTOR.
institutionalize, vb. (1865) 1. To place (a person) in
an institution. 2. To give (a rule or practice) official
sanction.
institutional lender. A business, esp. a bank, that rou
tinely makes loans to the general public.
institutional litigant. (18 |
, esp. a bank, that rou
tinely makes loans to the general public.
institutional litigant. (1858) An organized group that
brings lawsuits not merely to win but also to bring about
a change in the law or to defend an existing law.
"Our second observation relates to what has been called
the 'institutional litigant.' There are organized groups,
such as labour unions or trade associations, that have a
continuing interest in the development of the common law.
A group of this sort may take a case to litigation, not so
much for the sake of a determination of the case itself,
but for the purpose of bringing about a change in the law
or of defending an existing rule against a change sought
by some other group. When such groups are involved, the
usual arguments against prospective changes in the law
through judicial decisions lose much of their force. Indeed,
when the litigants have this sort of long-term interest, a
judicial proceeding may take on, with the assent of all
involved, something of the nature of a legislative hearing."
Lon L. Fuller, Anatomy ofthe Law 163 (1968).
institutional market. See MARKET.
institutiones (in-sti-t[y]oo-shee-oh-neez), n. [Latin]
Roman law. Elementary works of law; institutes. See
I:-<STITUTE_
instruct, vb. See JURY CHARGE (3).
instruct down. Missouri law. (Of a court) to give jurors
an instruction on a lesser included offense . A court
must instruct down only if the jury could find the
defendant not guilty of the higher offense but guilty
ofthe lesser one.
instructed delegate. See DELEGATE.
instructed verdict. See directed verdict under VERDICT.
instruction. See JURY INSTRUCTION. instrument
instructional text. Copyright. A literary, graphic, or pic
torial work deSigned and prepared for use in ordinary
teaching activities. See 17 USCA 101.
instruction directive. A document that contains specific
directions concerning the declarant's wishes for health
care decisions. Cf. ADVANCE DIRECTIVE; LIVING WILL;
PROXY DIRECTIVE.
instrument. (I5c) 1. A written legal document that
defines rights, duties, entitlements, or liabilities, such
as a contract, will, promissory note, or share certifi
cate. -Also termed legal instrument.
"An 'instrument' seems to embrace contracts, deeds,
statutes, wills, Orders in CounCil, orders, warrants,
schemes, letters patent, rules, regulations, bye-laws,
whether in writing or in print, or partly in both; in fact,
any written or printed document that may have to be inter
preted by the Courts." Edward Seal, Cardinal Rules ofLegal
Interpretation 55 (A.E. Randall ed., 3d ed. 1924).
statutory instrument. See STATUTORY INSTRUMENT.
testamentary instrument. See WILL.
2. Commercial law. An unconditional promise or
order to pay a fixed amount of money, with or without
interest or other fixed charges described in the promise
or order. -Under the UCC, a promise or order must
meet several other specifically listed requirements to
qualify as an instrument. UCC 3-104(a). See NEGO
TIABLE INSTRUMENT. 3. A means by which something
is achieved, performed, or furthered <an instrument
of social equality>.
inchoate instrument. (1834) An unrecorded instru
ment that must, by law, be recorded to serve as effec
tive notice to third parties . Until the instrument is
recorded, it is effective only between the parties to
the instrument.
incomplete instrument. (1822) A paper that, although
intended to be a negotiable instrument, lacks an
essential element . An incomplete instrument may
be enforced if it is subsequently completed. UCC
3-115. [Cases: Bills and Notes <::=> 144.]
indispensable instrument. The formal written evidence
ofan interest in intangibles, so necessary to repre
sent the intangible that the enjoyment, transfer, or
enforcement of the intangible depends on possession
ofthe instrument.
perfect instrument. (I8c) An instrument (such as a
deed or mortgage) that is executed and filed with a
public registry.
sealed instrument. At common law and under some
statutes, an instrument to which the bound party has
affixed a personal seal, usu. recognized as providing
indisputable evidence ofthe validity ofthe underlying
obligations. Many states have abolished the com
mon-law distinction between sealed and unsealed
instruments.lbe UCC provides that the laws appli
cable to sealed instruments do not apply to negotiable
instruments or contracts for the sale ofgoods. UCC
2-203. Cf. contract under seal under CONTRACT.
[Cases: Contracts Seals <::=> 1.]
870 instrumental crime
"At common law, the seal served to render documents
indisputable as to the terms of the underlying obligation,
thereby dispensing with the necessity of witnesses; the
sealed instrument was considered such reliable evidence
that it actually became the contract itself -called a 'spe
cialty' -the loss of which meant loss of all rights of the
obligee against the obligor. The seal also had many other
consequences at common law, some of which have been
retained in jurisdictions which still recognize the seal ....
In states where the seal is still recognized, its primary legal
significance is often the application of a longer statute of
limitations to actions on sealed instruments." 69 Am. Jur.
2d Seals 2, at 617-18 (1993).
instrumental crime. See CRIME.
instrumentality, n. 1. A thing used to achieve an end
or purpose. 2. A means or agency through which a
function of another entity is accomplished, such as a
branch of a governing body.
instrumentality rule. The principle that a corporation
is treated as a subsidiary if it is controlled to a great
extent by another corporation. -Also termed instru
mentality theory.
instrumenta noviter reperta (in-str;)-men-t;) noh-v;)-t;)r
ri-p;)r-t;)). [Law Latin] Hist. Instruments newly discov
ered. See EX INSTRUMENTIS DE NOVO REPERTIS.
instrument ofaccession. Int'llaw. A document formally
acknowledging the issuing state's consent to an existing
treaty, and exchanged with the treaty parties or depos
ited with a designated state or international organiza
tion. See ACCESSION (3).
instrument of appeal. Hist. English law. A document
used to appeal a judgment ofdivorce rendered by a trial
judge of the Probate, Divorce and Admiralty Division
to the full panel of the court. The use of the instru
ment ofappeal ended in 1881, when appeals were taken
to the Court ofAppeal rather than the full panel ofthe
Probate, Divorce and Admiralty Division.
instrument ofcrime. See CRIMINAL INSTRUMENT.
instrument of ratification. Int'llaw. A document
formally acknowledging the issuing state's confir
mation and acceptance of a treaty, and exchanged by
the treaty parties or deposited with a deSignated state
or international organization. See RATIFICATION (4).
[Cases: Treaties (::::e3.]
instrumentum (in-stroo-men-t;)m). [Latin] Hist. A
document, deed, or instrument; esp., a document that
is not under seal, such as a court roll.
insubordination. (I8c) 1. A willful disregard of an
employer's instructions, esp. behavior that gives the
employer cause to terminate a worker's employment.
[Cases: Labor and Employment (::::e766.] 2. An act of
disobedience to proper authority; esp., a refusal to obey
an order that a superior officer is authorized to give.
in subsidium (in s;)b-sid-ee-;)m). [Latin] Hist. In aid of.
insufficient evidence. See EVIDENCE.
insufficient funds. See NOT SUFFICIENT FUNDS.
insula (in-s[y];)-l;)), n. [Latin] Roman law. 1. An island.
2. A detached house or block of apartments leased to
tenants. insular, adj. (I7c) 1. Of, relating to, from, or constituting
an island <insular origin>. 2. Isolated from, uninter
ested in, or ignorant of things outside a limited scope
<insular viewpoint>.
insular area. A territory or commonwealth . This
phrase is used by some writers to denote the genus
of which the terms territory and commonwealth are
species. See COMMONWEALTH (2); TERRITORY (1).
insular court. See COURT.
insular possession. See POSSESSION.
in suo (in s[y]oo-oh). [Latin] Hist. In reference to one's
own affairs.
in suo genere (in s[y]oo-oh jen-;)r-ee). [Latin] Hist. Of
their own kind. The phrase usu. referred to certain
writings that were binding even though they lacked the
formal requirements.
in suo ordine (in s[y]oo-oh or-d;)-nee). [Latin] Hist. In
his order.
"In suo ordine .... A cautioner who is entitled to the
benefit of discussion can only be called upon, for fulfilment
of the obligation which he guaranteed, in his order -that
is, after the principal creditor has been discussed. So,
also, an heir can only be made liable for the moveable
debts of his ancestor, after the executor who succeeded
to the moveable estate has been discussed, and where
the moveable estate has proved insufficient to meet those
debts." John Trayner, TrayneY's Latin Maxims 277 (4th ed.
1894).
insurable, adj. Able to be insured <an insurable risk>.
insurability, n.
insurable interest. See INTEREST (2).
insurable value. The worth of the subject ofan insurance
contract, usu. expressed as a monetary amount. [Cases:
Insurance (::::e2171.]
insurance. (17c) 1. A contract by which one party (the
insurer) undertakes to indemnify another party (the
insured) against risk ofloss, damage, or liability arising
from the occurrence of some specified contingency,
and usu. to defend the insured or to pay for a defense
regardless of whether the insured is ultimately found
liable. An insured party usu. pays a premium to the
insurer in exchange for the insurer's assumption ofthe
insured's risk. Although indemnification provisions
are most common in insurance policies, parties to any
type of contract may agree on indemnification arrange
ments. [Cases: Insurance (::::e 1001.] 2. The amount for
which someone or something is covered by such an
agreement. -insure, vb.
"Insurance, or as it is sometimes called, assurance, is a
contract by which one party, for a conSideration, which
is usually paid in money either in one sum or at different
times during the continuance of the risk, promises to make
a certain payment of money upon the destruction or injury
of something in which the other party has an interest. In
fire insurance and in marine insurance the thing insured is
property; in life or accident insurance it is the life or health
of the person." 1 George J. Couch, Couch on Insurance
1.2, at 4-5 (2d ed. 1984).
accident and health insurance. See health insurance.
871
accident insurance. Insurance that indemnifies against
bodily injury caused by an accident. Covered losses
may include expenses, time, suffering, or death. Cf. :
casualty insurance. [Cases: Insurance C=1012.]
accounts-receivable insurance. 1. Insurance against
losses resulting from the insured's inability to collect
outstanding accounts receivable because ofdamage to
or destruction ofrecords. 2. See credit insurance.
additional insurance. Insurance added to an existing
policy.
all-risk insurance. Insurance that covers every kind of
insurable loss except what is specifically excluded.
annuity insurance. An agreement to pay the insured
(or annuitant) for a stated period or for life. [Cases:
Annuities
assessable insurance. 1. Insurance in which the insured
is liable for additional premiums ifa loss is unusually
large. 2. See assessable policy (1) under INSURANCE
POLICY.
assessment insurance. A type of mutual insurance
in which the policyholders are assessed as losses are
incurred; a policy in which payments to an insured
are not unalterably fixed, but are dependent on the
collection ofassessments necessary to pay the amount
insured.
automobile insurance. An agreement to indemnify
against one or more kinds ofloss associated with the
use of an automobile, including damage to a vehicle
and liability for personal injury. [Cases: Insurance
C=10l5.]
aviation insurance. Insurance that protects the insured
against a loss connected with the use of an aircraft.
This type of insurance can be written to cover a
variety of risks, including bodily injury, property
damage, and hangarkeepers' liability. [Cases: Insur
ance C=2329.]
broad-form insurance. (1959) Comprehensive insur
ance. This type of insurance usu. takes the form
of an endorsement to a liability or property policy,
broadening the coverage that is typically available.
bumbershoot insurance. 1. Marine insurance that
provides broad coverage for ocean marine risks. 2.
See umbrella insurance . This term derives from
the British slang tecm for umbrella. The term applies
esp. to a policy insured through the London insur
ance market. See umbrella policy under INSURANCE
POLICY.
burial insurance. Insurance that pays for the holder's
burial and funeral expenses.
business-interruption insurance. An agreement to
protect against one or more kinds of loss from the
interruption ofan ongoing business, such as a loss of
profits while the business is shut down to repair fire
damage. [C |
ruption ofan ongoing business, such as a loss of
profits while the business is shut down to repair fire
damage. [Cases: Insurance G=::>2163, 2179.]
business-partner insurance. See partnership insur
ance. insurance
captive insurance. 1. Insurance that provides coverage
for the group or business that established it. [Cases:
Insurance G-:::: lIn.] 2. Insurance that a subsidiary
prOVides to its parent company, usu. so that the parent
company can deduct the premiums set aside as loss
reserves.
cargo insurance. An agreement to pay for damage to
freight damaged in transit. [Cases: Insurance C=
2137(3),2217.]
casualty insurance. An agreement to indemnify against
loss resulting from a broad group of causes such as
legal liability, theft, accident, property damage, and
workers' compensation . 'Ihe meaning ofcasualty
insurance has become blurred because of the rapid
increase in different types of insurance coverage.
Cf. accident insurance. [Cases: Insurance 1008;
Workers' Compensation C=1061.]
coinsurance. (1889) 1. Insurance provided jointly by
two or more insurers. 2. Insurance under which the
insurer and insured jointly bear responsibility . An
example is commercial insurance under which only
a portion of a property's value is covered, and the
property owner assumes liability for any loss in excess
ofthe policy limits. [Cases: Insurance G=::>2170.J
collision insurance. (1921) Automobile insurance that
covers damage to the insured's vehicle resulting from
a rollover or collision with any object, but does not
cover a personal injury or damage to other property.
[Cases: Insurance G=::> 2704.]
commercial insurance. 1. An indemnity agreement in
the form of a deed or bond to protect against a loss
caused by a party's breach of contract. 2. A form of
coverage that allows an insurer to adjust the premium
rates at will, and doesn't require the insured to accept
the premium or renew the coverage from period to
period.
"Commercial insurance is a popular and very elastic term,
having reference to indemnity agreements issued in the
form of an insurance bond or policy, whereby parties to
commercial contracts are, to a deSignated extent, guar
anteed against loss by reason of a breach of contractual
obligations on the part of the other contracting party. To
this class belong poliCies of 'contract,' 'credit,' and 'title'
insurances." Thomas Gold Frost, A Treatise on Guaranty
Insurance 3, at 14 (2d ed. 1909).
comprehensive general-liability insurance. Insurance
that broadly covers an insured's liability exposure,
including product liability, contractual liability, and
premises liability. -Abbr. CGL insurance.
comprehensive insurance. (1924) Insurance that
combines coverage against many kinds oflosses that
may also be insured separately . This is commonly
used, for example, in an automobile-insurance
policy.
compulsory insurance. (1887) Statutorily required
insurance; esp., motor-vehicle liability insurance that
a state requires as a condition to register the vehicle.
[Cases: Automobiles G=::>43.]
insurance 872
convertible collision insurance. Collision insurance
that carries a low premium until a claim is made
against the policy.
convertible insurance. (1926) Insurance that can be
changed to another form without further evidence
ofinsurability, usu. referring to a term-life-insurance
policy that can be changed to permanent insurance
without a medical examination. [Cases: Insurance
C:=-1908-1911.]
credit insurance. An agreement to indemnify against
loss that may result from the death, disability, or
insolvency of someone to whom credit is extended.
A debtor typically purchases this type ofinsurance
to ensure the repayment of the loan. -Also termed
accounts-receivable insurance.
credit life insurance. See LIFE INSURANCE.
crime insurance. Insurance covering losses occasioned
by a crime committed by someone other than the
insured.
crop insurance. Insurance that protects against loss to
growing crops from natural perils such as hail and
fire. [Cases: Insurance <::-'""""::'2203-2208.]
D&O insurance. See directors' and officers' liability
insurance.
decreasing term insurance. Insurance that declines in
value during the term; esp., life insurance that lessens
in value to zero by the end ofthe term.
deposit insurance. (1933) A federally sponsored indem
nification program to protect depositors against the
loss oftheir money, up to a specified maximum, ifthe
bank or savings-and-loan association fails or defaults.
[Cases: Banks and Banking C:=-506.]
directors and officers' liability insurance. An agree
ment to indemnify corporate directors and officers
against judgments, settlements, and fines arising
from negligence suits, shareholder actions, and other
business-related suits. -Often shortened to D&O
liability insurance; D&O insurance. [Cases: Insurance
C:=-2377.]
disability insurance. Coverage purchased to protect
a person from a loss of income during a period of
incapacity for work. See general-disability insurance;
occupational-disability insurance. [Cases: Insurance
C:=-1012, 2534-2579.]
double insurance. (l8c) Insurance coverage by more
than one insurer for the same interest and for the
same insured. Except with life insurance, the
insured is entitled to only a single indemnity from
a loss, and to recover this, the insured may either (1)
sue each insurer for its share of the loss, or (2) sue one
or more ofthe insurers for the entire amount, leaving
any paying insurers to recover from the others their
respective shares of the loss.
dread-disease insurance. Health insurance that covers
medical expenses arising from the treatment of any
of several specified diseases. e-commerce insurance. Insurance that covers a busi
ness's computer-related damages and losses caused
by computer hackers and Internet viruses . Covered
damages usu. include physical destruction or harm to
computer circuitry, loss of access, loss of use, loss of
functionality, and business interruption.
employers'-liability insurance. 1. An agreement
to indemnify an employer against an employee's
claim not covered under the workers' -compensation
system. 2. An agreement to indemnify against liabil
ity imposed on an employer for an employee's neg
ligence that injures a third party. [Cases: Insurance
C:=-2317.]
employment-practices liability insurance. Insurance
that provides coverage for claims arising from an
insured's injury-causing employment practice, such
as discrimination, defamation, or sexual harass
ment. -Abbr. EPL insurance.
endowment insurance. A type oflife insurance that is
payable either to the insured at the end of the policy
period or to the insured's beneficiary if the insured
dies before the period ends. See endowment life insur
ance under LIFE INSURANCE.
errors-and-omissions insurance. An agreement to
indemnify for loss sustained because ofa mistake or
oversight by the insured -though not for loss due to
the insured's intentional wrongdoing . For example,
lawyers often carry this insurance as part oftheir mal
practice coverage to protect them in suits for damages
resulting from inadvertent mistakes (such as missing
a procedural deadline). While this insurance does not
cover the insured's intentional wrongdoing, it may
cover an employee's intentional, but unauthorized,
wrongdoing. -Often shortened to E&O insurance.
[Cases: Insurance C:=-2383.]
excess insurance. (1916) An agreement to indemnify
against any loss that exceeds the amount ofcoverage
under another policy. -Also termed excess policy.
Cf. primary insurance. See EXCESS CLAUSE. [Cases:
Insurance C:=-2110, 2394.]
excess-lines insurance. See surplus-lines insurance.
extended insurance. Insurance that continues in force
beyond the date that the last premium was paid by
drawing on its cash value.
extended-term insurance. (1925) Insurance that
remains in effect after a default in paying premiums,
as long as the policy has cash value to pay premiums.
Many life-insurance policies provide this feature to
protect against forfeiture of the policy if the insured
falls behind in premium payments.
family-income insurance. An agreement to pay benefits
for a stated period following the death ofthe insured.
At the end of the payment period, the face value is
paid to the designated beneficiary.
fidelity insurance. An agreement to indemnify an
employer against a loss arising from the lack ofinteg
rity or honesty ofan employee or ofa person holding a
873 insurance
position oftrust, such as a loss from embezzlement.
Also termed fidelity guaranty insurance; fidelity and
guaranty insurance; surety and fidelity insurarlce.
[Cases: Insurance 0:::> 1014.]
fire insurance. An agreement to indemnify against
property damage caused by fire, wind, rain, or other
similar disaster. [Cases: Insurance Cr~1009.)
first-party insurance. (1953) A policy that applies to
an insured or the insured's own property, such as life
insurance, health insurance, disability insurance, and
fire insurance. Also termed indemnity insurance;
self-insurance.
fleet insurance. Insurance that covers a number of
vehicles owned by the same entity.
floater insurance. An agreement to indemnify against
a loss sustained to movable property, wherever its
location within the territorial limit set by the policy.
flood insurance. Insurance that indemnifies against
a loss caused by a flood . This type of insurance is
often sold privately but subsidized by the federal gov
ernment. [Cases: Insurance 0:::>2209-2213.]
fraternal insurance. Life or health insurance issued by
a fraternal benefit society to its members.
general-disability insurance. Disability insurance that
provides benefits to a person who cannot perform any
job that the person is qualified for. Also termed
total-disability insurance. Cf. occupational-disability
insurance. [Cases: Insurance C=2561.]
government insurance. Life insurance underwritten
by the federal government to military personnel,
veterans, and government employees.
group insurance. A form of insurance offered to
a member of a group, such as the employees of a
business, as long as that person remains a member of
the group . Group insurance is typically health or
life (usu. term life) insurance issued under a master
policy between the insurer and the employer, who
usu. pays all or part of the premium for the insured
person. Other groups, such as unions and associa
tions, often offer group insurance to their members.
"'Group Insurance' refers to a method of marketing
standard forms of insurance, such as life insurance,
whereby a master policy is issued to the party negotiating
the contract with the insurer (frequently an employer), and
certificates of partici pation are issued to the individual
insured members of the group (frequently employees)."
John F. Dobbyn, Insurance Law in a Nutshell 13 (2d ed.
1989).
guaranty insurance (gar-,:m-tee). An agreement to
cover a loss resulting from another's default, insol
vency, or specified misconduct. Also termed surety
insurance. [Cases: Insurance ~-::>1014.]
"The term 'guaranty insurance' is generic in its scope and
Signification, and embraces within it those subsidiary
species of insurance contracts known as 'fidelity,' 'com
merCial,' and 'judicial' insurances .... In legal acceptation
guaranty insurance is an agreement whereby one party
(called the 'insurer') for a valuable consideration (termed
the 'premium') agrees to indemnify another (called the
'insured') in a stipulated amount against loss or damage arising through dishonesty, fraud, unfaithful perfor
mance of duty or breach of contract on the part of a third
person ... sustaining a contractual relationship to the
party thus indemnified." Thomas Gold Frost, A Treatise on
Guaranty Insurance 1, at 11 (2d ed. 1909).
health insurance. Insurance covering medical expenses
resulting from sickness or injury. -Also termed
accident and health insurance; sickness and accident
insurance. [Cases: Insurance <>1012.)
homeowner's insurance. Insurance that covers both
damage to the insured's residence and liability claims
made against the insured (esp. those arising from the
insured's negligence).
indemnity insurance. See first-party insurance.
industrial life insurance. See LIFE INSURANCE.
inland marine insurance. An agreement to indemnify
against losses arising from the transport of goods on
domestic waters (Le., rivers, canals, and lakes). Cf.
ocean marine insurance.
insurance ofthe person. Insurance intended to protect
the person, such as life, accident, and disability insur
ance.
interinsurance. See reciprocal insurance.
joint life insurance. See LIFE INSURA.NCE.
judicial insurance. Insurance intended to protect liti
gants and others involved in the court system.
"By judicial insurance reference is had to insurance bonds
or policies issued, in connection with the regular course
ofjudicial or administrative procedure |
judicial insurance reference is had to insurance bonds
or policies issued, in connection with the regular course
ofjudicial or administrative procedure, for the purpose
of securing the faithful performance of duty on the part
of court appointees, to guarantee due compliance with
the terms of undertakings entered into by parties litigant
before the courts, and to secure proper administration of
statute law." Thomas Gold Frost, A Treatise on Guaranty
Insurance 3, at 14 (2d ed. 1909).
key-employee insurance. See key-employee life insur
ance under LIfE INSURANCE.
last-survivor insurance. See last-survivor life insurance
under LIFE INSURANCE.
lease insurance. An agreement to indemnify a lease
holder for the loss of a favorable lease terminated by
damage to the property from a peril covered by the
policy. The amount payable is the difference between
the rent and the actual rental value of the property,
multiplied by the remaining term ofthe lease.
level-premium insurance. Insurance whose premiums
remain constant throughout the life of the agreement.
Most whole life policies are set up this way.
liability insurance. An agreement to cover a loss result
ing from the insured's liability to a third party, such
as a loss incurred by a driver who injures a pedes
trian. The insured's claim under the policy arises
once the insured's liability to a third party has been
asserted. Also termed third-party insurance; pub
lic-liability insurance. [Cases: Insurance 0:::> 1010.]
life insurance. See LIFE INSURANCE.
limited-policy insurance. Insurance that covers only
specified perils; esp., health insurance that covers a
insurance 874
specific type ofillness (such as dread-disease insur
ance) or a risk relating to a stated activity (such as
travel-accident insurance).
Lloyd's insurance. (1897) Insurance provided by
insurers as individuals, rather than as a corporation.
The insurers' liability is several but not joint. Most
states either prohibit or strictly regulate this type of
insurance. See LLOYD'S OF LONDON. [Cases: Insur
ance 1220.]
loss insurance. Insurance purchased by a person who
may suffer a loss at the hands ofanother. This is the
converse of liability insurance, which is purchased by
potential defendants.
malpractice insurance (mal-prak-tis). (1943) An
agreement to indemnify a professional person, such
as a doctor or lawyer, against negligence claims. See
errors-and-omissions itlSurance. [Cases: Insurance
"Most contemporary lawyers regard malpractice insurance
as an expensive, but essential, part of law practice. Its cost,
along with other costs of the lawyer's trade, is ultimately
borne by the consumer, the client who pays the lawyer's
fees.. , . Neither the ABA Code nor the ABA Model Rules
impose an ethical obligation to carry adequate malprac
tice insurance. But contemporary lawyers have found it
prudent to do so, both to protect their personal assets
and to promote their public image as reliable professionals
who are financially responsible." Mortimer D. Schwartz &
Richard C. Wydick, Problems in Legal Ethics 127-28 (2d
ed,1988).
manual-rating insurance. A type of insurance whereby
the premium is set using a book that classifies certain
risks on a general basis, rather than evaluating each
individual case.
marine insurance. An agreement to indemnify against
injury to a ship, cargo, or profits involved in a certain
voyage or for a specific vessel during a fixed period, or
to protect other marine interests. [Cases: Insurance
(::::'2214-2256.]
medigap insurance. See MEDIGAP INSURANCE.
mortgage insurance. 1. An agreement to payoff a
mortgage if the insured dies or becomes disabled.
[Cases: Insurance C=:c2405; Mortgages C=:c20L] 2. An
agreement to provide money to the lender ifthe mort
gagor defaults on the mortgage payments. -Also
termed private mortgage insurance (abbr. PMI).
mutual insurance. A system of insurance (esp. life
insurance) whereby the policyholders become
members of the insurance company, each paying
premiums into a common fund from which each can
draw in the event of a loss.
national-service life insurance. See LIFE INSURANCE.
no-fault auto insurance. An agreement to indemnify
for a loss due to personal injury or property damage
arising from the use of an automobile, regardless
of who caused the accident. [Cases: Insurance
2817-2856,] nonassessable insurance. Insurance in which the
premium is set and the insurer is barred from
demanding additional payments from the insured.
occupational-disability insurance. Disability insur
ance that provides benefits to a person who cannot
perform his or her regular job. [Cases: Insurance C=:c
2561(2).]
occurrence-based liability insurance. Insurance that
covers bodily injuries or property damage suffered
during the policy period . Each instance of injury
or damage is an "occurrence" that may trigger an
insured's entitlement to benefits. The terms ofoccur
rence-based liability insurance policies are usu. broad,
limited only by specific exclusions. Also termed
accident-based insurance. [Cases: Insurance (,,2264,
2265.]
ocean marine insurance. Insurance that covers risks
arising from the transport of goods by sea. Cf.
inland marine itlSurance. [Cases: Insurance
2214-2256.]
old-age and survivors' insurance. See OLD-AGE AND
SURVIVORS' INSURANCE.
ordinary insurance. See ordinary life insurance under
LIFE INSURANCE,
ordinary life insurance. See LIFE INSURANCE.
overinsurance. See OVERINSURANCE.
paid-up insurance. (1871) Insurance that remains in
effect even though no more premiums are due.
participating insurance. A of insurance that
allows a policyholder to dividends. This
insurance is invariably issued by a mutual company.
partnership insurance. 1. Life insurance on the life of a
partner, purchased to ensure the remaining partners'
ability to buyout a deceased partner's interest. Also
termed partnership life insurance. 2. Health insurance
for a partner, payable to the partnership to allow it
to continue to operate while the partner is unable to
work due to illness or injury. Also termed (in both
senses) business-partner insurance.
patent insurance (pat-ant). 1. Insurance against
loss from an infringement of the insured's patent.
2. Insurance against a claim that the insured has
infringed another's patent. 3. Insurance that funds a
claim against a third party for infringing the insured's
patent.
port-risk insurance. Insurance on a vessel lying in port.
Cf. time insurance; voyage insurance.
primary insurance. Insurance that attaches immedi
ately on the happening ofa loss; insurance that is not
contingent on the exhaustion ofan underlying policy.
Cf. excess insurance. [Cases: Insurance C=:c,2110.]
private mortgage insurance. See mortgage insurance.
products-liability insurance. An agreement to indem
nify a manufacturer, supplier, or retailer for a loss
arising from the insured's liability to a user who is
875
harmed by any product manufactured or sold by the
insured. (Cases: Insurance 0::>2296, 2359.]
profit insurance. Insurance that reimburses the insured
for profits lost because of a specified peril.
property insurance. An agreement to indemnify
against property damage or destruction. Also
termed property-damage insurance. [Cases: Insur
ance (;:::> 1009.]
public-liability insurance. See liability insurance.
reciprocal insurance. A system whereby several indi
viduals or businesses act through an agent to under
write one another's risks, making each insured an
insurer of the other members of the group. -Also
termed interinsurance. [Cases: Insurance (;:::>1204.]
reinsurance. See REINSURANCE.
renewable term insurance. Insurance that the insured
may continue at the end of a term. but generally at a
higher premium. -The insured usu. has the right to
renew for additional terms without a medical exami
nation.
replacement insurance. (1938) Insurance under which
the value of the loss is measured by the current cost of
replacing the insured property. See replacement cost
under COST. [Cases: Insurance (;:::>2172, 2184.]
retirement-income insurance. An agreement whereby
the insurance company agrees to pay an annuity
beginning at a certain age if the insured survives
beyond that age, or the value of the policy if the
insured dies before reaching that age.
self-insurance. A plan under which a business main
tains its own special fund to cover any loss. -Unlike
other forms ofinsurance, there is no contract with an
insurance company. Also termed first-party insur
ance. [Cases: Insurance (;:::> 1004.]
sickness and accident insurance. See health insur
ance.
single-premium insurance. See single-premium life
insurance under LIFE INSURANCE.
social insurance. Insurance provided by a government
to persons facing particular perils (such as unemploy
ment or disability) or to persons who have a certain
status (such as the elderly or the blind). -Social insur
ance such as that created by the Social Security Act
of1935 is usu. part of a government's broader social
policy. See WELFARE STATE. [Cases: Social Security
and Public Welfare (;:::> 121-149.5,174-182; Unem
ployment Compensation (;:::> 1.]
split-dollar insurance. See split-dollar life insurance
under LIFE INSURANCE.
step-rate-premium insurance. Insurance whose
premiums increase at times specified in the policy.
stop-loss insurance. Insurance that protects a self
insured employer from catastrophic losses or
unusually large health costs of covered employees.
Stop-loss insurance essentially provides excess
coverage for a self-insured employer. The employer insurance
and the insurance carrier agree to the amount the
employer will cover. and the stop-loss insurance will
cover claims exceeding that amount. [Cases: Insur
ance ~-::>2523, 2525(1).]
straight life insurance. See whole life insurance under
LIFE INSURANCE.
surety andfidelity insurance. See fidelity insurance.
surety insurance. See guaranty insurance.
surplus-lines insurance. Insurance with an insurer that
is not licensed to transact business within the state
where the risk is located. -Also termed excess-lines
insurance. [Cases: Insurance (;::::c 1330.]
term life insurance. See LIFE INSURANCE.
terrorism insurance. Insurance that indemnifies
against losses sustained because of an act of terror
ism. Terrorism insurance has been available since
the 1970s; it was (and is) required for U.S. airports of
almost all sizes. In the mid-1980s, terrorism insur
ance was offered to indiViduals, originally as a form
of travel insurance that provided compensation for
terrorism-related cancellations or changes in itin
erary when traveling to or in certain countries. See
TERRORISM.
third-party insurance. See liability insurance.
time insurance.1l1arine insurance. Insurance covering
the insured for a specified period. Cf. voyage insur
ance.
title insurance. (1889) An agreement to indemnify
against loss arising from a defect in title to real
property, usu. issued to the buyer of the property by
the title company that conducted the title search. Cf.
GUARANTEE OF TITLE. [Cases: Insurance (;:::> 1013.]
''Title insurance is normally written by specialized com
panies that maintain tract indexes: companies involved
in writing life or casualty usually are not involved in title
insurance. Title insurance is an unusual type of insur
ance in a few respects. For one thing, it is not a recurring
policy: There is only a single premium, and a title insurance
policy written on behalf of an owner theoretically remains
outstanding forever to protect him or her from claims
asserted by others. It is more similar to an indemnifica
tion agreement than to an insurance policy. For another,
title insurance companies generally do not take risks that
they know about. Ifthe title search shows that a risk exists,
the company will exclude that risk from the coverage of
the policy."" Robert W. Hamilton, Fundamentals of Modern
Business 84 (1989).
total-disability insurance. See general-disability insur
ance.
travel-accident insurance. Health insurance limited
to injuries sustained while traveling.
umbrella insurance. Insurance that is supplemental,
providing coverage that exceeds the basic or usual
limits ofliability. Also termed bumbershoot insur
ance. [Cases: Insurance (;:::>2110,2394.]
underinsurance. See UNDERINSURANCE.
unemployment insurance. (1897) A type of social
insurance that pays money to workers who are unem
ployed for reasons unrelated to job performance .
876 insurance adjuster
Individual states administer unemployment insur
ance, which is funded by payroll taxes. Also termed
unemployment compensation. lCases: Taxation
3260; Unemployment Compensation 40,60.]
universal life insurance. See LIFE INSURANCE.
variable life insurance. See LIFE INSURANCE. |
universal life insurance. See LIFE INSURANCE.
variable life insurance. See LIFE INSURANCE.
valuable-papers insurance. Insurance covering the
cost of research, labor, and materials necessary to
reconstruct damaged or lost documents and records
-written, printed, or otherwise inscribed includ
ing books, maps, manuscripts, legal documents,
drawings, and films . This insurance does not cover
cash or securities. [Cases: Insurance
voyage insurance. Marine insurance. Insurance
covering the insured between destinations. Cf. time
insurance.
war-risk insurance. 1. Insurance covering damage
caused by war. _ Ocean marine policies are often
written to cover this type of risk. [Cases: Insur
ance 0=2159, 2223.J 2. Life and accident insurance
provided by the federal government to members of
the armed forces . This type of insurance is offered
because the hazardous nature of military service often
prevents military personnel from obtaining private
insurance. [Cases: Armed Services
whole life insurance. See LIFE INSURANCE.
insurance adjuster. (1934) A person who determines
the value of a loss to the insured and settles the claim
against the insurer. -Also termed claims adjuster. See
ADJUSTER. [Cases: Insurance
insurance agent. (1866) A person authorized by an
insurance company to sell its insurance policies.
Also termed producer; (in property insurance) record
ing agent; record agent. [Cases: Insurance G=>1604.J
general agent. An agent with the general power of
making insurance contracts on behalf of an insurer.
[Cases: Insurance G=> 1634(2).J
special agent. An agent whose powers are usu. confined
to soliciting applications for insurance, taking initial
premiums, and delivering policies when issued.
Also termed local agent; solicitor. [Cases: Insurance
G=> 1634(2).J
insurance broker. See BROKER.
insurance certificate. (1865) 1. A document issued by
an insurer as evidence ofinsurance or membership in
an insurance or pension plan. 2. A document issued by
an insurer to a shipper as evidence that a shipment of
goods is covered by a marine insurance policy.
insurance commissioner. (1889) A public official who
supervises the insurance business conducted in a state.
[Cases: Insurance C=) 1029.]
insurance company. (18c) A corporation or association
that issues insurance policies. [Cases: Insurance
1003.J
captive insurance company. A company that insures
the liabilities of its owner . The insured is usu. the sole shareholder and the only customer ofthe captive
insurer. -Also termed captive insurer. [Cases: Insur
ance G=> 1192.J
mixed insurance company. An insurance company
having characteristics of both stock and mutual
companies in that it distributes part of the profits
to stockholders and also makes distributions to the
insureds.
mutual insurance company. An insurance company
whose policyholders are both insurers and insureds
because they pay premiums into a common fund,
from which claims are paid; an insurer whose policy
holders are its owners, as opposed to a stock insurance
company owned by outside shareholders. Cf. stock
insurance company. [Cases: Insurance G':::J 1121.]
"Mutual insurance companies are organized by a number
of persons for the purpose of transacting some particular
insurance business .... A company is a mutual one when
the persons constituting the company contribute either
cash or assessable premium notes, or both, to a common
fund, out of which each is entitled to indemnity in case of
loss. The distinguishing feature is mutuality, evidenced
by the cooperation of members, uniting for that purpose,
each taking a proportionate part in the management of its
affairs and being at once insurer and insured. contributing
to a fund from which all losses are paid .... Democratic
ownership and control is a fundamental characteristic of a
mutual insurance company." 18John Alan Appleman, Insur
ance Law and Practice 10041, at 79-80 (1945).
stock insurance company. An insurance company
operated as a private corporation and owned by
stockholders who share in the company's profits and
losses.
stock life-insurance company. A stock insurance
company that does life-insurance business.
insurance fraud. See FRAUD.
insurance ofthe person. See INSURANCE.
insurance policy, (1869) 1. A contract of insurance. 2. A
document detailing such a contract. -Often shortened
to policy. Also termed policy ofinsurance; contract
ofinsurance.
accident policy. A type of business or personal policy
that insures against loss resulting directly from acci
dental bodily injuries sustained during the policy
term. [Cases: Insurance <.r"::;) 1012, 1716.J
assessable policy. 1. A policy under which a policy
holder may be held liable for losses of the insurance
company beyond its reserves. -Also termed assess
able insurance. 2. See assessable insurance (1) under
INSURANCE.
bailee policy. A floating policy that covers goods in a
bailee's possession but does not particularly describe
the covered goods.
basic-form policy. (1997) A policy that offers limited
coverage against loss . A basic-form policy generally
covers damages from fire, windstorm, explosion, riot,
vehicles, theft, or vandalism. -Also termed
limited policy; specific policy.
877 insurance policy
blanket policy. (1894) An agreement to indemnify
all property, regardless oflocation. -Also termed
compound policy; floating policy.
block policy. An all-risk policy that covers groups of
property (such as property held in bailment or a busi
ness's merchandise) against most perils. See all-risk
insurance under INSURANCE.
broad-form policy. (1950) A policy that offers broad
protection with few limitations. -1bis policy offers
greater coverage than a basic-form policy, but less
than an open-perils policy.
claims-made policy. (1974) An agreement to indem
nify against all claims made during a specified period,
regardless ofwhen the incidents that gave rise to the
claims occurred. Also termed discovery policy.
lCases: Insurance
closed policy. An insurance policy whose terms cannot
be changed. - A fraternal benefit society is not per
mitted to write closed policies. Also termed closed
insurance contract.
commercial general-liability policy. A comprehensive
policy that covers most commercial risks, liabilities,
and causes ofloss. -This type of policy covers both
business losses and situations in which a business is
liable to a third party for personal injury or property
damage. First introduced in 1986, this policy has
largely replaced comprehensive general-liability
policies. -Abbr. CGL policy. Cf. comprehensive
general-liability policy.
completed-operations policy. A policy usu. purchased
by a building contractor to cover accidents arising
out of a job or an operation that the contractor has
completed.lCases: Insurance <::=2296.]
compound policy. See blanket policy.
comprehensive general-liability policy. (1943) A
broad-coverage commercial insurance policy
covering a variety ofgeneral risks, esp. bodily injury
and property damage to a third party for which
the business entity is liable . This policy was first
offered in 1940. It has largely been replaced by the
commercial-general liability policy. -Also termed
CGL policy; general-liability policy. Cf. commercial
general-liability policy.
concurrent policy. (1937) One oftwo or more insurance
policies that cover the same risk. _ Concurrent insur
ance policies are stated in almost identical terms so
that liability can be apportioned between the insurers.
[Cases: Insurance~2107.]
continuous policy. See perpetual policy.
corrected policy. A policy issued after a redetermina
tion of risk to correct a misstatement in the original
policy.
deferred-dividend insurance policy. Hist. A life insur
ance policy that accumulated a fixed percentage ofthe
insurer's surplus profits, payable as a lump sum on a
certain date or at the insured's death, whichever came
first. [Cases: Insurance discovery policy. See claims-made policy.
drummer floater policy. Hist. A policy that covered
the goods carried by a commercial salesperson while
traveling.
endowment policy. A life-insurance policy payable at
the end ofa specified period, if the insured survives
that period, or upon the insured's death if death
occurs before the end of the period.
excess policy. See excess insurance under INSURANCE.
extended policy. A policy that rema! ns In effect beyond
the time when premiums are no longer paid.
flier policy. Hist. A policy issued at a very low rate near
the end of the year for the purpose of swelling the
insurance agent's annual-sales figures. -Also spelled
flyer policy.
floating policy. An insurance policy covering property
that frequently changes in quantity or location, such
as jewelry. -Also termed running policy; blanket
policy.
following-form policy. An insurance policy that adopts
the terms and conditions ofanother insurance policy.
[Cases: Insurance <::=3615.]
gambling policy. See wager policy.
graveyard insurance. See wager policy.
group policy. See master policy.
homeowner's policy. A multiperil policy provid
ing coverage for a variety of risks, including loss by
fire, water, burglary, and the homeowner's negligent
conduct.
incontestable policy. (1897) A policy containing a pro
vision that prohibits the insurer from contesting or
canceling the policy on the basis ofstatements made
in the application. lCases: Insurance C":::>3121.J
interest policy. A policy whose terms indicate that the
insured has an interest in the subject matter of the
insurance. Cf. wager policy.
joint life policy. (1927) A life-insurance policy that
matures and becomes due upon the death of any of
those jointly insured.
lapsed policy. (1873) 1. An insurance policy on which
there has been a default in premium payments. [Cases:
Insurance <::=2039.] 2. An insurance policy that,
because ofstatutory provisions, remains in force after
a default in premium payments. _ Statutes normally
proVide a 30-or 31-day grace period after nonpay
ment ofpremiums. [Cases: Insurance <::=2018.]
level-rate legal-reserve policy. A policy that seeks to
build a reserve equal to the policy's face value by the
end of the insured's life.
life policy. A life-insurance policy that requires lifetime
annual fixed premiums and that becomes payable only
on the death of the insured. -Also termed regular
life policy. [Cases: Insurance (,=1011, 1716.]
878 insurance pool
limited policy. (1884) 1. An insurance policy that spe
cifically excludes certain classes or types of loss. 2.
See basic-form policy.
manuscript policy. (1962) An insurance policy contain
ing nonstandard provisions that have been negotiated
between the insurer and the insured.
master policy. (1926) An insurance policy that covers
multiple insureds under a group-insurance plan.
Also termed group policy. See group insurance under
INSURANCE.
mixed policy. Marine insurance. A policy combining
aspects ofboth a voyage policy and a time policy.
multiperil policy. (1951) An insurance policy that
covers several types oflosses, such as a homeowner's
policy that covers losses from fire, theft, and personal
injury. Also termed named-perils policy.
nonmedical policy. An insurance policy issued without
a prior medical examination of the applicant.
occurrence policy. An agreement to indemnify for
any loss from an event that occurs within the policy
period, regardless ofwhen the claim is made. [Cases:
Insurance C::'2264.J
open-perils policy. (1997) A property insurance policy
covering all risks against loss except those specifically
excluded from coverage.
open policy. See unvalued policy.
package policy. An insurance policy prOViding pro
tection against multiple perils and losses ofboth the
insured and third parties. A homeowner's policy is
usu. a package policy.
paid-up policy. A policy that remains in effect after
premiums are no longer due.
participating policy. A policy that allows the holder a
right to dividends or rebates from future premiums .
This type of policy is issued by a mutual company.
permanent policy. A renewable policy that is effective
for a specified period and is terminable by either the
insurer or the insured after giving express notice.
perpetual policy. An insurance policy that remains
effective without renewal until one of the parties
terminates it according to its terms. Also termed
continuous policy.
regular life policy. See life policy.
runningpolicy. See floating policy.
specific policy. See basicjorm policy.
standard policy. (1893) 1. An insurance policy pro
viding insurance that is recommended or required
by state law, usu. regulated by a state agency. [Cases:
Insurance 1775.] 2. An insurance policy that
contains standard terms used for similar insurance
policies nationwide, usu. drafted by an insurance
industrial association such as Insurance Services
Office.
survivorship policy. A joint life policy that is payable
after all the insureds have died. term policy. A life-insurance policy that gives protec
tion for a specified period, but that does not have a
cash value or reserve value.
time policy. (1852) An insurance policy that is effective
only during a specified period.
tontine policy (tahn-teen or tahn-teen). An insurance
policy in which a group ofparticipants share advan
tages so that upon the default or death of any par
ticipant, his or her advantages are distributed among
the remaining participants until only one remains |
ages so that upon the default or death of any par
ticipant, his or her advantages are distributed among
the remaining participants until only one remains,
whereupon the whole goes to that sale participant.
Under the tontine plan ofinsurance, no accumulation
or earnings are credited to the policy unless it remains
in force for the tontine period of a specified number
ofyears. Thus, those who survive the period and keep
their policies in force share in the accumulated funds,
and those who die or permit their policies to lapse
during the period do not. This type ofpolicy takes its
name from Lorenzo Tonti, an Italian who invented it
in the 17th century. Today, newer and more ingenious
forms ofinsurance have largely made tontine
defunct. See TONTINE. [Cases: Insurance
umbrella policy. An insurance policy covering losses
that exceed the basic or usual limits of liability
provided by other policies. See umbrella insurance
under INSURANCE. [Cases: Insurance
2394.J
unvalued policy. A policy that does not state a value
of the insured property but that, upon loss, requires
proof of the property's worth. -Also termed open
policy.
valued policy. An insurance policy in which the sum
to be paid when a loss occurs is fixed by the terms
of the contract. The value agreed on is conclusive
for a total loss and provides a basis for determining
recovery in cases of partial loss. This value is in the
nature ofliquidated damages. [Cases: Insurance
2171.]
voyage policy. A marine-insurance policy that insures
a vessel or its cargo during a specified voyage.
wager policy. An insurance policy issued to a person
who is shown to have no insurable interest in the
person or property covered by the policy. Wager
poliCies are illegal in most states. -Also termed
gambling policy; graveyard insurance. See insurable
interest under INTEREST (2). Cf. interest policy. [Cases:
Insurance
insurance pool. (1935) A group of several insurers that,
to spread the risk, combine and share premiums and
losses.
insurance premium. See PREMIUM (1).
insurance rating. (1905) The process by which an
insurer arrives at a policy premium for a particular
risk. Often shortened to rating. [Cases: Insurance
C::'154LJ
Insurance Services Office. A nonprofit organization that
provides analytical and decision-support services and
879
tools to the insurance industry, including statistical,
actuarial, underwriting, and claims data, and drafts of
model insurance policy forms and coverage provisions.
-The organization is composed of member insurers.
It provides data and information to its members and
also to nonmember subscribers, such as risk managers,
insurance regulators, and self-insureds. Abbr. ISO.
insurance trust. See TRUST.
insurance underwriter. See UNDERWRITER.
insurant, n. A person who obtains insurance or to whom
an insurance policy is issued. -This term is much less
common than the attributive noun insured.
insure, vb. (17c) 1. To secure, by payment ofa premium,
the payment of a sum of money in the event ofa loss.
[Cases: Insurance (:=::> 1001.] 2. To issue or procure an
insurance policy on or for (someone or something).
insured, n. (17c) A person who is covered or protected
by an insurance policy. -Also termed assured. [Cases:
Insurance (::='2100.J
additional insured. (1929) A person who is covered
by an insurance policy but who is not the primary
insured. -An additional insured may, or may not,
be specifically named in the policy. If the person is
named, then the term is sometimes named additional
insured. -Also termed secondary insured. [Cases:
Insurance (::='2100.]
class-one insured. (1982) In a motor-vehicle policy,
the named insured and any relative residing with the
named insured. [Cases: Insurance C::>2660.J
class-two insured. (1985) In a motor-vehicle policy, a
person lawfully occupying a vehicle at the time ofan
accident. [Cases: Insurance (:=::>2660.]
first-named insured. See primary insured.
named insured. (1899) A person designated in an insur
ance policy as the one covered by the policy. [Cases:
Insurance (:=::>2100.]
primary insured. The individual or entity whose name
appears first in the declarations of an insurance
policy. Also termed first-named insured.
insurer. (I7c) One who agrees, by contract, to assume
the risk of another's loss and to compensate for that
loss. -Also termed underwriter; insurance under
writer; carrier; assurer (for life insurance). [Cases:
Insurance (:=::> 1002.]
excess insurer. An insurer who is liable for settling any
part ofa claim not covered by an insured's primary
insurer. Also termed secondary insurer. Seeprimary
insurer. [Cases: Insurance (:=::>2110.)
primary insurer. An insurer who is contractually com
mitted to settling a claim up to the applicable policy
limit before any other insurer becomes liable for any
part of the same claim. See excess insurer. [Cases:
Insurance (::=02110.)
quasi-insurer. (1830) A service provider who is held to
strict liability in the provision ofservices, such as an
innkeeper or a common carrier. intangible drilling cost
secondary insurer. See excess insurer.
insurgent, n. (I8c) A person who, for political purposes,
engages in armed hostility against an established gov
ernment. -insurgent, adj. -insurgency, n.
insuring agreement. See INSURING CLAllSE.
insuring clause. A provision in an insurance policy
or bond reciting the risk assumed by the insurer or
establishing the scope ofthe coverage. -Also termed
insuring agreement. [Cases: Insurance (::=2097.)
insurrection. (lSc) A violent revolt against an oppressive
authority, usu. a government.
"Insurrection is distinguished from rout, riot, and offense
connected with mob violence by the fact that in insurrection
there is an organized and armed uprising against authority
or operations of government, while crimes growing out of
mob violence. however serious they may be and however
numerous the participants, are simply unlawful acts in dis
turbance of the peace which do not threaten the stability
of the government or the eXistence of political SOCiety." 77
c.j.S, Riot; Insurrection 29, at 579 (1994).
intact family. See FAMILY.
in tail. See TAIL.
intake, n. (1943) 1. The official screening of a juvenile
charged with an offense in order to determine where to
determine where to place the juvenile pending formal
adjudication or informal disposition. 2. The body of
officers who conduct this screening. 3. Hist. English law.
A piece ofland temporarily taken from a common or
moorland by a tenant to raise a crop.
intake day. (1985) The day on which new cases are
assigned to the courts.
intaker. Hist. See FENCE (1).
intangible, adj. (17c) Not capable of being touched;
impalpable; INCORPOREAL.
intangible, n. (1914) Something that lacks a physical
form; an abstraction, such as responsibility; esp.,
an asset that is not corporeal, such as intellectual
property.
general intangible. (1935) Any personal property
other than goods, accounts, chattel paper, docu
ments, instruments, investment property, rights to
proceeds ofwritten letters of credit, and money. _
Some examples are goodwill, things in action, and
literary rights. DCC 9-102(a)(42). See intangible
property under PROPERTY. [Cases: Secured Transac
tions (;:::) 11.1, 14.1, 115.1.]
payment intangible. (1996) A general intangible under
which the account debtor's principal obligation is a
monetary obligation. DCC 9-102(a)(61).
intangible asset. 1. See ASSET. 2. See INTANGIBLE TRADE
VALUE.
intangible drilling cost. Oil & gas. An expense that is
incident to and necessary for drilling and completing
an oil or gas well and that has no salvage value . Intan
gible drilling costs may be deducted in the year they
are incurred rather than capitalized and depreciated.
26 DSCA 612.
880 intangible movable
intangible movable. See MOVABLE.
intangible property. See PROPERTY.
intangible-rights doctrine. The rule that a person is
entitled to receive honest services from those in the
public sector or in the private sector who have fiduciary
duties to the person . Public-sector intangible rights
derive from public officials' implied fiduciary duty to
make governmental decisions in the public interest.
Private-sector intangible rights arise out of fiduciary
relationships. The intangible-rights doctrine is codified
at 18 USCA 1346. -Also termed honest-services
doctrine. [Cases: Postal Service C=>35(9).]
intangible tax. See TAX.
intangible thing. See incorporeal thing under THING.
intangible trade property. See INTANGIBLE TRADE
VALUE.
intangible trade value. Intellectual property. The
measure of an enterprise's proprietary information,
ideas, goodwill, and other nonphysical commercial
assets. The law of misappropriation provides some
protection against the taking ofintangible trade values
to compete unfairly with their original owner. -Also
termed intangible asset; intangible trade property.
in tantum (in tan-tJm). [Latin] Hist. To that extent;
insofar. Cf. PRO TANTO.
integer (in-tJ-jJr), adj. [Latin] Archaic. Whole; untouched.
See RES NOVA.
integrated agreement. See INTEGRATED CONTRACT.
integrated bar. See BAR.
integrated contract. (1930) One or more writings con
stituting a final expression of one or more terms of an
agreement. -Also termed integrated agreement; inte
grated writing. See INTEGRATION (2). [Cases: Contracts
C=>245; Evidence C=>397(2).]
completely integrated contract. (1950) An integrated
agreement adopted by the parties as a full and exclu
sive statement of the terms of the agreement . 1he
parties are therefore prohibited from varying or
supplementing the contractual terms through parol
(extrinsic) evidence. [Cases: Evidence C=>397(2).]
partially integrated contract. (1958) An agreement in
which some, but not all, of the terms are integrated;
any agreement other than a completely integrated
agreement. [Cases: Evidence C=>397(2).]
integrated property settlement. See PROPERTY SETTLE
MENT (2).
integrated writing. See INTEGRATED CONTRACT.
integration. (l7c) 1. The process of making whole or
combining into one. 2. Contracts. The full expression
ofthe parties' agreement, so that all earlier agreements
are superseded, the effect being that neither party may
later contradict or add to the contractual terms. -Also
termed merger. See PAROL-EVIDENCE RULE. [Cases:
Contracts C=>245; Evidence C=>397(2).] complete integration. (1930) The fact or state of fully
expressing the intent ofthe parties . Parol evidence is
therefore inadmissible. [Cases: Evidence C=>397(2).]
partial integration. (1910) The fact or state ofnot fully
expressing the parties' intent. Parol (extrinsic)
evidence is admissible to clear up ambiguities with
respect to the terms that are not integrated. [Cases:
Evidence C=>397(2).]
3. Wills & estates. The combining of more than one
writing into a single document to form the testator's last
will and testament. The other writing must be present
at the time of execution and intended to be included
in the will. The issue of integration is more compli
cated when it concerns a holographic will, which may
be composed of more than one document written at
different times. 4. The incorporation of different races
into existing institutions (such as public schools) for the
purpose ofreversing the historical effects ofracial dis
crimination. Cf. DESEGREGATION. [Cases: Schools C=>
13(4).] 5. Antitrust. A firm's performance ofa function
that it could have obtained on the open market. A
firm can achieve integration by entering a new market
on its own, by acquiring a firm that operates in a sec
ondary market, or by entering into a contract with
a firm that operates in a secondary market. -Also
termed vertical integration. See vertical merger under
MERGER.
backward integration. A firm's acquisition of owner
ship of facilities that produce raw materials or parts
for the firm's products.
6. Securities. The requirement that all security offer
ings over a given period are to be considered a single
offering for purposes of determining an exemption
from registration . The Securities and Exchange
Commission and the courts apply five criteria to deter
mine whether two or more transactions are part ofthe
same offering of securities: (1) whether the offerings
are part of a single plan of financing, (2) whether the
offerings involve issuance of the same class of securi
ties, (3) whether the offerings are made at or about the
same time, (4) whether the same type ofconsideration
is received, and (5) whether the offerings are made for
the same general purpose. 17 CFR 230.502. [Cases:
Securities Regulation C=> 18.14.]
integration clause. (1941) A contractual provision stating
that the contract represents the parties' complete and
final |
4.]
integration clause. (1941) A contractual provision stating
that the contract represents the parties' complete and
final agreement and supersedes all informal under
standings and oral agreements relating to the subject
matter of the contract. -Also termed merger clause;
entire-agreement clause. See INTEGRATION (2); PAROL
EVIDENCE RULE. [Cases: Contracts C=>245; Evidence
C=>397(2).]
integration rule. (1899) The rule that if the parties to
a contract have embodied their agreement in a final
document, any other action or statement is without
effect and is immaterial in determining the terms of
the contract. See PAROL EVIDENCE RULE. [Cases: Con
tracts C=>245; Evidence C=>397(2).]
integrity right. Copyright. The right of authors and
artists to insist that their creative works not be changed
without their authorization . Integrity is one of the
moral rights of the moral rights of artists recognized
in civil-law countries, including much of Europe, but
largely unavailable in the United States. Cf. MORAL
RIGHT; ATTRIBUTION RIGHT. [Cases: Copyrights and
Intellectual Property C-~6.1
intellectual property. (1808) 1. A category ofintangible
rights protecting commercially valuable products of
the human intellect. The category comprises primar
ily trademark, copyright, and patent rights, but also
includes trade-secret rights, publicity rights, moral
rights, and rights against unfair competition. [Cases:
Copyrights and Intellectual Property (;::::> 1.] 2. A com
mercially valuable product of the human intellect, in
a concrete or abstract form, such as a copyrightable
work, a protectable trademark, a patentable invention,
or a trade secret. -Abbr. IP.
"While there is a close relationship between intangible
property and the tangible objects in which they are
embodied, intellectual property rights are distinct and
separate from property rights in tangible goods. For
example, when a person posts a letter to someone, the
personal property in the ink and parchment is transferred
to the recipient .... [Tlhe sender (as author) retains intel
lectual property rights in the letter." Lionel Bently & Brad
Sherman, Intellectual Property Law 1-2 (2001).
intemperance. (ISc) A lack of moderation or temper
ance; esp., habitual or excessive drinking of alcoholic
beverages. [Cases: Chemical Dependents C~1.J
in tempus indebitum (in tem-p<ls in-deb-i-t<lm). [Law
Latin] Hist. At an undue time.
intend, vb. (14c) 1. To have in mind a fixed purpose
to reach a desired objective; to have as one's purpose
<Daniel intended to become a lawyer>. 2. To con
template that the usual consequences of one's act will
probably or necessarily follow from the act, whether or
not those consequences are desired for their own sake
<although he activated the theater's fire alarm only on
a dare, the jury found that Wilbur intended to cause
a panic>. 3. To signify or mean <the parties intended
for the writing to supersede their earlier handshake
deal>.
intendant (in-ten-d<lnt). A director of a government
agency, esp. (as used in 17th-and 18th-century France)
a royal official charged with the administration of
justice or finance.
intended beneficiary. See BENEFICIARY.
intended child. See CHILD.
intended parent. See intentional parent under PARENT.
intended to be recorded. (I8c) (Ofa deed or other instru
ment) not yet filed with a public registry, but forming
a link in a chain oftitle. [Cases: Deeds ~~88; Records
19.1
intended-use doctrine. (1967) Products liability. The rule
imposing a duty on a manufacturer to develop a product
so that it is reasonably safe for its intended or foresee
able users . In determining the scope ofresponsibility, the court considers the defendant's marketing scheme
and the foreseeability of the harm. [Cases: Products
Liability 151.]
intendment (in-tend-m;mt). (14c) 1. The sense in which
the law understands something <the intendment of a
contract is that the contract is legally enforceable>.
Also termed intendment oflaw. 2. A decision-maker's
inference about the true meaning or intention of a
legal instrument <there is no need for intendment, the
court reasoned, when the text ofthe statute is clear>.
Formerly also spelled entendment.
common intendment. The natural or common meaning
in legal interpretation.
3. A person's expectations when interacting with others
within the legal sphere.
"Our institutions and our formalized interactions with one
another are accompanied by certain interlocking expecta
tions that may be called intendments, even thoug h there
is seldom occaSion to bring these underlying expectations
across the threshold of consciousness. In a very real sense
when I cast my vote in an election my conduct is directed
and conditioned by an anticipation that my ballot will be
counted in favor of the candidate I actually vote for. This
is true even though the possibility that my ballot will be
thrown in the wastebasket, or counted for the wrong man,
may never enter my mind as an object of conscious atten
tion. In this sense the institution of elections may be said
to contain an intendment that the votes cast will be faith
fully tallied, though I might hesitate to say, except in a
mood of rhetoric, that the election authorities had entered
a contract with me to count my vote as I had cast it." Lon L.
Fuller, The Morality ofLaw 217 (rev. ed. 1969).
intent. (l3c) 1. lhe state ofmind accompanying an act,
esp. a forbidden act. While motive is the inducement
to do some act, intent is the mental resolution or deter
mination to do it. When the intent to do an act that
violates the law exists, motive becomes immaterial. Cf.
MOTIVE; SCIENTER.
"The phrase 'with intent to,' or its equivalents, may mean
anyone of at least four different things: (1) That the
intent referred to must be the sole or exclUSive intent; (2)
that it is sufficient if it is one of several concurrent intents;
(3) that it must be the chief or dominant intent, any others
being subordinate or inCidental; (4) that it must be a deter
mining intent, that is to say, an intent in the absence of
which the act would not have been done, the remaining
purposes being insuffiCient motives by themselves. It is a
question of construction which of those meanings is the
true one in the particular case." John Salmond, Jurispru,
dence 383-84 (Glanville L. Williams ed., 10th ed. 1947).
constructive intent. (1864) A legal principle that actual
intent will be presumed when an act leading to the
result could have been reasonably expected to cause
that result.
"Constructive intent is a fiction which permits lip service
to the notion that intention is essential to criminality, while
recognizing that unintended consequences of an act may
sometimes be sufficient for gUilt of some offenses." Rollin
M. Perkins & Ronald N. Boyce, Criminal Law 835 (3d ed.
1982).
criminal intent. (17c) 1. MENS REA. 2. An intent to
commit an actus reus without any justification,
excuse, or other defense. Also termed felonious
intent. See specific intent. [Cases: Criminal Law
20.)
"The phrase 'criminal intent' is one that has been bandied
about with various meanings not carefully distinguished.
At times it has been used in the sense of the 'intent to do
wrong' (the olltline of the mental pattern which is necessary
for crime in general), as, for example, in the phrase 'the
mental element commonly called criminal intent.' At times
it has been used in the sense of mens rea as the mental
element requisite for guilt of the very offense charged, 'a
varying state of mind which is the contrary of an innocent
state of mind, whatever may be pointed out by the nature of
the crime as an innocent state of mind.' Often it is used to
include criminal negligence as well as an actual intent to do
the harmful deed, although at other times such negligence
is referred to as a substitute, so to speak, for criminal intent
in connection with certain offenses. Occasionally it is found
in the sense of an intent to violate the law, -implying a
knowledge of the law violated. On the other hand, as such
knowledge is a factor not ordinarily required for convic
tion it has been pointed out that to establish ignorance
of the law does not disprove criminal intent. Thus it has
been said (assuming the absence of any circumstance of
exculpation) 'whenever an act is criminal, the party doing
the act is chargeable with criminal intent: ... This suggests
a helpful guide for the use of the phrase 'criminal intent.'
Some other term such as mens rea or guilty mind should be
employed for more general purposes, and 'criminal intent'
be restricted to those situations in which there is (l) an
intent to do the actus reus, and (2) no circumstance of
eXCUlpation." Rollin M. Perkins & Ronald N. Boyce, Criminal
Low 832-34 (3d ed. 1982).
donative intent. The intent to surrender dominion and
control over the gift that is being made. [Cases: Gifts
15,60.)
felonious intent. See criminal intent.
general intent. (17c) The intent to perform an act even
though the actor does not desire the consequences
that result. _ This is the state of mind required for
the commission ofcertain common-law crimes not
requiring a specific intent or not imposing strict
liability. General intent usu. takes the form of reck
lessness (involving actual awareness ofa risk and the
culpable taking of that risk) or negligence (involving
blameworthy inadvertence). -Also termed general
criminal intent; general mens rea. [Cases: Criminal
Law
immediate intent. (18c) The intent relating to a
wrongful act; the part of the total intent coincident
with the wrongful act itself.
implied intent. (l8c) A person's state of mind that
can be inferred from speech or conduct, or from
language used in an instrument to which the person
is a party.
intent to kill. (16c) An intent to cause the death of
another; esp., a state of mind that, if found to exist
during an assault, can serve as the basis for an aggra
vated-assault charge. [Cases: Assault and Battery (;:::
49; Homicide C=:>526.)
larcenous intent. (1832) A state ofmind existing when a
person (1) knowingly takes away the goods ofanother
without any claim or pretense of a right to do so, and
(2) intends to permanently deprive the owner ofthem or to convert the goods to personal use. See LARCENY.
[Cases: Larceny C=:>3.)
manifest intent. (l7c) Intent that is apparent or obvious
based on the available circumstantial evidence, even
if direct evidence of intent is not available. -For
example, some fidelity bonds cover an employer's
losses caused by an employee's dishonest or fraudu
lent acts committed with a manifest intent to cause
a loss to the employer and to obtain a benefit for the
employee. Establishing manifest intent sufficient to
trigger coverage does not require direct evidence that
the employee intended the employer's loss. Even if
the employee did not actively want that result, but
the result was substantially certain to follow from
the employee's conduct, the requisite intent will be
inferred.
predatory intent. Antitrust. A business's intent to
injure a competitor by unfair means, esp. by sacrific
ing revenues to drive a competitor out of business.
[Cases: Antitrust and Trade Regulation
specific intent. (18c) The intent to accomplish the
precise criminal act that one is later charged with.
-At common law, the specific-intent crimes were
robbery, assault, larceny, burglary, forgery, false
pretenses, embezzlement, attempt, solicitation, and
conspiracy. Also termed criminal intent. See SPE
CIFIC-INTENT DEFENSE. [Cases: Criminal Law
20.]
testamentary intent. (1830) A testator's intent that a
particular instrument function as his or her last will
and testament . Testamentary intent is required for
a will to be valid. [Cases: Wills (~'438.)
transferred intent. (1932) Intent that the law may
shift from an originally intended wrongful act to a
wrongful act actually committed. -For example, if
a person intends to kill one person but kills another
inadvertently, the intent may be transferred to the
actual act. See TRANSFERRED-INTENT DOCTRINE.
[Cases: Criminal Law C=:>25; Homicide
702,731.)
ulterior intent. (1848) The intent that passes beyond a
wrongful act and relates to the objective for the sake
of which the act is done; MOTIVE. -For example, a
thief's immediate intent may be to steal another's
money, but the ulterior intent may be to buy food
with that money.
2. A lawmaker's state of mind and purpose in drafting
or voting for a measure. [Cases: Statutes 181(1),
184.]
legislative intent. See LEGISLATIVE INTENT.
original intent. (17c) The mental state ofthe drafters or
enactors of the U.S. Constitution, a statute, or another
document.
intentio (in-ten-shee-oh), n. [Latin]l. Roman law. The
part ofa formula in which the plaintiff's claim against
the defendant is stated. See FORMULA (1). 2. Hist. A
count or declaration in a real action . Intentio was
an earlier name for narratio. See NARRATIO. PI. inten
tiones (in-ten-shee-oh-neez).
intention, n. (14c) The willingness to bring about some
thing planned or foreseen; the state ofbeing set to do
something. intentional, adj.
"Intention is |
some
thing planned or foreseen; the state ofbeing set to do
something. intentional, adj.
"Intention is the purpose or design with which an act is
done. It is the foreknowledge of the act, coupled with the
desire of it, such foreknowledge and desire being the cause
of the act, inasmuch as they fulfil themselves through the
operation of the will. An act is intentional if, and in so far
as, it exists in idea before it exists in fact, the idea realis
ing itself in the fact because of the desire by which it is
accompanied." John Salmond, Jurisprudence 378 (Glanville
L. Williams ed., 10th ed. 1947).
"Intention. This signifies full advertence in the mind of
the defendant to his conduct, which is in question, and to
its consequences, together with a desire for those conse
quences." P.H. Winfield, A Textbook ofthe Law ofTort 10,
at 19 (5th ed. 1950).
intentional, adj. (17c) Done with the aim of carrying
out the act.
intentional act. See ACT.
intentional father. See intentional parent under PARENT.
intentional fraud. See FRAUD (1).
intentional infliction of emotional distress. (1958)
The tort of intentionally or recklessly causing another
person severe emotional distress through one's extreme
or outrageous acts . In a few jurisdictions, a physical
manifestation of the mental suffering is required for
the plaintiff to recover. Abbr. IIED. Also termed
(in some states) outrage. See EMOTIONAL DISTRESS.
Cf. NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS.
[Cases: Damages (;::~'S7.19.]
intentional-injury exclusion. See expectedlintended
exclusion under EXCLUSION (3).
intentional invasion. See INVASION.
intentional manslaughter. See voluntary manslaughter
under MANSLAUGHTER.
intentional mother. See intentional parent under
PARENT.
intentional parent. See PARENT.
intentional tort. See TORT.
intentional wrong. See WRONG.
intent ofthe legislature. See LEGISLATIVE INTENT.
intent to kill. See INTENT (1).
intent to publish. Defamation. The intent to communi
cate (defamatory words, etc.) to a third person or with
knowledge that the communication will probably reach
third persons. See PUBLISH (2).
intent to use. See BONA FIDE INTENT TO USE.
intent-to-use application. See TRADEMARK APPLICA
TION.
inter (in-tJr), prep. [Latin] Among.
inter alia (in-tJr ay-Iee-J or ah-Iee-J), adv. [Latin] (l7c)
Among other things. inter alios (in-tJr ay-Iee-J$ or ah-Iee-Js), adv. [Latin] (17c)
Among other persons.
Inter-American Bar Association. An organization of
lawyers from North America, Central America, and
South America whose purpose is to promote educa
tion, cooperation, and profeSSional exchanges among
lawyers from different American countries. Abbr.
IABA.
Inter-American Foundation. An independent federal
foundation that supports social and economic develop
ment in Latin America and the Caribbean by making
grants to private, indigenous organizations that carry
out self-help projects benefiting poor people. 'lbe
agency is governed by a nine-member board six from
the private sector and three from the government. It
was created in 1969 as an experimental foreign-assis
tance program. 22 USCA 290f. Abbr. lAP.
inter apices juris (in-tJr aY-PJ-seez [or ap-d-seez] joor
is), adv. [Law Latin] Among the subtleties of the law.
See APEX fURlS.
intercalare (in-tdr-b-Iair-ee), vb. [Latin] Civil law. To
introduce or insert among others; esp., to introduce
a day or month into the calendar. From this Latin
term derives the rare English word intercalate, roughly
synonymous with interpolate.
intercedere (in-tdr-see-dd-ree), vb. [Latin] Roman law.
To assume another's debt; esp., to act as surety for
another.
intercept, n. Jiamily law. A mechanism by which a
portion of an obligor's unemployment benefits, disabil
ity income, income-tax refund, or lottery winnings is
automatically diverted to a child-support -enforcement
agency to satisfy past-due support obligations. [Cases:
Child Support (;::=>442,467.]
intercept, vb. (ISc) 1. To divert (money) from a payee to
satisfy a financial obligation ofthe payee. 2. To covertly
receive or listen to (a communication) . The term usu.
refers to covert reception by a law-enforcement agency.
See WIRETAPPING. [Cases: Telecommunications (;:::)
1435.]
interchangeable bond. See BOND (3).
intercommon, vb. 1. To share in the rights to a common.
2. Rist. Scots law. To communicate or deal with (crimi
nals or others). 3. Hist. Scots law. To prohibit (a person)
from communicating or dealing with a criminal.
inter conjuges (in-tdr kahn-jd-geez), adv. & adj. [Law
Latin] Between husband and wife.
interconjunctas personas (in-tdr bn-jangk-tds pdr-soh
nds). [Latin] Hist. Between conjunct persons. Gen
erally, conveyances between certain family members
were void ifdesigned to defraud.
intercountry adoption. See international adoption
under ADOPTION.
intercourse. (ISc) 1. Dealings or communications, esp.
between businesses, governmental entities, or the like.
2. PhYSical sexual contact, esp. involving the penetra
tion ofthe vagina by the penis.
884 interdependence
interdependence. Int'llaw. The reliance of countries
on each other to ensure their mutual subsistence and
advancement.
interdict (in-tdr-dikt), n. (ISc) Roman & civil law. 1. An
injunction or other prohibitory, exhibitory, or restitu
tory decree.
decretal interdict (di-kreet-dl). An interdict that sig
nified the praetor's order or decree by applying the
remedy in a pending case.
edictal interdict (ee-dik-tdl). An interdict that declared
the praetor's intention to give a remedy in certain
cases, usu. in a way that preserves or restores pos
session.
exhibitory interdict. An interdict by which a praetor
compelled a person or thing to be produced.
possessory interdict. An interdict that protected a
person whose possession was disturbed without due
process. A possessor in bad faith could obtain a pos
sessory interdict because the interdict did not depend
on title. Itwould, however, establish whether the pos
sessor would be the defendant or the plaintiff in any
subsequent claim. See INTERDICTUM.
prohibitory interdict. An interdict by which a praetor
forbade something to be done.
restitutory interdict (ri-stich-d-tor-ee or res-ti-t[y]
oo-td-ree). An interdict by which a praetor directed
something to be restored to someone who had been
dispossessed of it.
2. Civil law. A person who bas been interdicted; a
natural person who, because of an infirmity, cannot
make reasoned decisions about personal care or
property or communicate those decisions; a person
deprived ofthe capacity to make juridical acts. La. Civ.
Code arts. 389, 390, 394.
limited interdict. A person whose right to care for
himself or herself is restricted by a court decision
because of mental incapacity; a person subject to
limited interdiction. La. Civ. Code art. 390. [Cases:
Mental Health (;:;;>36.]
interdict (in-t<lr-dikt), vb. (ISc) 1. To forbid or restrain.
2. To intercept and seize (contraband, etc.). 3. Civil law.
To remove a person's right to handle personal affairs
because of mental incapacity. [Cases: Mental Health
(;:;;>36.]
interdiction. 1. The act offorbidding or restraining.
interdiction ofcommercial intercourse. Int'llaw. A
governmental prohibition ofcommercial trade.
2.1he interception and seizure ofsomething, esp. con
traband. 3. Civil law. The act of depriving a person of
the right to handle his or her own affairs because of
mental incapacity. See EX CAPITE INTERDICTIONIS. Cf.
GUARDIANSHIP (1); CURATORSHIP; CURATOR (2).
"Interdiction, now scarcely known in practice, was a means
formerly adopted for the protection of those who were
weak, faCile, and easily imposed upon, and also for the
protection of those who, being reckless and profuse, were
unable to manage their estate with care and prudence. Interdiction was either judicial or voluntary: and in which
ever of these modes the interdiction was effected and
imposed, any disposition of heritage thereafter by the
interdicted, without the consent of his interdictors, was
liable to reduction on the ground of interdiction, except
where the conveyances were onerous and rational." Joh n
Trayner, Trayner's Latin Maxims 193 (4th ed. 1894).
complete interdiction. See full interdiction.
full interdiction. The complete removal of one's right
to care for oneself and one's affairs or estate because
of mental incapacity. La. Civ. Code art. 389. -Also
termed complete interdiction. [Cases: Mental Health
(;:;;>101.]
limited interdiction. See partial interdiction.
partial interdiction. The partial removal ofone's right
to care for oneself and one's affairs or estate because
ofmental incapacity. -Also termed limited interdic
tion. [Cases: Mental Health (;:;;> 101.]
interdictory (in-t<lr-dik-t<lr-ee), adj. 1. Of or relating to
an interdiction. 2. Having the power to interdict.
Also termed interdictive.
interdictum (in-tdr-dik-tdm), tI. [Latin] Roman law.
A summary order to secure the applicant's rights by
preventing something from being done (prohibitory
interdict) or requiring property to be produced (exhibi
tory interdict) or restored (restitutory interdict) . A
party might apply for an interdictum when some wrong
had been done, or was likelv to be done, and it was
necessary either to redress 0; to prevent the wrong at
once, without waiting for the ordinary legal processes;
often it was a preliminary to an ordinary action (e.g.,
by settling which party was entitled to be defendant in
the action). PI. interdicta.
interdictum quod vi aut clam (in-t<lr-dik-tam kwod VI
awt klam). [Latin "interdict because of force or stealth"]
Roman law. An interdict issued against a person who
forcibly (vi) or secretly (clam) altered or occupied the
claimant's property . The interdict required the defen
dant to restore the property to its previous condition.
Cf. actio vi bonorum raptorum under ACTIO.
intereosdem (in-tdr ee-ahs-d<lm). [Latin] Hist. Between
the same persons.
interesse (in-tdf-es-ee). [Latin] 1. Monetary interest. 2.
A legal interest in property.
interessee (in-tJ-re-see). See real party in interest under
PARTY (2).
interesse termini (in-tdr-es-ee tdr-md-nI). [Latin
"interest of term or end"] Archaic. A lessee's right of
entry onto the leased property; esp., a lessee's interest in
real property before taking possession . An interesse
termini is not an estate; it is an interest for the term. It
gives the lessee a claim against any person who prevents
the lessee from entering or accepting delivery of the
property. [Cases: Landlord and Tenant 20,70.1
"[The interesse termini's] essential qualities, as a mere
interest, in contradistinction to a term in possession, seems
to arise from a want of possession. It is a right or interest
only, and not an estate, and it has the properties of a right.
It may be extinguished by a release to the lessor, and it
885 interest
may be assigned or granted away, but it cannot, techni
cally considered, be surrendered; for there is no reversion
before entry, in which the interest may drown. Nor will a
release from the lessor operate by way of enlargement,
for the lessee has no estate before entry." 4 James Kent,
Commentaries on American Law *97 (George Comstock
ed., 11th ed. 1866).
"There was a troublesome doctrine of the common law
which established, in the case of a lease not operating
under the Statute of Uses, that the lessee acquired no
estate in the land until he actually entered into possession.
Until that time he was said to have a mere right to take
possession, and this right was called an interesse termini.
This requisite of entry to perfect a lease has, however,
been swept away by the Law of Property Act, 1925, and all
terms of years absol ute, whether created before or after
the commencement of the Act, can take effect from the
date fixed for the commencement of the term without
actual entry." G.c' Cheshire, Modern Law of Real Property
128-29 (3d ed. 1933).
interest, n. (l5c) 1. The object ofany human desire; esp.,
advantage or profit of a financial nature <conflict of
interest>. 2. A legal share in something; all or part ofa
legal or equitable claim to or right in property <right,
title, and interest>. _ Collectively, the word includes any
aggregation ofrights, privileges, powers, and immuni
ties; distributively, it refers to |
Collectively, the word includes any
aggregation ofrights, privileges, powers, and immuni
ties; distributively, it refers to anyone right, privilege,
power, or immunity.
absolute interest. (I8c) An interest that is not subject
to any condition.
beneficial interest. (18c) A right or expectancy in some
thing (such as a trust or an estate), as opposed to legal
title to that thing. -For example, a person with a
beneficial interest in a trust receives income from the
trust but does not hold legal title to the trust property.
[Cases: Descent and Distribution (;:=>73; Trusts (;:=>
140(1).]
carried interest. 1. The share of any profits produced
by a partnership's investment, paid to the general
partner as compensation tor managing the invest
ment. _ The general partner often contributes little
or no capital to acquire the investment but gains an
interest in it by providing time and skill. The general
partner's interest in the property is "carried" with the
property until it is liquidated. 2. Oil & gas. In an oil
and-gas lease, a fractional interest that is free of
some or all costs of exploring, drilling, and com
pleting the well. -The owner of a carried lease
may earn royalties on production but does not
have a working interest, at least until all costs
are recouped by the working-interest owner or
owners, and often until some multiple of those
costs are paid.
concurrent interest. See concurrent estate under EST A TE
(1).
contingent interest. (I8c) An interest that the holder
may enjoy only upon the occurrence of a condition
precedent.
controlling interest. Sufficient ownership of stock in a
company to control policy and management; esp., a
greater-than-50% ownership interest in an enterprise.
[Cases: Corporations (;:=> 180.J defeasible interest. An interest that the holder may
enjoy until the occurrence of a condition. [Cases:
Wills (,'-:::>602.]
direct interest. (I7c) A certain, absolute interest <the
juror was disqualified because she had a direct interest
in the lawsuit>.
entailed interest. An interest that devolves through
lineal descendants only as a result of a fee tail. [Cases:
Estates in Property <>-=' 12.J
entire interest. (l7c) A whole interest or right, without
diminution. See FEE SIMPLE.
equitable interest. (I7c) An interest held by virtue of
an equitable title or claimed on equitable grounds,
such as the interest held by a trust beneficiary. [Cases:
Trusts (;:=> 139.]
executory interest. See EXECGTORY INTEREST.
expectation interest. (1836) The interest of a nonb
reaching party in being put in the position that would
have resulted ifthe contract had been performed. See
expectation damages under DAMAGES; BENEFIT-OF
THE-BARGAIN RULE. [Cases: Damages C=:?1l7; Fraud
(;:::>59(2).]
financial interest. An interest involving money or its
equivalent; esp., an interest in the nature ofan invest
ment. Also termed pecuniary interest.
fractional interest. See undivided interest.
future interest. (17c) A property interest in which the
privilege ofpossession or ofother enjoyment is future
and not present. _ A future interest can exist in either
the grantor (as with a reversion) or the grantee (as
with a remainder or executory interest). Today, most
future interests are equitable interests in stocks and
debt securities, with power ofsale in a trustee. -Also
termedfuture estate; expectant estate; estate in expec
tancy. Cf. present interest under INTEREST (2). [Cases:
Estates in Property (;:=> 1.]
"[TIhe interest is an existing interest from the time of its
creation, and is looked upon as a part of the total owner
ship of the land or other thing [thatl is its subject matter. In
that sense, future interest is somewhat misleading, and it is
applied only to indicate that the possession or enjoyment
of the subject matter is to take place in the future." Lewis
M. Simes & Allan F. Smith, The Law ofFuture Interests 1,
at 2-3 (2d ed 1956).
"To own a future interest now means not only to be entitled
now to judicial protection of one's possible future posses
sion, but also (in most cases) to be able to make transfers
now of that right of possible future possession." Thomas
F. Bergin & Paul G. Haskell, Preface to Estates in Land and
Future Interests 56 (2d ed. 1984). 'When 0 transfers today
'to A for five years,' we can say either that 0 has a future
interest oythat he has a 'present' estate subject to a term
for years in A. Similarly, when 0 transfers today his entire
estate in fee simple absolute by a conveyance 'to A for
five years, then to B and his heirs,' we can say eitherthat
B has a future interest oythat he has a 'present' estate
subject to a term for years in A. Unhappily, the fact that
we have two locutions available to us can be a source of
confusion ...." Id. at 42.
inalienable interest. (1848) An interest that cannot be
sold or traded.
inchoate interest. (1800) A property interest that
has not yet vested. [Cases: Dower and Curtesy (;:::;>
29-53.]
insurable interest. (18c) A legal interest in another
person's life or health or in the protection ofproperty
from injury, loss, destruction, or pecuniary damage .
To take out an insurance policy, the purchaser or the
potential insured's beneficiary must have an insur
able interest. Ifa policy does not have an insurable
interest as its basis, it will usu. be considered a form of
wagering and thus be held unenforceable. See wager
policy under INSURANCE POLICY. [Cases: Insurance
(;:::;> 1779-1795.]
interest in the use and enjoyment o/land. The pleasure,
comfort, and advantage that a person may derive
from the occupancy ofland. The term includes not
only the interests that a person may have for residen
tial, agricultural, commercial, industrial, and other
purposes, but also interests in having the present
use value of the land unimpaired by changes in its
physical condition. [Cases: Nuisance (;:::;> 1.]
joint interest. An interest that is acquired at the same
time and by the same title as another person's. See
joint tenancy under TENANCY. [Cases: Joint Tenancy
(;:::;> 1.]
junior interest. An interest that is subordinate to a
senior interest.
legal interest. (17c) 1. An interest that has its origin
in the principles, standards, and rules developed by
courts oflaw as opposed to courts ofchancery. 2. An
interest recognized by law, such as legal title.
legally protected interest. A property interest that the
law will protect against impairment or destruction,
whether in law or in equity.
liberty interest. (1960) An interest protected by the
due-process clauses ofstate and federal constitutions.
See FUNDAMENTAL RIGHT (2). [Cases: Constitutional
Law (;:::;>3873.]
multiple interest. A property interest that is good
against an indefinitely large number of people.
pecuniary interest. See financial interest.
possessory interest. See POSSESSORY INTEREST.
present interest. (17c) 1. A property interest in which
the privilege ofpossession or enjoyment is present and
not merely future; an interest entitling the holder to
immediate possession. -Also termed present estate.
Cf. FUTURE INTEREST. [Cases: Estates in Property (;:::;>
1.] 2. A trust interest in which the beneficiary has
the immediate beneficial enjoyment of the trust's
proceeds. 3. A trust interest in which the trustee
has the immediate right to control and manage the
property in trust.
proprietary interest. (17c) A property right; specif., the
interest held by a property owner together with all
appurtenant rights, such as a stockholder's right to
vote the shares. [Cases: Corporations (;:::;>635.] reliance interest. (1936) The interest of a nonbreach
ing party in being put in the position that would have
resulted ifthe contract had not been made, including
out-of-pocket costs. [Cases: Damages (;:::;> 117.]
restitution interest. A nonbreaching party's interest
in preventing the breaching party from retaining a
benefit received under the contract and thus being
unjustly enriched. The benefit may have been
received from the nonbreaching party or from a third
party. [Cases: Implied and Constructive Contracts
(;:::;>4.]
reversionary interest. A future interest left in the trans
feror or successor in interest. See REVERSION. [Cases:
Reversions (;:::;> 1.]
senior interest. An interest that takes precedence over
others; esp., a debt security or preferred share that has
a higher claim on a corporation's assets and earnings
than that ofa junior obligation or common share.
terminable interest. (1883) An interest that may be ter
minated upon the lapse of time or upon the occur
rence ofsome condition.
undivided interest. (18c) An interest held under the
same title by two or more persons, whether their
rights are equal or unequal in value or quantity.
Also termed undivided right; undivided title;frac
tional interest. See joint tenancy and tenancy in
common under TENANCY. [Cases: Joint Tenancy (;:::;>
1; Tenancy in Common (;:::;> 1.]
vested interest. (18c) An interest for which the right to
its enjoyment, either present or future, is not subject
to the happening ofa condition precedent.
working interest. See WORKING INTEREST.
3. The compensation fixed by agreement or allowed
by law for the use or detention of money, or for the
loss of money by one who is entitled to its use; esp.,
the amount owed to a lender in return for the use of
borrowed money. -Also termed finance charge. See
USURY. [Cases: Interest (;:::;> 1,8.]
accrued interest. (18c) Interest that is earned but not
yet paid, such as interest that accrues on real estate
and that will be paid when the property is sold if, in
the meantime, the rental income does not cover the
mortgage payments.
add-on interest. (1952) Interest that is computed on
the original face amount of a loan and that remains
the same even as the principal declines . A $10,000
loan with add-on interest at 8% payable over three
years would require equal annual interest payments
of $800 for three years, regardless ofthe unpaid prin
cipal amount. With add-on interest, the effective rate
of interest is typically about twice the stated add-on
interest rate. In the example just cited, then, the
effective rate ofinterest would be about 16%. -Also
termed block interest. See add-on loan under LOAN.
Boston interest. Interest computed by using a 30-day
month rather than the exact number of days in the
month. -Also termed New York interest.
887 interest policy
compound interest. (17c) Interest paid on both the i interest is paid. -Also termed straight-line interest.
principal and the previously accumulated interest.
Cf. simple interest. [Cases: Interest C~)60; Usurv ~
49.] ,
conventional interest. (1878) Interest at a rate agreed
to by the parties themselves, as distinguished from
that prescribed by law. Cf. interest as damages. [Cases:
Interest G-~4, 32.]
discount interest. The interest that accrues on a dis
counted investment instrument (such as a govern
ment bond) as it matures. The investor receives the
interest when the instrument is redeemed. [Cases:
Gnited States ~';"91.]
gross interest. (1884) A borrower's interest payment
that includes administrative, service, and insurance
charges.
imputed interest. (1968) Interest income that the IRS
attributes to a lender regardless of whether the lender
actually receives interest from the borrower . This
is common esp. in loans between family members.
[Cases: Internal Revenue ~3132.20.]
interest as damages. (1841) Interest allowed by law in
the absence of a promise to pay it, as compensation for
a delay in paying a fixed sum or a delay in assessing
and paying damages. Cf. conventional interest.
lawful interest. 1. A rate ofinterest that is less than or
equal to the statutory maximum. [Cases: Usury
42; Wills Cr~602.] 2. See legal interest.
legal interest. 1. Interest at a rate usu. prescribed by
statute. Courts often order monetary judgments
to accumulate legal interest until paid. Cf. legal rate
under INTEREST RATE. [Cases: Interest ~31,39(3).]
2. See lawful interest.
illegal interest. See USURY.
moratory interest. See prejudgment interest.
New York interest. See Boston interest.
prejudgment interest. Statutorily prescribed interest
accrued either from the date of the loss or from the
date when the complaint was filed up to the date the
final judgment is entered. Prejudgment interest is
usu. calculated only for liquidated sums. Depending
on the statute, it mayor may not be an element of
damages. Also termed moratory interest. [Cases:
Interest ~39(2.5).] .
prepaid interest. (1887) Interest paid before it is earned.
[Cases: Usury~44.]
qualified residence interest. (1993) Tax. Interest paid
on debt that is secured by one's home and that was
incurred to purchase, build, improve, or refinance
the home . This type of interest is deductible from
adjusted gross income. [Cases: Internal Revenue ~
3282.]
simple interest. (l7c) Interest paid on the principal only
and not on accumulated interest . Interest accrues
only on the |
simple interest. (l7c) Interest paid on the principal only
and not on accumulated interest . Interest accrues
only on the principal balance regardless ofhow often Cf. compound interest. [Cases: Interest ~60.]
straight-line interest. See simple Interest.
unearned interest. (1880) Interest received by a finan
cial institution before it is earned.
unlawful interest. See USURY.
interest-analysis technique. (1964) Conflict oflaws. A
method ofresolVing choice-of-law questions by review
ing a state's laws and the state's interests in enforcing
those laws to determine whether that state's laws or those
of another state should apply. Also termedgovernmen
tal-Interest-analysis technique. [Cases: Action 17.]
"Professor Brainerd Currie gets the major credit for develop
ing the interest analYSis, or governmental interest analYSiS,
technique. Interest analysis requires an examination into
competing laws to determine their underlying poliCies and
the strength of the relative interests the competing sover
eigns have in the application of their respective laws in the
parflcular situation. The facts will vary and the strength of
the relevant policies will wax and wane accordingly." David
D. Siegel, Conflicts in a Nutshell 237 (2d ed. 1994).
interest arbitration. See ARBITRATION.
interest as damages. See INTEREST (3).
interest-based quorum. See QUORUM.
interest bond. See BOND (3).
interest coupon. See COUPON.
interest-coverage ratio. The ratio between a company's
pretax earnings and the annual interest payable on
bonds and loans.
interested party. See PARTY (2).
interested person. See PERSON (1).
interested shareholder. See SHAREHOLDER.
interested stockholder. See interested shareholder under
SHAREHOLDER.
interested witness. See WITNESS.
interest-equalization tax. See TAX.
interest factor. Insurance. In life-insurance ratemaking, an
estimate ofthe interest or rate ofreturn that the insurer
will earn on premium payments over the life of a pol icy.
1he interest factor is one element that a life insurer uses
to calculate premium rates. See PREMIUM RATE; gross
premium (1) under PREMIUM (1). Cf. MORTALITY FACTOR;
RISK FACTOR. [Cases: Insurance ~1542(1).]
interest-free loan. See LOAN.
Interest on Lawyers' Trust Accounts. A program that
allows a lawyer or law firm to deposit a client's retained
funds into an interest-bearing account that desig
nates the interest payments to charitable, law-related
purposes, such as providing legal aid to the poor.
Almost all states have either a voluntary or mandatory
IOLTA program. Abbr. IOLTA. [Cases: Attorney and
Client ~120.]
interest-only loan. See LOAN.
interest-only mortgage. See MORTGAGE.
interest policy. See INSURANCE POLICY.
interest rate 888
interest rate. (1886) The percentage that a borrower of
money must pay to the lender in return for the use of
the money, usu. expressed as a percentage of the prin
cipal payable for a one-year period. -Often shortened
to rate. -Also termed rate ofinterest. [Cases: Interest
C=>27-38.]
annual percentage rate. (1941) The actual cost ofbor
rowing money, expressed in the form of an annual
ized interest rate. -Abbr. APR.
bank rate. The rate of interest at which the Federal
Reserve lends funds to member banks.
contract rate. (1856) The interest rate printed on the
face ofa bond certificate.
coupon rate. 1. The specific interest rate for a coupon
bond. -Also termed coupon interest rate. See coupon
bond under BOND (3). 2. See nominal rate.
discount rate. (1913) 1. The interest rate at which a
member bank may borrow money from the Federal
Reserve. This rate controls the supply of money
available to banks for lending. Cf. rediscount rate.
2. The percentage of a commercial paper's face value
paid by an issuer who sells the instrument to a finan
cial institution. 3. The interest rate used in calculating
present value.
effective rate. (1912) The actual annual interest rate,
which incorporates compounding when calculating
interest, rather than the stated rate or coupon rate.
face rate. See nominal rate.
floating rate. (1921) A varying interest rate that is tied
to a financial index such as the prime rate.
illegal rate. (1867) An interest rate higher than the rate
allowed by law. See USURY. [Cases: Usury C=>42.]
legal rate. (1857) 1. The interest rate imposed as a
matter of law when none is provided by contract.
[Cases: Interest C=>31.] 2. The maximum interest
rate, set by statute, that may be charged on a loan. See
legal interest under INTEREST (3). Cf. USURY. [Cases:
Usury C=>42.]
lock rate. (2000) A mortgage-application interest rate
that is established and guaranteed for a specified
period. -Also termed locked-in rate.
nominal rate. (1872) The interest rate stated in a loan
agreement or on a bond, with no adjustment made for
inflation. -Also termed coupon rate;face rate; stated
rate; stated interest rate.
prime rate. (1952) The interest rate that a commercial
bank holds out as its lowest rate for a short-term loan
to its most creditworthy borrowers, usu.large corpo
rations. This rate, which can vary slightly from bank
to bank, often dictates other interest rates for various
personal and commercial loans. -Often shortened
to prime. -Also termed prime lending rate.
real rate. (1895) An interest rate that has been adjusted
for inflation over time.
rediscount rate. The interest rate at which a member
bank may borrow from the Federal Reserve on a loan secured by commercial paper that has already been
resold by the bank.
stated rate. See nominal rate.
variable rate. (1970) An interest rate that varies at
preset intervals in relation to the current market rate
(usu. the prime rate).
interest-rate swap. An agreement to exchange interest
receipts or interest-payment obligations, usu. to adjust
one's risk exposure, to speculate on interest-rate
changes, or to convert an instrument or obligation from
a fixed to a floating rate -or from a floating to a fixed
rate. The parties to such an agreement are termed
"counterparties."
generic swap. See plain-vanilla swap.
plain-vanilla swap. A typical interest-rate swap that
involves one counterparty's paying a fixed interest
rate while the other assumes a floating interest rate
based on the amount ofthe principal of the underly
ing debt. The underlying debt, called the "notional"
amount of the swap, does not change hands -only
the interest payments are exchanged. -Also termed
generic swap.
interest unity. See unity ofinterest under UNITY.
interest warrant. See WARRANT (2).
interferant. 1. Something that interferes with the proper
function ofa chemical analysis; specif., a chemical con
taminant that renders the results ofa blood, breath, or
urine test unreliable. 2. Patents. A party to an inter
ference proceeding in the U.S. Patent and Trademark
Office. This term declined in use after the 1960s;
today the PTO and courts use the term "contestant."
Also termed (in sense 2) contestant. See CONTESTANT
(3). [Cases: Patents C=> 106(1).)
interference, n. (18c) 1. The act ofmeddling in another's
affairs. 2. An obstruction or hindrance. 3. Patents. An
administrative proceeding in the U.S. Patent and Trade
mark Office to determine who is entitled to the patent
when two or more applicants claim the same inven
tion, or when an application interferes with an existing
patent. This proceeding occurs when the same inven
tion is claimed (1) in two pending applications, or (2)
in one pending application and a patent issued within
a year of the pending application's filing date. -Also
termed priority contest. [Cases: Patents C=> 106.) 4.
Trademarks. An administrative proceeding in the U.S.
Patent and Trademark Office to determine whether a
mark one party wants to register will cause confusion
among consumers with another party's mark. An
administrative hearing may be held to determine whose
mark prevails, but applicants usu. withdraw their appli
cations and devise new marks instead. [Cases: Trade
marks C=> 1289.) -interfere, vb.
interference-estoppel rejection. See REJECTION.
interference with a business relationship. See TORTIOUS
INTERFERENCE WITH PROSPECTIVE ADVANTAGE.
889
interference with a contractual relationship. See
TORTIOUS INTERFERENCE WITH CONTRACTUAL RELA
TIONS.
interference with contract. See TORTIOUS INTERFER
ENCE WITH CONTRACTUAL RELATIONS.
intergenerationallove. 1. Affection between adults and
children. -This sense usu. refers to interfamilial affec
tion, as between grandparents and grandchildren, and
does not include sexual feelings. 2. Romance or sexual
contact between a child below the age of consent and
an adult. -Pedophiles use the term as a euphemism to
assert that sexual contact between adults and children
is consensual.
intergovernmental immunity. See IMMUNITY (1).
intergovernmental-immunity doctrine. (1939) Con
stitutionallaw. The principle that both the federal gov
ernment and the states are independent sovereigns,
and that neither sovereign may intrude on the other in
certain political spheres. Cf. PREEMPTION (5). [Cases:
States C=> 18.93.)
Intergovernmental Maritime Consultative Organiza
tion. A unit ofthe United Nations charged with setting
international standards for vessel safety and person
nel training for shipping on the open seas. Abbr.
IMCO.
interim, adj. (16c) Done, made, or occurring for an inter
vening time; temporary or provisional <an interim
director>.
interim bond. See BOND (2).
interim committitur (in-t~-rim k~-mit-~-t~r). [Latin "in
the meantime, let him be committed") A court order
directing that a defendant be incarcerated pending
further action.
interim curator. See CURATOR (2).
interim dominus (in-t~r-im dom-~-n~s). [Law Latin]
Hist. Proprietor in the meantime. -The feminine form
is domina.
"A widow is interim domina of terce lands after her service,
and in virtue thereof may either possess them herself, or let
them out to tenants." John Trayner, Travner's Latin Maxims
286 (4th ed. 1894).
interim financing. See FINANCING.
interim measure of protection. Int'llaw. An interna
tional tribunal's order to prevent a litigant from preju
dicing the final outcome of a lawsuit by arbitrary action
before a judgment has been reached. _ This measure
is comparable to a temporary injunction in national
law.
interim-occupancy agreement. (1962) A contract gov
erning an arrangement (called a leaseback) whereby the
seller rents back property from the buyer. See LEASE
BACK.
interim order. See ORDER (2).
interim receipt. See RECEIPT.
interim relief. See RELIEF. interloper
interim statement. Accounting. A periodic financial
report issued during the fiscal year (usu. quarterly) that
indicates the company's current performance. -The
SEC requires the company to file such a statement if it
is distributed to the company's shareholders. -Also
termed interim report.
interim trustee. See TRUSTEE (2).
interim zoning. See ZONING.
interinsurance. See reciprocal insurance under INSUR
ANCE.
interinsurance exchange. See RECIPROCAL EXCHANGE.
Interior Department. See DEPARTMENT OF THE
INTERIOR.
interlineation (in-tdr-lin-ee-ay-sh~n), n. (I5c) 1. The act
of writing something between the lines of an earlier
writing. 2. Something written between the lines ofan
earlier writing. Cf. INTERPOLATION (1). interline,
vb.
interlining. A carrier's practice of transferring a
shipment to another carrier to reach a destination not
served by the transferring carrier.
interlocking confessions. See CONFESSION.
interlocking director. See DIRECTOR.
interlocutor (in-t~r-Iok-p-tdr). Scots law. A nonfinal
judicial order disposing of any part ofa case.
interlocutory (in-t~r-Iok-y~-tor-ee), adj. (I5c) (Of an
order, judgment, appeal, etc.) interim or temporary;
not constituting a final resolution of the whole con
troversy. Also termed medial. [Cases: Appeal and
Error <:;=66-84; Criminal Law C=> 1023(3); Federal
Courts <>572-583.]
interlocutory appeal. See APPEAL.
Interlocutory Appeals Act. A federal statute, enacted in
1958, that grants discretion to a U.S. court of appeals to
review an interlocutory order in a civil case if the trial
judge states in writing that the order involves a con
trolling question oflaw on which there is substantial
ground for difference ofopinion, and that an immedi
ate appeal from the order may materially advance the
termination of the litigation. 28 USCA 1292(b). Cf.
FINALITY DOCTRINE; FINAL-JUDGMENT RULE. [Cases:
Federal Courts C:::>660.L)
interlocutory application. See APPLICATION.
interlocutory costs. See COSTS (3).
|
L)
interlocutory application. See APPLICATION.
interlocutory costs. See COSTS (3).
interlocutory decision. See interlocutory order under
ORDER (2).
interlocutory decree. See interlocutory judgment under
JUDGMENT.
interlocutory injunction. See preliminary injunction
under INJUNCTION.
interlocutory judgment. See JUDGMENT.
interlocutory order. See ORDER (2).
interloper, n. (16c) 1. One who interferes without justifi
cation. 2. One who trades illegally. -interlope, vb.
890 intermeddler
intermeddler. See OFFICIOUS INTERMEDDLER.
intermediary (in-tar-mee-dee-er-ee), n. (18c) A mediator
or go-between; a third-party negotiator. Cf. FINDER
(1). -intermediate (in-tar-mee-dee-ayt), vb.
informed intermediary. Products liability. A person
who is in the chain ofdistribution from the manu
facturer to the consumer and who knows the risks of
the product. -Also termed learned intermediary.
[Cases: Products Liability (;:::~j 136.)
intermediary bank. See BANK.
intermediate account. See ACCOUNT.
intermediate casing. See CASING.
intermediate court. See COURT.
intermediate order. See interlocutory order under ORDER
(2).
intermediate scrutiny. (1974) Constitutional law. A
standard lying between the extremes of rational-basis
review and strict scrutiny. -Under the standard, if a
statute contains a quasi-suspect classification (such as
gender or legitimacy), the classification must be sub
stantially related to the achievement of an important
governmental objective. Also termed middle-level
scrutiny; mid-level scrutiny; heightened scrutiny. Cf.
STRICT SCRUTINY; RATIONAL-BASIS TEST. [Cases: Con
stitutional Law (;='3061.J
intermediation. (17c) 1. Any process involving an inter
mediary. 2. The placing offunds with a financial inter
mediary that reinvests the funds, such as a bank that
lends the funds to others or a mutual fund that invests
the funds in stocks, bonds, or other instruments.
in terminis (in tar-ma-nis). [Law Latin] Hist. In express
terms; expressly.
in terminis terminantibus (in tar-m<3-nis tar-ma-nan
ti-b<3s), adv. & adj. [Law Latin] Hist. In terms of deter
mination; in express or determinate terms.
intermittent easement. See EASEMENT.
intermittent sentence. See SENTENCE.
intermixture ofgoods. See CONFUSION OF GOODS.
intermodal transport. See MULTIMODAL SHIPPING.
intermunicipallaw. See private international law under
INTERNATIONAL LAW.
intern, n. (1889) An advanced student or recent graduate
who is apprenticing to gain practical experience before
entering a specific profession. See CLERK (4). intern
ship, n.
intern, vb. (1866) 1. To segregate and confine a person
or group, esp. those suspected ofhostile sympathies in
time of war. See INTERNMENT. [Cases: War and National
Emergency (;:::-j51.] 2. To work in an internship.
internal act. See ACT.
internal-affairs doctrine. Conflict oflaws. The rule that
in disputes involving a corporation and its relationships
with its shareholders, directors, officers, or agents, the
law to be applied is the law ofthe state of incorporation. This doctrine applies in the majority ofstates. In a few
states, notably California and New York, foreign corpo
rations must meet state-law requirements in specified
circumstances. [Cases: Corporations C='640.)
"Broadly speaking, 'corporate internal affairs' refers to the
powers and obligations of a corporation's manager vis-a
vis the corporation and its shareholders, and the rights
and duties of the corporation's shareholders vis-a-vis the
corporation, its management and the other sharehold
ers. Put differently, corporate internal affairs pretty much
encompass the subject matter of those state laws typically
referred to as corporate law. In dealing with a corpora
tion's internal affairs, courts ... have looked to the law of
the state of incorporation for the governing rule. Courts
often refer to this choice of law prinCiple as the 'internal
affairs doctrine.''' Franklin A. Gevurtz, Corporation Law
36 (2000).
internal affairs of a foreign corporation. Conflict of
laws. Matters that involve only the inner workings of
a corporation, such as dividend declarations and the
selection ofofficers. [Cases: Corporations C='640.]
"The old statement that a court will not hear cases involv
ing the internal affairs of a foreign corporation has been
practically dropped from the law today, and the result
when appropriate is achieved under the forum non conve
niens rule. Modern courts recognize their jurisdiction to
entertain such suits, and insist only upon a discretionary
power to refuse to exercise the existent jurisdiction when
the facts make it both feasible and more desirable for the
case to be heard by a court of the state of incorporation."
Robert A. Leflar, American Conflicts Law 255. at 512-13
(3d ed. 1977).
internal attack. A beneficiary's questioning ofthe pro
priety of a trust's continuance, the purpose being to
terminate the trust and receive from the trustee the
interests held for the beneficiary's benefit.
internal audit. See AUDIT.
internal commerce. See intrastate commerce under
COMMERCE.
internal financing. See FINANCING.
internal law. See LAW.
internal litigation-hold letter. See LITIGATION-HOLD
LETTER.
internally displaced person. See displaced person under
PERSON (1).
internal rate of return. See RATE OF RET1:RN.
internal revenue. Governmental revenue derived from
domestic taxes rather than from customs or import
duties. -Also termed (outside the United States)
inland revenue.
Internal Revenue Code. Title 26 of the u.s. Code, con
taining all current federal tax laws. Abbr. IRe.
Also termed tax law.
Internal Revenue Service. A unit in the U.S. Department
of the Treasury responsible for enforCing and admin
istering the internal-revenue laws and other tax laws
except those relating to alcohol, tobacco, firearms, and
explosives. -Abbr. IRS. [Cases: Internal Revenue (;=
3003,4440-4443.)
internal security. The field oflaw dealing with measures
taken to protect a country from subversive activities.
891
internal-security act. (1950) A statute illegalizing and
controlling subversive activities of organizations whose
purpose is believed to be to overthrow or disrupt the
government. In the United States, many provisions
in such statutes have been declared unconstitutional.
One such law was repealed in 1993. See 50 USCA 781.
[Cases: Treason C~l.l
internal sovereignty. See SOVEREIGNTY (3).
internal waters. Any natural or artificial body or stream
ofwater within the territorial limits ofa country, such
as a bay, gulf, river mouth, creek, harbor, port, lake, or
canal. -Also termed inland waters.
"Waters on the landward side of the baseline of the territo
rial sea form part of the internal waters of a State." Geneva
Convention on the Territorial Sea and the Contiguous Zone,
Apr. 29, 1958, art. 5, , 1.
international administrative law. See ADMINISTRATIVE
LAW.
international agreement. (1871) A treaty or other
contract between different countries. such as GATT
or NAFTA. See GENERAL AGREEMENT ON TARIFFS AND
TRADE; NORTH AMERICAN FREE TRADE AGREEMENT.
[Cases: Treaties ~1-14.1
"Though international agreements are known by a variety
of titles, such as treaties, conventions, pacts, acts, declara
tions, protocols, accords, arrangements, concordats, and
modi vivendi, none of these terms has an absolutely fixed
meaning. The more formal political agreements, however,
are usually called treaties or conventions." Oscar Svarlien,
An Introduction to the Law of Nations 261 (1955).
international application. See PATENT APPLICATION.
international application designating the United
States. See PATENT APPLICATION.
international application originating in the United
States. See PATENT APPLICATION.
International Association. See L'ASSOCIATION LIT
TERAIRE ET ARTISTIQUE INTERNATIONALE.
International Bank for Reconstruction and Develop
ment. See WORLD BANK.
international bill of exchange. See foreign draft under
DRAFT.
International Bureau for the Protection of Intellec
tual Property. Copyright. A predecessor of the World
Intellectual Property Organization . The bureau was
created by combining the Paris Convention's Secre
tariat (the International Bureau for the Paris Conven
tion) with the Berne Copyright Convention of 1886. It
was supervised by the Swiss government until 1970,
when the bureau became part of WI PO. -Also termed
Bureaux Internationaux Reunis pour la Protection de
fa Propriete lntellectuelle; BIRPI.
International Centre for Settlement of Investment
Disputes. An autonomous division of the World Bank
conSisting ofan international three-member tribunal
that presides over arbitrations affecting the rights of
foreign investors . The center was created in 1966
under the Convention on the Settlement of Investment
Disputes Between States and Nationals of Other States. International Criminal Police Organization
It provides services for the conciliation and arbitra
tion of international investment and trade disputes.
Abbr. ICSID.
international commerce. See COMMERCE.
international control. Int'llaw. The supervision over
countries and their subdivisions for the purpose of
ensuring the conformity of their conduct with inter
national law.
"[Sjupervision is exercised increasingly not only over the
conduct of governmental and intergovernmental institu
tions, but also over the acts and omissions of individuals
to establish their conformity with requirements of public
international law. Yet even where supranational entities,
notably the European Communities, exercise international
control over the conduct of individuals and corporate
bodies, generally the supervision is destined to verify or
secure conformity of governmental measures with relevant
rules of law." Hugo J. Hahn, "International Controls," in 2
Encyclopedia ofPublic International Law 1079-80 (1995).
International Convention for the Protection of Per
formers, Producers of Phonograms and Broadcasting
Organizations. See ROME CONVENTION.
International Court ofJustice. The IS-member perma
nent tribunal that is the principal judicial organ ofthe
United Nations . The Court sits in the Hague, Nether
lands. It has jurisdiction to decide disputes submitted to
it by nations, and to render advisory opinions requested
by the United Nations and its specialized agencies. The
U.N. Security Council has the express power to enforce
the Court's judgments. Abbr. IC]. -Also termed
World Court. [Cases: International Law c.~1O.45.}
international crime. Int'llaw. A grave breach of inter
national law, such as genocide or a crime against
humanity, made a punishable offense by treaties or
applicable rules of customary international law . An
international crime occurs when three conditions are
satisfied: (1) the criminal norm must derive either from
a treaty concluded under international law or from cus
tomary international law, and must have direct binding
force on individuals without intermediate provisions of
municipal law. (2) the provision must be made for the
prosecution of acts penalized by international law in
accordance with the principle of universal jurisdiction,
so that the international character of the crime might
show in the mode of prosecution itself (e.g., before the
International Criminal Court), and (3) a treaty estab
lishing liability for the act must bind the great majority
of countries. -Also termed international offense.
International Criminal Court. A court established
by a treaty known as the Statute of the International
Criminal Court (effective 2002), with jurisdiction over
genocides, crimes against humanity, war crimes. and
aggression. It sits in The Hague, Netherlands. -Abbr.
ICC.
International Criminal Police Organization. An inter
national law-enforcement group founded in 1923 and
headquartered in Lyons, France . The organization
gathers and shares information on transnational crimi
nals for more than 180 member nations. -Also termed
Interpol.
892 international economic law
"Interpol is something of a legal curiosity: it engages in
intergovernmental activities and yet is not based on any
treaty, convention, or other similar instrument. Its founding
document is a constitution, drawn up by a group of police
officers, that has neither been submitted for diplomatic
signatures nor ratified by governments. Nevertheless,
the organization received de facto recognition from the
outset.... Interpol was formally granted the status of an
'intergovernmental agency' by the Economic and Social
Council of the United Nations in 1971, and this is regarded
as a form of de jure legitimization." Michael Fooner,
"Interpol," in 3 Encyclopedia of Crime and Justice 910, 910
(Sanford H. Kadish ed., 1983).
international economic law. (1939) International law
relating to investment, economic relations, economic
development, economic institutions, and regional
economic integration.
international enclave. See ENCLAVE.
international extradition. See EXTRADITION.
international filing date. See PCT FILING DATE.
international fund. See MUTUAL FUND.
internationalization. The act or process of bringing a
territory of one country under the protection or control
of another or of several countries.
"[Tlhe concept of internationalization is characterized by
three elements: the abolition or limitation |
of another or of several countries.
"[Tlhe concept of internationalization is characterized by
three elements: the abolition or limitation of the sover
eignty of a specific State; the serving of community inter
ests or at least the interests of a group of States; and the
establishment of an international institutional framework,
not necessarily involving an international organization."
Rudiger Wolfrum, "Internationalization," in 2 Encyclopedia
ofPublic International Law 1395 (1995).
international jurisdiction. See rURISDICTION.
international law. (ISc) The legal system governing the
relationships between nations; more modernly, the law
of international relations, embracing not only nations
but also such participants as international organiza
tions and individuals (such as those who invoke their
human rights or commit war crimes). -Also termed
public international law; law ofnations; law ofnature
and nations; jus gentium; jus gentium publicum; jus
inter gentes;foreign-relations law; interstate law; law
between states (the word state, in the latter two phrases,
being equivalent to nation or country). Cf TRANSNA
TIONAL LAW. [Cases: International Law <::=l-13.J
"[I]nternationallaw or the law of nations must be defined
as law applicable to states in their mutual relations and to
individuals in their relations with states. International law
may also, under this hypothesis, be applicable to certain
interrelationships of individuals themselves, where such
interrelationships involve matters of international concern."
Philip C. Jessup, A Modern Law ofNations 17 (1949).
customary international law. International law that
derives from the practice ofstates and is accepted by
them as legally binding. -This is one ofthe principal
sources or building blocks of the international legal
system.
private international law. International conflict of
laws. -Legal scholars frequently lament the name
"private international law" because it misleadingly
suggests a body of law somehow parallel to public
international law, when in fact it is merely a part of each legal system's private law. Also termed inter
national private law; jus gentium privatum; inter
municipal law; comity; extraterritorial recognition of
rights. See CONFLICT OF LAWS (2).
"[AJ word must be said about the name or title of the
subject. No name commands universal approval. The
expression 'Private International Law,' coined by Story in
1834 Uoseph Story, Commentaries on the Conflict of Laws
9 (1834)], and used on the Continent by Uean Jacques
Gaspard] Foelix in 1838, has been adopted by Westlake and
Foote and most French authors, The chief criticism directed
against its use is its tendency to confuse private interna
tional law with the law of nations or public international
law, as it is usually called. There are obvious differences
between the two, The latter primarily governs the relations
between sovereign states and it may perhaps be regarded
as the common law of mankind in an early state of devel
opment; the former is designed to regulate disputes of
a private nature, notwithstanding that one of the parties
may be a private state. There is, at any rate in theory, one
common system of public international law ... ; but ...
there are as many systems of private international law as
there are systems of municipal law:' G.c. Cheshire, Private
International Law 15 (6th ed. 1961).
International Law Commission. A body created in 1947
by the United Nations for the purpose of encouraging
the progressive development and codification ofinter
national law. _ The Commission is composed ofexperts
in international law. It has drafted many important
treaties that have become binding treaty law, includ
ing the Vienna Convention on the Law on Treaties.
international legal community. (1928) 1. The collec
tive body of countries whose mutuallega! relations
are based on sovereign equality. 2. More broadly, all
organized entities haVing the capacity to take part in
international legal relations. 3. An integrated organi
zation on which a group ofcountries, by international
treaty, confer part of their powers for amalgamated
enterprise. _ In this sense, the European Union is a
prime example.
international legislation. Int'llaw. 1. Law-making
among countries or intergovernmental organizations,
displaying structural and procedural characteristics
that are the same as national legislation. 2. 1he product
of any concerted effort to change international!aw by
statute. 3. The process of trying to change international
law by statute. 4. Loosely, the adoption by international
bodies of binding decisions, other than judicial and
arbitral decisions, concerning specific situations or
disputes.
International Monetary Fund. A U.N. specialized
agency established to stabilize international exchange
rates and promote balanced trade. -Abbr. IMF. [Cases:
International Law <::= lO, lO,]
international offense. See INTERNATIONAL CRIME.
international organization. (1907) Int'llaw. 1. An inter
governmental association of countries, established by
and operated according to multilateral treaty, whose
purpose is to pursue the common aims ofthose coun
tries. -Examples include the World Health Organiza
tion, the International Civil Aviation Organization, and
the Organization of Petroleum Exporting Countries.
893
[Cases: International Law 10.45.] 2. Loosely, an
intergovernmental or nongovernmental international
association.
International Parental Kidnapping Crime Act of 1993.
A federal statute that implemented the Hague Conven
tion on the Civil Aspects ofInternational Child Abduc
tion. 18 USCA 1204. See HAGUE CONVENTION ON THE
CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION.
[Cases: Kidnapping C=24.]
international person. Int'llaw. An entity having a legal
personality in international law; one who, being a
subject of international law, enjoys rights, duties, and
powers established in international law and has the
ability to act on the international plane.
international private law. 1. See private international
law under INTERNATIONAL LAW. 2. See CONFLICT OF
LAWS (2).
international regime. See REGIME.
International Regulations for Preventing Collisions at
Sea. See INTERNATIONAL RULES OF THE ROAD.
international relations. (1880) 1. World politics. 2.
Global political interaction, primarily among sover
eign nations. 3. The academic discipline devoted to
studying world politics, embracing international law,
international economics, and the history and art of
diplomacy.
international river. See RIVER.
International Rules of the Road. Maritime law. A set
of statutes deSigned to promote navigational safety .
The International Rules were formalized at the conven
tion on the International Regulations for Preventing
Collisions at Sea, 1972. 'The rules set requirements for
navigation lights, day shapes, steering and sailing rules,
sound signals in good and restricted viSibility condi
tion, and distress Signals, among other things. Congress
adopted the rules and enacted them in statutory form.
33 USCA 1602. -Also termed 72 COLREGS; Inter
national Regulations for Preventing Collisions at Sea,
1972.
International Schedule of Classes of Goods and
Services. Trademarks. A nearly worldwide classifica
tion system that enhances organization and retrieval
of registered marks within a category of goods or
services. -Abbr. ISCGS.
international seabed. The seabed and ocean floor, as
well as the subsoil, lying beyond the territorial limits
of nations. -Also termed international seabed area.
international terrorism. See TERRORISM.
International Trade Administration. A unit in the U.S.
Department of Commerce responsible for promoting
world trade and strengthening the international trade
and investment position ofthe United States . Created
in 1980, the agency operates through three offices: the
Office of the Assistant Secretary for Import Services,
the Office ofthe Assistant Secretary for Market Access
and Compliance, and the Office of the Assistant Secinterpel
retary for Trade Development. -Abbr. ITA. [Cases:
Customs Duties 54.]
International Trade Commission. See UNITED STATES
INTERNATIONAL TRADE COMMISSION.
International Trade Court. See UNITED STATES COURT
OF INTERNATIONAL TRADE.
international union. See UNION.
international will. See WILL.
inter naturalia feudi (in-t<lr nach-<l-ray-Iee-<l [fyoo
dI]). [Law Latin] Scots law. Among the things naturally
arising from a feu . Such items include payment of
duties and stipulated services to be performed for the
superior. Sometimes shortened to inter naturalia.
internecine (in-tdr-nee-sin or in-t<lr-nee-sIn or in-t<lr
nes-een), adj. (17c) 1. Deadly; characterized by mass
slaughter. 2. Mutually deadly; destructive of both
parties <an internecine civil war>. 3. Loosely, of or
relating to conflict within a group <internecine faculty
politics>.
Internet Corporation for Assigned Names and
Numbers. A nonprofit corporation established in 1998
to assign and manage the system of Internet domain
names and to allocate Internet-protocol (IP) address
space. -Abbr. ICANN. [Cases: Telecommunications
C=1330.]
Internet patent. See PATENT (3).
Internet payment. See CYBERPAYMENT.
Internet payment service. An enterprise that offers elec~
tronic transfers of money.
Internet-protocol address. The lO-digit identification
tag used by computers to locate specific websites.
Internet scrip. See SCRIP.
Internet service provider. A business or other organi
zation that offers Internet access, typically for a fee. -
Abbr. ISP. [Cases: Telecommunications (;::::; l320.J
internment (in-t;nn-m<lnt), n. The government-ordered
detention ofpeople suspected ofdisloyalty to the gov
ernment, such as the confinement of Japanese Ameri
cans during World War II. [Cases: War and National
EmergencyC=51.J- intern, vb.
internuncio (in-t<lr-n~n-shee-oh), n. [fro Latin irtternun
tius] 1. A messenger between two parties. 2. A broker
who serves as agent ofboth parties to a transaction.
Also termed internuncius. 3. A papal representative at
a foreign court, ranking below a nuncio. Cf. NUNCIO
(1); LEGATE (3). -internuncial, adj.
inter pares (in-t<lr pair-eez), adv. & adj. [Latin] Between
peers; between people in an equal position.
inter partes (in-t<lr pahr-teez), adv. [Latin "between
parties"] (1816) Between two or more parties; with two
or more parties in a transaction. inter partes, adj.
inter partes reexamination. See REEXAMINATION.
interpel. See INTERPELLATE.
894 interpellate
interpellate (in-tar-pel-ayt), vb. 1. (Of a judge) to inter
rupt, with a question, a lawyer's argument. 2. (Of a leg
islator) to interrupt a legislature's calendar by bringing
into question a ministerial policy, esp. in the legislature
of France, Italy, or Germany. -Also termed (in Scots
law) interpel (in-tar-pel). -interpellation, n.
interpellatio (in-tdr-pd-Iay-shee-oh), n. [Latin "a
demand, interruption"] Roman law. 1. A demand for
payment of a debt or for desistance from a course of
action. 2. 'Ibe interruption of a process, e.g., of the
acquisition of title by possession. 3. The institution of
a legal process or appeal. PI. interpellationes (in-tdr
pa-lay-shee-oh-neez).
interplea. (17c) A pleading by which a stakeholder places
the disputed property into the court's registry; the plea
made by an interpleader. See INTERPLEADER.
interplead, vb. (16c) 1. (Of a claimant) to assert one's own
claim regarding property or an issue already before the
court. 2. (Of a stakeholder) to institute an interpleader
action, usu. by depositing disputed property into the
court's registry to abide the court's decision about who
is entitled to the property. Cf. IMPLEAD. [Cases: Inter
pleader
interpleader, n. (16c) 1. A suit to determine a right to
property held by a usu. disinterested third party (called
a stakeholder) who is in doubt about ownership and
who therefore deposits the property with the court to
permit interested parties to litigate ownership. -Typi
cally, a stakeholder initiates an interpleader both to
determine who should receive the property and to avoid
multiple liability. Fed. R. Civ. P. 22. See STAKEHOLDER
(1). Cf. IMPLEADER; INTERVENTION (1). [Cases: Inter
pleader <.c~1.] 2. Loosely, a party who interpleads.
Also termed (in civil law) concursus.
"Interpleader is a form of joinder open to one who does
not know to which of several claimants he or she is liable,
if liable at all. It permits him or her to bring the claimants
into a single action, and to require them to litigate among
themselves to determine which, if any, has a valid claim.
Although the earliest records of a procedure similar to
interpleader were at common law, it soon became an equi
table rather than a legal procedure." Charles Alan Wright,
The Law ofFederal Courts 74, at 531 (5th ed. 1994).
Interpol (in-t;>r-pohl). See INTERNATIONAL CRIMINAL
POLICE ORGANIZATION.
interpolation (in-tdr-Pd-lay-sh~lI1), n. (17c) 1. The act of
inserting words into a document to change or clarify
the meaning. -In a negative sense, interpolation
can refer to putting extraneous or false words into a
document to change its meaning. |
the meaning. -In a negative sense, interpolation
can refer to putting extraneous or false words into a
document to change its meaning. Cf. INTERLINEATION.
2. (often pl.) Roman law. An editorial change made by
one of the compilers of the Digests and the Justinian
Code. -The compilers made insertions, deletions, and
juxtapositions in the texts, but made few real changes
to the substantive law. -interpolate, vb. interpola
tive, adj. interpolator, n.
interposition, n. (14c) 1. The act of submitting some
thing (such as a pleading or motion) as a defense to an
opponent's claim. 2. Archaic. The action ofa state, while
exercising its sovereignty, in rejecting a federal mandate that it believes is unconstitutional or overreaching.
The Supreme Court has declared that interposition is
an illegal defiance ofconstitutional authority. inter
pose, vb.
interpretatio (in-tar-pri-tay-shee-oh), n. [Latin] Roman
law. An opinion ofa Roman jurist (an interpreter of
the law, not an advocate) who did not usu. appear in
court. -Such an opinion was not originally binding,
but by the Law of Citations (A.D. 426), the opinions of
five jurists acquired binding force. See CITATIONS, LAW
OF. PI. interpretationes (in-tdr-pri-tay-shee-oh-neez).
interpretatio limitata. See restrictive interpretation
under INTERPRETATION.
interpretation, n. (14c) 1. The process of determining
what something, esp. the law or a legal document,
means; the ascertainment of meaning to be given to
words or other manifestations of intention. [Cases:
Contracts
"Interpretation, as applied to written law, is the art or
process of discovering and expounding the intended sig
nification ofthe language used, that is, the meaning which
the authors of the law designed it to convey to others."
Henry Campbell Black, Handbook on the Construction and
Interpretation of the Laws 1 (1896).
"There is more to interpretation in general than the discov
ery of the meaning attached by the author to his words.
Even if, in a particular case, that meaning is discoverable
with a high degree of certitude from external sources,
the question whether it has been adequately expressed
remains." Rupert Cross, Statutory Interpretation 149
(1976).
administrative interpretation. An interpretation given
to a law or regulation by an administrative agency.
[Cases: Administrative Law and Procedure C:::;>413;
Statutes
authentic interpretation. (1967) An interpretation
arrived at by asking the drafter or drafting body what
the intended meaning was.
'The procedure of referring the doubtful statute to its
author has acquired a name in the literature of jurispru
dence. It is called 'authentic interpretation.' ... [Although]
this device has been tried in ... recent times in certain
European countries, ... [it] has always failed, and no
thoughtful adviser would recommend it to any government
today." Lon L. Fuller, Anatomy of the Law 29-30 (1968).
comparative interpretation. (1933) A method of statu
tory construction by which parts of the statute are
compared to each other, and the statute as a whole is
compared to other documents from the same source
on a similar subject.
customary interpretation. (1902) Interpretation
based on earlier rulings on the same subject. [Cases:
Customs and Usages C=;'j 15.]
extensive interpretation. (17c) A liberal interpretation
that applies a statutory provision to a case not falling
within its literal words.
grammatical interpretation. (1830) Interpretation that
is based exclusively on the words themselves. lCases:
Statutes
895
liberal interpretation. (18c) Interpretation accord
ing to what the reader believes the author reasonably
intended, even if, through inadvertence, the author
failed to think ofit. Also termed mixed interpreta
tion. [Cases: Statutes <8=:235.]
limited interpretation. See restrictive interpretation.
logical interpretation. (1870) Interpretation that
departs from the literal words on the ground that
there may be other, more satisfactory evidence ofthe
author's true intention. -Also termed rational inter
pretation.
mixed interpretation. See liberal interpretation.
practical interpretation. See contemporaneous con
struction under CONSTRUCTION.
rational interpretation. See logical interpretation.
restrictive interpretation. (17c) An interpretation that
is bound by a principle or principles existing outside
the interpreted text. Also termed restricted inter
pretation; limited interpretation; interpretatio limitata.
Cf. unrestrictive interpretation.
statutory interpretation. See STATUTORY CONSTRUC
TION.
strict interpretation. (16c) Interpretation according to
what the reader believes the author must have been
thinking at the time of the writing, and no more.
Typically, this type of reading gives a text a narrow
meaning. [Cases: Statutes C= 174.]
unrestrictive interpretation. (1968) Interpretation in
good faith, without reference to any specific principle.
Cf. restrictive interpretation.
2. The understanding one has about the meaning of
something. [Cases: Statutes C=, l74-278.J 3. A transla
tion, esp. oral, from one language to another. 4. CHAR
ACTERIZATION (1). See CONSTRUCTION (2). -interpret,
vb. interpretative, interpretive, adj.
interpretation clause. (1827) A legislative or contractual
provision giving the meaning offrequently used words
or explaining how the document as a whole is to be
construed. [Cases: Statutes C=179.]
interpretatio viperina (in-t~r-pri-tay-shee-oh VI-Pd
n-na). [Law Latin "a viper's interpretation"] Hist. A dis
approved method ofconstruction, by which ambiguous
documents are interpreted in a way that destroys their
effectiveness.
interpretative rule. Administrative law. 1. The require
ment that an administrative agency explain the statutes
under which it operates. 2. An administrative rule
explaining an agency's interpretation of a statute.
Also termed interpretive rule. Cf. LEGISLATIVE RULE.
[Cases: Administrative Law and Procedure
382.1.]
interpreted testimony. See TESTIMONY.
interpreter. (l4c) A person who translates, esp. orally,
from one language to another; esp., a person who is
sworn at a trial to accurately translate the testimony of
a witness who is deafor who speaks a foreign language. interrogation
[Cases: Criminal Law Trial Witnesses
<8=:230.]
interpretive rule. See INTERPRETATIVE RULE.
interpretivism. (1978) A doctrine of constitutional
interpretation holding that judges must follow norms
or values expressly stated or implied in the language
of the Constitution. Cf. NONINTERPRETIVISM; ORIGI
NALISM.
"A long-standing dispute in constitutional theory has gone
under different names at different times, but today's ter
minology seems as helpful as any. Today we are likely to
call the contending sides 'interpretivism' and 'noninter
pretivism' -the former indicating that judges deciding
constitutional issues should confine themselves to enforc
ing norms that are stated or clearly impliCit in the written
Constitution, the latter the contrary view that courts should
go beyond that set of references and enforce norms that
cannot be discovered within the four corners of the instru
ment." John Hart Ely, Democracy and Distrust 1 (1980).
inter quattuor parietes (in-tdr kwah-too-<>r p<>-rI-<>
teez), adv. & adj. [Law Latin] Within the four walls.
interracial adoption. See transracial adoption under
ADOPTION.
interracial marriage. See MISCEGENATION.
inter regalia (in-tdr ri-gay-lee-<, adj. [Latin] Included in
the royal powers or prerogatives; among other things
belonging to the sovereign. -Also termed in patrimo
nio principis. See REGALIA.
interregnum (in-t<>-reg-ndm). (l6c) 1. An interval
between reigns; the time when a throne is vacant
between the reign of a sovereign and the accession of
a successor. 2. Archaic. Authority exercised during a
temporary vacancy of the throne or a suspension of
the regular government. 3. A break or pause in a con
tinuous event.
interrogatee (in-ter-<>-g;t-tee). A person who is interro
gated. -Also termed interrogee (in-ter-d-gee).
interrogation, n. (ISc) The formal or systematic ques
tioning of a person; esp., intensive questioning by the
police, usu. of a person arrested for or suspected of
committing a crime. _ The Supreme Court has held
that, for purposes ofthe Fifth Amendment right against
self-incrimination, interrogation includes 110t only
express questioning but also words or actions that the
police should know are reasonably likely to elicit an
incriminating response. Rhode Island v. Innis, 446 U.S.
291, 100 S.Ct. 1082 (1980). [Cases: Criminal Law
412.1(4).J interrogate, vb. -interrogative, adj.
custodial interrogation. (1966) Police questioning of
a detained person about the crime that he or she is
suspected ofhaving committed. -Miranda warnings
must be given before a custodial interrogation. [Cases:
Criminal Law~412.1(4).]
investigatory interrogation. (1962) Routine, nonac
cusatory questioning by the police of a person who
is not in custody.
noncustodial interrogation. (1966) Police questioning
ofa suspect who has not been detained and can leave
at wilL -Miranda warnings are usu. not given before
896 interrogative question
a noncustodial interrogation. [Cases: Criminal Law
('::::412.1(4).]
interrogative question. Civil law. In a criminal trial,
a question asked of a witness to elicit inadmissible
evidence relating to the crime at issue in the case. Cf.
ASSERTIVE QUESTION.
interrogator (in-ter-<l-gay-t<lr). (18c) One who poses
questions to another.
interrogatory (in-t<l-rog-<l-tor-ee), n. (16c) A written
question (usu. in a set of questions) submitted to an
opposing party in a lawsuit as part of discovery. See
Fed. R. Civ. P. 33. [Cases: Federal Civil Procedure (;:::::
1471-1542; Pretrial Procedure
contention interrogatory. An interrogatory designed to
discover the factual basis ofthe allegations in a com
plaint, answer, or counterclaim, or to determine the
theory of the opposing party's case. [Cases: Federal
Civil Procedure 0=' 1506; Pretrial Procedure
276.]
cross-interrogatory. (17c) An interrogatory from a
party who has received a set of interrogatories. [Cases:
Pretrial Procedure (;:::::-241, 246.]
fact interrogatory. See identification interrogatory.
identijication interrogatory. A request for the respond
ing party to identify relevant documents, tangible
objects, or individuals who have knowledge of facts
relating to the lawsuit. Also termed Jact interroga
tory; state-all-facts interrogatory.
special interrogatory. (18c) A written jury question
whose answer is required to supplement a general
verdict. -This term is not properly used in federal
practice, which authorizes interrogatories and special
verdicts, but not special interrogatories. Fed. R. Civ. P.
49. The term is properly used, however, in the courts
of some states. -Also termed special issue. [Cases:
Federal Civil Procedure C=)2211-2220; Trial C-~
346-366.]
state-all-facts interrogatory. See identification inter
rogatory.
interrogee. See INTERROGATEE.
in terrorem (in te-ror-am), adv. & adj. [Latin "in order
to frighten"] (17c) By way of threat; as a warning <the
demand letter was sent in terrorem; the client has no
intention ofactually suing>.
in terrorem clause. See NO-CONTEST CLAUSE.
in terrorem populi (in te-ror-am pop-ya-h), adv. [Latin]
Hist. To the terror of the people. _ This phrase was nec
essary in an indictment for riot.
interruptio (in-tar-rap-shee-oh). [Latin] Interruption.
-This word refers to a break in the possession ofland
that ends a prescriptive claim.
interrnption. (l5c) A break in the period of possession
ofland, pOSSibly ending a claim to ownership by pre
scriptive right
legal interruption. Louisiana law. A break in the
running of prescription that occurs when the property's possessor acknowledges another person's
ownership rights, or the owner (or obligor) sues
the possessor (or obligor). La. Civ. Code arts. 3462,
3464. Also termed legal interruption ojprescrip
tion. [Cases: Adverse Possession (;:::::-46; Easements
7(6).]
natural interruption. Louisiana law. A break of more
than one year in a possessor's period of possession
after a rightful owner or a third person seizes the
real property. La. Civ. Code art. 3465. Also termed
natural interruption ojprescription. [Cases; Adverse
Possession 0='46; Easements (>::::>7(5), 7(6).]
inter rusticos (in-t<lr ras-ti-kohs), adv. [Latin] Among
the unlearned.
inter se (in-tar see or say). [Latin "between or among
themselves"] |
the unlearned.
inter se (in-tar see or say). [Latin "between or among
themselves"] (1845) (Of a right or duty) owed between
the parties rather than to others. Also termed inter
sese (in-tar see-see).
"[TJhe law of nations is, or at least includes, a branch of
natural law, namely, the rules of natural justice as applica
ble to the relations of states inter se." John Salmond, Juris'
prudence 32 (GlanVille L. Williams ed., 10th ed. 1947).
intersection. (16c) A place where two roads meet or form
a junction.
inter se doctrine. Int'llaw. The now-defunct doctrine
that relations between members of the British Com
monwealth were in no circumstances international
and were incapable of giving rights and duties under
international law.
inter sese. See INTER SE.
interspollsal, adj. (1906) Between husband and wife.
interspousal immunity. See husband-wife immunity
under IMMUNITY (2).
interspousal tort immunity. See husband-wife immunity
under IMMUNITY (2).
interstate, adj. (1844) Between two or more states or resi
dents ofdifferent states.
interstate adoption. See ADOPTION.
interstate agreement. (1876) An agreement between
states. Cf. interstate compact under COMPACT. [Cases:
States
Interstate Agreement on Detainers Act. A law, origi
nally enacted in 1956, that allows the federal govern
ment, certain states, and the District of Columbia to
temporarily obtain custody ofa prisoner for trial even
though the prisoner is already incarcerated elsewhere.
-Under the Act, ifa prisoner makes a written request
for a disposition of the untried charges in the second
forum, the government obtaining custody must try the
prisoner within 180 days of the request. 18 USCA App.
arts. 1-9. See UNIFORM MANDATORY DISPOSITION OF
DETAINERS ACT.
interstate commerce. See COMMERCE.
Interstate Commerce Commission. The now-defunct
federal agency established by the Interstate Commerce
Act in 1887 to regulate surface transportation between
897 inter virum et uxorem
states by certifying carriers and pipelines and by moni
toring quality and pricing . In December 1995, when
Congress eliminated this agency, the Surface Trans
portation Board (STB) - a three-member board that
is a division of the Department of Transportation
assumed most ofthe agency's duties. Abbr. ICC. See
SURFACE TRANSPORTATION BOARD. [Cases: Commerce
C=>83.]
interstate compact. See COMPACT.
Interstate Compact on the Placement ofChildren. An
agreement whose purpose is to ensure that when states
are involved in the placement or adoption of children
across state lines, the states cooperate with each other
to facilitate the process and to protect the children .
This compact is intended to secure states' cooperation
in investigating the suitability of proposed adoptive
homes in an interstate adoption and also to alleviate
contlicts that often occur when the agencies and courts
of more than one state are involved. The compact has
been enacted in almost identical form in all SO states
as well as in the District of Columbia and the Virgin
Islands. Abbr. ICPC. Often shortened to Interstate
Compact. [Cases: Infants
interstate extradition. See EXTRADITION.
interstate income-withholding order. (1994) A court
order entered to enforce a support order of a court of
another state by withholding income ofthe defaulting
person. [Cases: Child Support C=>442, 508(1).]
interstate law. (1866) 1. INTERNATIONAL LAW. 2. The
rules and principles used to determine controversies
between residents of different states.
interstate rendition. See RENDITION (2).
interstate trade. See interstate commerce under
COMMERCE.
intersubjective zap. In critical legal studies, a so-called
spontaneous moment of shared intuition. -Also
termed zap.
intertwining doctrine. The principle that if arbitrable
and nonarbitrable claims arise from a single transac
tion and the claims are factually and legally mingled,
a court can refuse to compel arbitration of any claims.
This doctrine is oflimited effect because the Federal
Arbitration Act usu. preempts it. [Cases: Alternative
Dispute Resolution C=>155.]
intervener. See INTERVENOR.
intervening act. See intervening cause under CAUSE (1).
intervening agency. See intervening cause under CAUSE
(1).
intervening cause. See CAUSE (1).
intervening damages. See DAMAGES.
intervening force. 1. See FORCE. 2. See intervening cause
under CAUSE (1).
intervening rights. Patents. An infringement defense
based on the right of a person who practiced a patent's
broadened claims to continue practicing an invention,
even though the invention's patent was reissued because of inadvertent claim errors in the original patent. 35
USCA 252, second paragraph. -Also termed doctrine
ofintervening rights. [Cases: Patents C=> 138(2).]
intervenor. (17c) One who voluntarily enters a pending
lawsuit because ofa personal stake in it. -Also spelled
intervener. [Cases: Federal Civil Procedure C=>311;
Parties C=>37.]
intervention, n. (1860) 1. The entry into a lawsuit by a
third party who, despite not being named a party to
the action, has a personal stake in the outcome. See
Fed. R. Civ. P. 24. The intervenor sometimes joins the
plaintiff in claiming what is sought, sometimes joins
the defendant in resisting what is sought, and some
times takes a position adverse to both the plaintiff and
the defendant. Cf. IMPLEADER; INTERPLEADER. [Cases:
Federal Civil Procedure C:=>311; Parties C=>37.] 2. The
legal procedure by which such a third party is allowed
to become a party to the litigation. -Formerly also
termed (in senses 1 & 2) trial of right ofproperty. 3.
Int'llaw. One nation's interference by force, or threat
offorce, in another nation's internal affairs or in ques
tions arising between other nations. -intervene,
vb. -interventionary, adj.
"Intervention mayor may not involve the use of force. It is
frequently possible for a powerful state to impair the politi
cal independence of another weaker state without actually
utilizing its armed forces. This result may be accomplished
by lending open approval, as by the relaxation of an arms
embargo, to a revolutionary group headed by individuals
ready to accept the political or economic dominance of the
intervening state. It may be accomplished by the withhold
ing of recognition of a new government, combined with
various forms of economic and financial pressure until the
will of the stronger state prevails through the resignation
or overthrow of the government disapproved." Philip C.
Jessup, A Modern Law of Nations 172-73 (1949).
humanitarian intervention. An intervention by the
international community to curb abuses of human
rights within a country, even if the intervention
infringes the country's sovereignty.
intervention duty. Maritime law. A shipowner's obli
gation to remedy hazardous working conditions for
longshore workers, even though the shipowner did not
create the condition, when the shipowner knows of a
nonobvious condition arising in an area that cannot
be avoided by the longshore workers in performing
their duties. Cf. ACTlVE-OPERATIONS DUTY; TURNOVER
DUTY. [Cases: Shipping C=>84(3).]
intervertere possessionem (in-tdr-v<lr-tdr-ee pd-zes[h]
ee-oh-nam). [Latin] Scots law. To intercept possession;
to alter the possession. Ifa bailee received an item
under a bailment and then stole the item, the bailee
changed the nature ofthe possession.
interview-summary form. Patents. A US. Patent and
Trademark Office form for noting in the record the
contents of a conversation, by phone or in person,
between a patent examiner and an applicant.
inter virum et uxorem (in-tdr VI-rdm et dk-sor-dm), adv.
& adj. [Latin] Between husband and wife.
898 inter vivos
inter vivos (in-t<lr vI-vohs or vee-vohs), adj. [Latin
"between the living"] (1S37) Ofor relating to 'property
conveyed not by will or in contemplation of an
imminent death, but during the conveyor's lifetime.
inter vivos, adv.
inter vivos gift. See GIFT.
inter vivos transfer. See TRANSFER.
inter vivos trust. See TRUST.
intestabilis (in-tes-tay-bd-lis), adj. [Latin] Ilist. Disquali
fied from being a witness.
intestable, adj. 1. Not capable ofbeing tested <an intes
table DNA sample>. 2. Legally incapable of making a
will or of benefitting under a will <an insane person
is intestable in all states> <the slaying-statute makes
killers intestable in relation to their victims>. 3. Dis
qualified from giving evidence, esp. testifying <the
witness is intestable because ofextreme youth>.
intestacy (in-tes-td-see). (ISc) The state or condition
of a person's having died without a valid wilL Cf.
TESTACY.
intestate (in-tes-tayt), adj. (I4c) 1. Of or relating to a
person who has died without a valid will <having
revoked her will without making a new one, she was
intestate when she died>. 2. Of or relating to the
property owned by a person who died without a valid
will <an intestate estate>. [Cases: Descent and Distri
bution (;~19.)3. Ofor relating to intestacy <a spouse's
intestate share>. Cf. TESTATE. 4. Archaic. (Of a person)
not qualified to testify <the witness could not testify
after being found intestate>.
intestate, n. (I7c) One who has died without a valid will.
Cf. TESTATOR.
partial intestate. One who has died with a valid will
that does not dispose of all of his or her net probate
estate.
intestate law. (ISc) Ihe relevant statute governing suc
cession to estates ofthose who die without a valid will.
[Cases: Descent and Distribution
intestate share. See SHARE.
intestate succession. See SUCCESSION (2).
intestato (in-tes-tay-toh), adv. [Latin] Roman law. (Of a
succession) without a wilL
intestatus (in-tes-tay-tds), n. & adj. [Latin] Roman law.
An intestate; a person who dies without a will. This
term had the same meaning in early English law.
in testimonium (in tes-t<l-moh-nee-dm), adv. & adj.
[Latin] In witness; in evidence ofwhich . This phrase
sometimes opens attestation clauses.
in the course ofemployment. (1911) Workers' compensa
tion. (Of an accident) having happened to an on-the
job employee within the scope ofemployment. [Cases:
Workers' Compensation (:::=>614.]
in thesi (in thee-SIlo [Latin) Hist. In the particular case,
which has occurred. Cf. IN HYPOTHESI.
in the year of Our Lord. See ANNO DOMINI. intimate association, freedom of. See FREEDOM OF
ASSOCIATION.
intimation. Scots law. Notice ofa legal obligation coupled
with a warning of the penalties for failure to comply.
intimidation, n. (l7c) Unlawful coercion; extortion.
In England, intimidation was established as a tort
in the ]964 case of Rookes v. Barnard, 1964 App. Cas.
1129 (P.e. ]964) (appeal taken from B.e.). [Cases: Torts
<::=436.] -intimidate, vb. -intimidatory, adj.
intimidator, n.
"The wrong of intimidation includes all those cases in which
harm is inflicted by the use of unlawful threats whereby the
lawful liberty of others to do as they please is interfered
with. This wrong is of two distinct kinds, for the liberty of
action so interfered with may be either that of the plaintiff
himself, or that of other persons with resulting damage to
the plaintiff." R.F.V. Heuston, Salmond on the Law ofTorts
364 (17th ed. 1977).
inUtle, vb. Archaic. See ENTITLE.
in toto (in toh-toh), ad. [Latin "in whole"] (ISc) Com
pletely; as a whole <the company rejected the offer in
toto>.
intoxicant, n. (1S63) A substance (esp. liquor) that
deprives a person of the ordinary use ofthe senses or
of reason.
intoxication, n. (ISc) A diminished ability to act with
full mental and physical capabilities because ofalcohol
or drug consumption; drunkenness. See Model Penal
Code 2.0S.[Cases: Criminal Law~~S2-57; Homicide
(:::=>821-824; Negligence 535(14).] intoxi
cate, vb.
culpable intoxication. See voluntary intoxication.
involuntary intoxication. (1870) The ingestion of
alcohol or drugs against one's will or without one's
knowledge . Involuntary intoxication is an affir
mative defense to a criminal or negligence charge.
[Cases: Criminal Law Homicide
pathological intoxication. (1947) An extremely exag
gerated response to an intoxicant . This may be
treated as involuntary intoxication if it is unforesee
able.
public intoxication |
ant . This may be
treated as involuntary intoxication if it is unforesee
able.
public intoxication. (1SS5) The condition of a person
who is under the influence ofdrugs or alcohol in a
place open to the general public . In most American
jurisdictions, public intoxication is considered a mis
demeanor. In some states, alcoholism is a defense if
the offender agrees to attend a treatment program.
[Cases: Chemical Dependents
self-induced intoxication. See voluntary intoxication.
voluntary intoxication. (ISc) A willing ingestion of
alcohol or drugs to the point of impairment done
with the knowledge that one's physical and mental
capabilities would be impaired . Voluntary intoxi
cation is not a defense to a general-intent crime, but
may be admitted to refute the existence ofa particu
lar state of mind for a specifiC-intent crime. -Also
termed culpable intoxication; self-induced intoxica
899 intromission
tion. [Cases: Criminal LawC--:>53-55; Homicide
821,822.]
intoxication assault. See ASSAULT.
intoxication manslaughter. See MANSLAUGHTER.
intoxilyzer (in-tok-si-lr-zdr). See BREATHALYZER.
intoximeter (in-tok-sim-d-tdr). See BREATHALYZER.
intra (in-trd), adv. & adj. [Latin) Within. Cf. INFRA.
"The use of infra (below) in the sense and place of intra
(within) is a corruption of very ancient date.... The
expression 'under age' (the correct literal translation of
infra aetatem) indeed, is of more common occurrence than
'within age.' But the use of infra in the sense of intra, as
expressive of place, is an undoubted barbarism." 2 Alex
ander M. Burrill. A Law Dictionarv and Glossarv 75 (2d
ed. 1867).
intra anni spatium (in-trd an-I spay-shee-dm), adv. &
adj. [Latin] Within the space of a year.
intracorporate conspiracy. See CONSPIRACY.
intraday (in-trd-day), adj. Occurring within a single
day.
intra-enterprise conspiracy. See CONSPIRACY.
intra familiam (in-trd fd-mil-ee-;)m). [Latin] Hist.
Within the family. The phrase appeared in refer
ence to the status of a child before being liberated
from the father's tutelage (forisfamiliation). Cf. EXTRA
FAMILIAM.
intrafidem (in-trd fr-d;)m), adj. [Latin) Within belief;
credible.
intra fines commissi (in-tr;) fI-neez b-mis-I). [Law
Latin) Hist. Within the limits ofthe trust. The phrase
appeared in reference to an agent's actions committed
within the limits of the agency.
intragovernmentaJ, adj. Within a government; between
a single government's departments or officials.
intra legem. See EQUITY INTRA LEGEM.
intraliminal right (in-trd-lim-d-nill). Mining law. The
privilege to mine ore in areas within the boundaries of
a mineral claim . In contrast to an extralateral right,
an intraliminal right does not give the holder the right
to mine a vein of are outside the lease even if the vein
lies mostly within the lease. Cf. APEX RULE.
intra luctus tempus (in-trd l~k-tils tern-pas), adv. & adj.
[Latin] Within the time of mourning.
intra maenia (in-tril mee-nee-il), adv. & adj. [Latin] Hist.
Within the walls (of a house) . This term was used
most commonly in reference to domestic servants.
intransitive covenant. See COVENANT (1).
in transitu (in tran-si-t[y]oo or tranz-i-t[y]oo). [Latin
"in transit; on the journey") Archaic. Being conveyed
from one place to another.
intra parietes (in-trd Pil-rI-il-teez), adv. [Latin] Within
one's own walls (i.e., in private). This phrase was
formerly used most commonly in reference to matters
settled out of court. intra paternam familiam (in-tr;) p;)-tilr-nilm fd-mil
ee-ilm). [Law Latin] Hist. Within the father's family.
Cf. EXTRA PATERNAM FAMILIAM.
intra quattuor maria (in-t;)r kwah-too-ilr mar-ee-;),
adv. & adj. [Latin] Within the four seas.
intrastate commerce. See COMMERCE.
intra trajectum (in-tril trd-jek-t;)m), adv. & adj. [Latin]
In the passage over; on the voyage over. -Also spelled
in traiectu.
intra triduum (in-tr;) trij-[y]oo-ilm). [Latin] Hist. Within
three days.
intra vires (in-tfd vI-reez), adj. [Latin "within the powers
(of)"] (1877) Ofor referring to an action taken within a
corporation's or person's scope ofauthority <calling a
shareholders' meeting is an intra vires function of the
board of directors>. Cf. ULTRA VIRES. -intra vires,
adv.
intrinsec service (in-trin-zik or -sik). Hist. The feudal
services owed by a tenant to an immediate lord; the
services arising from an agreement between the tenant
and the lord. Also termed intrinsecum servitium
(in-trin-si-bm sdr-vish-ee-ilm).
intrinsic (in-trin-zik or -sik), adj. Belonging to a thing
by its very nature; not dependent on external circum
stances; inherent; essential.
intrinsic ambiguity. See patent ambiguity under AMBI
GUITY.
intrinsic evidence. See EVIDENCE.
intrinsic fraud. See FRAUD.
intrinsic test. Copyright. A subjective, fact-driven test
for infringement whereby the fact-trier gauges whether
a reasonable person would perceive substantial simi
larities between two expressions. Cf. EXTRINSIC TEST.
[Cases: Copyrights and Intellectual Property ~51.)
intrinsic value. See VALUE (2).
introduce into evidence. (18c) To have (a fact or object)
admitted into the trial record, allowing it to be con
sidered by the jury or the court in reaching a decision.
[Cases: Federal Civil Procedure ~2011; Trial
43.]
introducta (in-tril-d",k-til), n. [Latin] Roman law. Personal
property brought into a leased apartment by the tenant.
The lessor held a tacit mortgage over introducta to
ensure payment of rent. Cf. INVECTA ET ILLATA.
introductory clause. The first paragraph of a contract,
which typically begins with words such as "This Agree
ment is made on [date] between [parties' names]."
Also termed commencement; exordium.
introductory recital. See RECITAL.
intromission (in-trd-mish-iln). (16c) 1. The transac
tions of an employee or agent with funds provided by
an employer or principal; loosely, dealing in the funds
ofanother. 2. Scots law. The act ofhandling or dealing
with the affairs or property ofanother; the posseSSion
ofanother's property, with or without legal authOrity.
intruder 900
legal intromission. Scots law. An authorized intromis
sion, such as a creditor's enforcement of a debt.
necessary intromission. Scots law. The intromission
occurring when a spouse continues in possession of
the deceased spouse's goods, for preservation.
vitious intromission (vish-Cls). Scots law. Unauthor
ized dealing with the property ofanother person, esp.
a deceased person. -Also spelled vicious intromis
sion.
'The effect of vitious intromission is to render the heir
who is guilty of it liable, under the passive title of vitious
intromission, for the debts of the ancestor universally
the severity of this passive title being intended to prevent
the carrying off of moveables, which are, from their nature,
so liable to embezzlement." William Bell, Bell's Dictionary
and Digest of the Law ofScotland 521 (George Watson ed.,
1882).
3. Penile penetration into the vagina. See PENETRA
TION (1).
intruder. (ISc) A person who enters, remains on, uses, or
touches land or chattels in another's possession without
the possessor's consent.
intrusion, n. (ISc) 1. A person's entering without per
mission. See TRESPASS. [Cases: Trespass C:=> 12.] 2. In
an action for invasion of privacy, a highly offensive
invasion of another person's seclusion or private life.
[Cases: Torts 0340.]- intrude, vb. intrusive,
adj.
intrust, vb. Archaic. See ENTRUST.
intuitu matrimonii (in-t[y]oo-;:J-t[y]oo ma-tr;:J-moh
nee-I). [Latin] Rist. In the prospect of marriage.
intuitu mortis (in-t[y]oo-Cl-t[y]oo mor-tis). [Latin] Rist.
In the prospect ofdeath.
intus habet (in-tCls hay-b;:Jt). [Law Latin] Rist. Has in
his own hands . The phrase appeared in reference to
the presumption that the pupil's money that is unac
counted for and held by the tutor is sufficient to offset
any claim that the tutor may have against the pupiL
in tuto (in t[y]oo-toh), [Law Latin] Rist. In safety.
inundate. (I6c) To overflow or overwhelm; esp., to flood
with water.
inure (in-yoor), vb, (I5c) 1. To take effect; to come into
use <the settlement proceeds must inure to the benefit
ofthe widow and children>. 2. To make accustomed to
something unpleasant; to habituate <abused children
become inured to violence>. Also spelled enure.
inurement, n.
inurement. A benefit; something that is useful or ben
eficial <a taxable inurement to the benefit of a private
person>.
private inurement. Tax. An inurement consisting in
the use by a private shareholder or an individual who
has an insider relationship with a tax-exempt orga
nization of the organization's earnings or assets for
personal gain other than reasonable and adequate
compensation . Such a benefit is prohibited. See IRC
(26 USCA) 50I(c)(3). inurit labem realem (in-yuur-it lay-bGm ree-ay-IGm).
[Law Latin] Scots law. Brands (a thing) with a real
defect. See LABES REALIS.
in utero (in yoo-tCl-roh). [Latin "in the uterus"] In the
womb; during gestation or before birth <child in
utero>.
in utroque jure (in yuu-troh-kwee joor-ee), adv, & adj.
[Latin] In both laws that is, civil law and canon
law.
invadiare (in-vay-dee-air-ee), vb. [Law Latin] Rist. To
pledge or mortgage land.
invadiatio (in-vay-dee-ay-shee-oh). [Law Latin] Rist. A
pledge or mortgage. Cf. VADIATIO.
invadiatus (in-vay-dee-ay-tGs). [Law Latin] Rist. A
person who is under a pledge.
invalid (in-val-id), adj. (17c) 1. Not legally binding <an
invalid contract>. 2. Without basis in fact <invalid alle
gations>.
invalid (in-vG-lid), n. (I8c) A person who, because of
serious illness or other disability, lacks the physical
or mental capability of managing his or her day-to
day life. [Cases: Guardian and Ward 09.5; Mental
Health C=;)3.]
invalid agreement. See invalid contract under
CONTRACT.
invalid contract. See CONTRACT.
invalid will. See WILL.
invasion. (I7c) 1. A hostile or forcible encroachment on
the rights ofanother.
intentional invasion. A hostile or forcible encroach
ment on another's interest in the use or enjoyment of
property, esp. real property, though not necessarily
inspired by malice or ill wilL
2. The incursion of an army for conquest or plunder.
3. Trusts. A withdrawal from principaL. In the third
sense, the term is used as a metaphor. [Cases: Trusts
(;::;)276.]- invade, vb.
invasion ofprivacy. (1862) An unjustified exploitation of
one's personality or intrusion into one's personal activi
ties, actionable under tort law and sometimes under
constitutional law. See RIGHT OF PRIVACY, [Cases: Torts
C:=>329-33L]
invasion ofprivacy by appropriation. The use of
another's name or likeness for one's own benefit,
esp. commercial gain . This misappropriation tort
protects one's property right to the economic benefits
flowing from the commercial use of one's face or
name. [Cases: Torts C:=>383-40S.]
invasion ofprivacy byfalse light. The use ofpublicity
to place another in a false light in the public eye .
The false light mayor may not be defamatory or fic
tional but the public use must be one that a reasonable
person would object to under the circumstances. See
FALSE LIGHT (1). [Cases: Torts 034 |
a reasonable
person would object to under the circumstances. See
FALSE LIGHT (1). [Cases: Torts 0340.]
901 inventory
invasion ofprivacy by intrusion. An offensive, inten
tional interference with a person's seclusion or private
affairs. [Cases: Torts 350.]
invasion ofprivacy by public disclosure ofprivate
facts. 1he public revelation of private information
about another in an objectionable manner . Even if
the information is true and nondefamatory, a cause
of action may arise.
invecta et illata (in-vek-ta et i-Iay-ta). [Latin "(things)
carried in and (things) brought in"] Roman law. Goods
brought onto a rural or urban leasehold by the lessee.
The lessor held a tacit mortgage over the goods to
ensure payment of rent. Cf. INTRODUCTA.
inveigle (in-vay-gal), vb. (16c) To lure or entice through
deceit or insincerity <she blamed her friend for invei
gling her into making the investment>. inveigle
ment, n.
invent, vb. (15c) To create (something) for the first
time.
invented consideration. See CONSIDERATION (1).
inventio (in-ven-shee-oh), n. [Latin] Roman law. A
thing found; a finding . Beginning in the reign of
Hadrian, the finder of treasure either acquired title to
the property or shared it with the landowner on whose
land it was found. See TREASURE TROVE; THESAURI
I!'lVENTIO. PI. inventiones (in-ven-shee-oh-neez).
invention, n. (14c) Patents.!. A patentable device or
process created through independent effort and char
acterized by an extraordinary degree of skill or inge
nuity; a newly discovered art or operation . invention
embraces the concept of nonobviousness. [Cases:
Patents (~16(1).] 2. The act or process of creating
such a device or process. 3. Generally, anything that is
created or devised. -invent, vb.
'The truth is, the word cannot be defined in such manner
as to afford any substantial aid in determining whether
a particular device involves an exercise of the inventive
faculty or not. I n a given case we may be able to say that
there is present invention of a very high order. In another
we can see that there is lacking that impalpable something
that distinguishes invention from simple mechanical skill.
Courts, adopting fixed principles as a guide, have by a
process of exclusion determined that certain variations
in old devices do or do not involve invention; but whether
the variation relied upon in a particular case is anything
more than ordinary mechanical skill is a question which
cannot be answered by applying the test of any general
definition." McClain v. Ortmayer, 141 U.S. 419, 427,12 S.Ct.
76, 78 (1891).
"An 'invention' is any art, machine, manufacture, deSign,
or composition of matter, or any new and useful improve
ment thereof, or any variety of plant, which is or may be
patentable under the patent laws. 37 C.F.R. 501.3(d)." 60
Am. Jur. 2d Patents 894, at 601 n. 98 (1987).
abandoned invention. An invention that an inventor
has either deliberately stopped trying to exploit, or
has otherwise treated in a way that precludes claiming
the invention in a later patent . Under 102(c) of
the Patent Act, abandonment bars a patent on that
invention. But abandonment of an imperfect form of
an invention does not bar a patent on a later-perfected form. Unless publicly known, an abandoned inven
tion is not prior art to a later inventor. Under 102(g)
of the Patent Act, abandonment of the same inven
tion by a first inventor also prevents the first inventor
from blocking the second inventor's patent applica
tion in an interference. Cf. ABANDONED APPLICATION.
[Cases: Patents (;::J82.]
distinct invention. One part of an invention that can
be used on its own, and the absence ofwhich will not
prevent the remainder ofthe invention from working.
When the subject matter of a patent application is
found to be multiple distinct inventions, the examiner
requires the inventor to restrict the application to a
single invention. See RESTRICTION (4). Cf. indepen
dent invention.
improvement invention. A nontrivial and nonobvi
ous betterment of an existing device or process.
The improvement may be patented, but the protection
applies only to the improvement, not to the invention
improved on.
independent invention. An invention that bears no
relation to another invention, esp. to another inven
tion covered in the same patent application . A single
patent may not cover multiple independent inven
tions; the applicant must elect one and drop any
others from the application. See RESTRICTION (4).
Cf. distinct invention.
new-use invention. Discovery of a new use for an
existing invention . As long as the new use is non
obvious and actually useful-it may be patented.
35 USCA 101-03.
small invention. See UTILITY MODEL.
software-based invention. A device or machine that
uses innovative software to achieve results . A
software-based invention, process, or method may
qualify for a patent, but the physical components and
the underlying software are usu. not separately pat
entable.
inventively new. Patents. Original in any way . The
phrase is sometimes used to distinguish "new" in the
usual sense from the term ofart in patent law.
inventive step. Patents. In an invention, some advance
ment that is not obvious to a person reasonably skilled
in the art. The European Patent Convention requires
an inventive step to qualify for a patent. The term is
roughly equivalent to nonobviousness in American
patent practice.
inventory, n. (ISc) 1. A detailed list of assets; esp., an
executor's or administrator's detailed list of the pro
bate-estate assets <make an inventory ofthe estate> .
The term also sometimes denotes a divorcing spouse's
detailed list ofall his or her marital and separate assets
and liabilities. Also termed inventory and appraise
ment. See PROBATE ESTATE; ACCOUNTING. [Cases: Exec
utors and Administrators (;::J62-73.] 2. Accounting.
The portion of a financial statement reflecting the value
of a business's raw materials, works-in-progress, and
finished products <the company's reported inventory
inventory fee 902
was suspiciously low>. 3. Raw materials or goods in
stock <the dealership held a sale to clear out its October
inventory>. 4. Bankruptcy. Personal property leased
or furnished, held for sale or lease, or to be furnished
under a contract for service; raw materials, work in
process, or materials used or consumed in a business,
including farm products such as crops or livestock <the
debtor was found to have inventory that was valued at
$300,000>. -inventory, vb.
"Section 547 itself defines 'inventory' and 'receivable.'
Do not use the U.CC definitions of these terms, or the
definitions of them learned in business law classes. It is
especially important to note that, for purposes of section
547, 'inventory' includes 'farm products such as crops or
livestock ...." David G. Epstein et ai., Bankruptcy 6-35,
at 351 (1993).
inventory fee. A probate court's fee for services rendered
to a decedent's estate.
inventory search. See SEARCH.
inventory-turnover ratio. Accounting. The result of
dividing the cost of goods sold by the average value of
inventory. _ This calculation is used to determine the
effectiveness ofthe company's inventory-management
policy.
in ventre sa mere (in ven-tree sa mer). See EN VENTRE
SA MERE.
inventus (in-ven-t<ls), p.pl. [Latin] Found. -This word
appears in various phrases, such as thesaurus inventus
Ctreasure trove") and non est inventus ("he is not
found").
inveritare (in-ve-rJ-tair-ee), vb. [Law Latin] To make
proofofa thing.
inverse condemnation. See CONDEMNATION.
inverse-Erie doctrine. See REVERSE-ERIE DOCTRINE.
inverse floater. See inverse-floating-rate note under NOTE
(1).
inverse-floating-rate note. See :SOTE (1).
inverse-order-of-alienation doctrine. The principle that
ifa secured creditor has not collected on the mortgage
or lien on a property sold off in successive parcels, the
purchaser ofthe encumbered property may require the
creditor to collect first from any parcel still held by the
original owner, then from the parcel sold last, then next
to last, and so on until the amount has been satisfied.
The creditor must exhaust an asset before attempting
to recover the balance ofthe mortgage or lien from the
next most recently transferred asset. Also termed
rule of marshaling liens. [Cases; Debtor and Creditor
Go13; Mortgages (,."::>290.]
inverse zoning. See ZONING.
inverso ordine (in-v<lr-soh or-d<l-nee). [Latin] Hist.
Contrary to rule.
inverted market. See BACKWARDATION.
invest, vb. (17c) 1. To supply with authority or power <the
U.S. Constitution invests the President with the power
to conduct foreign affairs>. See INVESTITURE (1). 2. To
apply (money) for profit <Jillson invested her entire savings in the mutual fund>. 3. To make an outlay of
money for profit <Baird invested in stocks>.
investigate, vb. (16c) 1. To inquire into (a matter) system
atically; to make (a suspect) the subject of a criminal
inquiry <the police investigated the suspect's involve
ment in the murder>. 2. To make an official inquiry
<after the judge dismissed the case, the police refused
to investigate further>.
investigating bureau. See CREDIT-REPORTING BUREAU.
investigating magistrate. See MAGISTRATE.
investigative detention. See DETENTION.
investigative grand jury. See GRAND JURY.
investigatory detention. See STOP AND FRISK.
investigatory interrogation. See INTERROGATION.
investigatory power. See POWER (3).
investigatory stop. See STOP AND FRISK.
investitive fact. See FACT.
investitive publication. See PUBLICATION.
investiture (in-ves-ta-chuur). (14c) 1. The act offormally
installing a person in a ceremony in which the person
is clothed in the insignia ofthe office's position or rank;
esp., the installation ofa cleric in office. Also termed
investment. 2. LIVERY OF SEISIN.
investment. (16c) 1. An expenditure to acquire property
or assets to produce revenue; a capital outlay. [Cases:
Contracts C::=> 193.]
fixed-dollar investment. An investment whose value
is the same when sold as it was when purchased.
Examples are bonds held to maturity, certain govern
ment securities, and savings accounts.
fixed-income investment. An investment (including
preferred stock) that pays a fixed dividend throughout
its life and is not redeemable unless the corporation
makes a special call.
net investment. 1. The net cash required to start a new
project. 2. The gross investment in capital goods less
capital consumption, including depreciation.
2. The asset acquired or the sum invested. 3. INVESTI
TURE (1). 4. LIVERY OF SEISIN.
investment adviser. A person who, for pay, advises
others, either directly or through publications or
writings, about the value ofsecurities or the advisabil
ity ofinvesting in, purchaSing, or selling securities, or
who is in the business ofissuing reports on securities.
'The term generally excludes an employee ofan invest
ment adviser; a depository institution, such as a bank;
lawyers, accountants, engineers, and teachers whose
investment advice is solely incidental to the practice of
their profeSSion; a broker-dealer whose advice is inci
dental to the conduct of business and who receives no
special compensation for that adVice; and publishers of
bona fide newspapers, newsmagazines, or business or
financial publications ofgeneral, regular, or paid circu
lation. [Cases: Securities Regulation C::=>223, 224.]
903 investor
Investment Advisers Act. A 1940 federal statute
administered by the Securities and Exchange Com
mission -that regulates investment advisers. 15 USCA
80b-l et seq. [Cases: Securities Regulation
224.J
investment bank. See BANK.
investment banker. A person or institution that under
writes, sells, or assists in raising capital for businesses,
esp. for new issues of stocks or bonds; a trader at an
investment bank. See investment bank under BANK.
investment banking. The business of underwriting or
selling securities; esp., the marketing of new stocks or
bonds.
"The term 'investment banking' can be used to encompass
[underwriting, and acting as a dealer, broker, and market
makerl. and any person in a firm performing any of those
functions could be called an investment banker. By con
vention, however, those terms are used less broadly. In
large securities firms, for example, there are a number of
departments. The one most visible to the public handles
trades for indiViduals. The technical term for the persons
working with customers in that department is 'registered
representative,' but those persons are often called brokers
or stockbrokers. Insiders would not call them investment
bankers. A department almost inVisible to the public
handles underwritings and performs a wide range of
services primarily for client companies. Among those are:
(1) assisting companies |
handles underwritings and performs a wide range of
services primarily for client companies. Among those are:
(1) assisting companies in the sale of securities, almost
always in large amounts, to such private purchasers as
insurance companies; (2) finding acquisition partners for
companies that wish to acquire or be acquired by others;
and (3) giving financial advice of various sorts to client
companies. That department is likely to be called the
investment banking department. In any case, its functions
are at the heart of the inSiders' conception of investment
banking." Larry D. Soderquist (>" Theresa A. Gabaldon, Secu
rities Law 30 (199B).
investment bill. See BILL (6).
investment company. See COMPANY.
Investment Company Act. A 1940 federal statute
enacted to curb financial malpractices and abuses by
regulating investment-company activities and trans
actions specifically, by requiring registration of
investment companies and prohibiting transactions
by unregistered companies; by making certain persons
ineligible as affiliated persons or underwriters; by regu
lating affiliations ofdirectors, officers, and employees;
by barring changes in investment policy without share
holder approval; and by regulating contracts ofadvisers
and underwriters. 15 USCA 80a-l et seq. [Cases:
Securities Regulation <)::0211-222.]
investment contract. 1. A contract in which money is
invested in a common enterprise with profits to come
solely from the efforts of others; an agreement or trans
action in which a party invests money in expectation of
profits derived from the efforts ofa promoter or other
third party. 2. A transaction in which an investor fur
nishes initial value or risk capital to an enterprise, a
portion of that amount being subjected to the risks of
the enterprise . In such an arrangement, the investor
typically does not receive the right to exercise control
over the managerial decisions ofthe enterprise. [Cases:
Securities Regulation <)::05.10, 252.] "[Aln investment contract for purposes of the Securities
Act means a contract, transaction or scheme whereby a
person invests his money in a common enterprise and is
led to expect profits solely from the efforts of the promoter
or a third party.... It embodies a fleXible rather than a
static prinCiple, one that is capable of adaptation to meet
the countless and variable schemes devised by those who
seek the use of the money of others on the promise of
profits." SEC v. Howey Co., 32B U.S. 293. 29B-99, 66 S.Ct.
1100,1103 (1946).
guaranteed investment contract. An investment
contract under which an institutional investor invests
a lump sum (such as a pension fund) with an insurer
that promises to return the principal (the lump sum)
and a certain amount of interest at the contract's
end. --Abbr. GIC.
investment-direction agreement. A contract by which
a trustee agrees not to diversify the trust's assets, even
though the trustee has the legal right to do so, and the
beneficiary agrees to hold the trustee harmless for any
losses resulting from not diversifying. -Abbr. IDA.
[Cases: Trusts <)::0217.3.]
investment discretion. The ability of a person to (1) deter
mine what will be purchased or sold by or for another
person's account, (2) decide what will be purchased or
sold by or for the account even though another may
have the responsibility, or (3) influence the purchase
or sale of securities or property in a way that, accord
ing to an administrative agency such as the Securities
and Exchange Commission, should be subject to the
agency's governing rules and regulations.
investment-grade bond. See BOND (8).
investment-grade rating. Any of the top four symbols
given to a bond after an appraisal of its quality by a
securities-evaluation agency such as Moody's . The
rating indicates the degree of risk in an investment in
the bond. See A (8).
investment income. See unearned income (1) under
INCOME.
investment indebtedness. Tax. Debt incurred by a
taxpayer to acquire or carry assets that may produce
income. The Internal Revenue Code limits the
amount ofdeductible interest on this type ofdebt.
investment property. Any asset purchased to produce a
profit, whether from income or resale.
investment security. See SECURITY.
investment tax credit. See TAX CREDIT.
investment trust. See investment company under
COMPANY.
investor. (17c) 1. A buyer of a security or other property
who seeks to profit from it without exhausting the prin
cipal. 2. Broadly, a person who spends money with an
expectation of earning a profit.
accredited investor. An investor treated under the
Securities Act of 1933 as being knowledgeable and
sophisticated about financial matters, esp. because of
the investor's large net worth . In a securities offering
that is exempt from registration, an accredited
904 invidious discrimination
investor (either a person or an entity) is not entitled
to protection under the Act's disclosure provisions,
although the investor does keep its remedies for fraud.
[Cases: Securities Regulation C;218.11.]
angel investor. A person -usu. an experienced and
successful entrepreneur, professional, or entity -that
provides start-up or growth financing to a promising
company, often together with advice and contacts.
Also termed business angel.
institutional investor. One who trades large volumes
of securities, usu. by investing other people's money
into large managed funds. Institutional investors
are often pension funds, investment companies, trust
managers, or insurance companies. See MUTUAL
FUND.
qualified investor. Securities. An investor who is an
individual and has an investment portfolio worth at
least $5 million, or a company that owns or manages
investments worth at least $25 million.
sophisticated investor. Securities. An investor who
has sufficient knowledge and experience of financial
matters to be capable ofevaluating a security's quali
ties. Sophisticated investors do not require the full
protection ofsecurities laws. [Cases: Securities Regu
lation C;218.13.)
invidious discrimination (in-vid-ee-<'1s di-skrim-<'1-nay
sh<'1n). See DISCRIMINATION.
in vinculis (in ving-kYd-lis). [Latin "in chains"] In actual
custody.
"The engagement of a magistrate to an accomplice, that
if he will give his evidence. he will experience favor, is
merely in the nature of a recommendation to mercy, for
no authority is given to ajustice ofthe peace to pardon an
offender. and to tell him that he shall be a witness against
others. He is not therefore assured of his pardon, but gives
his evidence in vinculis, in custody: and it depends on his
behaviour, whether he shall or shall not be admitted to
mercy." 1Joseph Chitty, A Practical Treatise on the Criminal
Law 82-83 (2d ed. 1826).
inviolability (in-VI-<'1-I<'1-bil-<'1-tee), n. The quality or fact
ofbeing safe from violation.
inviolable (in-vI-<l-ld-bdl), adj. (I5c) Safe from violation;
incapable ofbeing violated. -inviolability, n.
inviolate (in-vl-d-lit), ad;. (15c) Free from violation; not
broken, infringed, or impaired.
in viridi observantia (in vir-<'1-dI ob-z<'1r-van-shee-d),
adj. [Latin "in fresh observance"] Present to the minds
ofpeople, and in full force and operation.
invisible, adj. Accounting. Not reported in a financial
statement <invisible earnings>.
invitation, n. Torts. In the law ofnegligence, the entice
ment ofothers to enter, remain on, or use property or
its structures; conduct that justifies others in believing
that the possessor wants them to enter. Cf. PERMISSION
(3).[Cases: Negligence 1037.1 invite, vb.
invitation to negotiate. (1902) Contracts. A solicitation
for one or more offers, usu. as a preliminary step to
forming a contract. -Also termed invitation seeking offers; invitation to bid; invitation to treat; solicitation
for bids; preliminary letter; offer to chaffer. Cf. OFFER.
[Cases: Contracts 0::>16.)
invited error. See ERROR (2).
invitee (in-VI-tee). (1837) A person who has an express
or implied invitation to enter or use another's premises,
such as a business visitor or a member ofthe public to
whom the premises are held open. The occupier has
a duty to inspect the premises and to warn the invitee
ofdangerous conditions. -Also termed licensee with
an interest. Cf. LICENSEE (2); TRESPASSER; BUSINESS
VISITOR (1). [Cases: Negligence 0::> 1037(2).]
public invitee. (1937) An invitee who is invited to enter
and remain on property for a purpose for which the
property is held open to the public. [Cases: Negligence
C= 1037(5).]
inviter. (16c) One who expressly or impliedly invites
another onto the premises for business purposes.
Also spelled invitor. Cf. INVITEE.
invito debitore (in-vl-toh deb-i-tor-ee). [Latin] Roman
law. Without the consent of a debtor. A creditor
could assign and a third party could pay a debt invito
debitore.
invito domino (in-vl-toh dom-d-noh). [Latin] Roman
law. Against the will of the owner. The common
law doctrine oftheft was that the taking must be invito
domino.
invitor. See INVITER.
invito superiore (in-vI-toh s[y)oo-peer-ee-or-ee). [Law
Latin1Scots law. Without the consent of the superior.
Ordinarily, a vassal could not renounce a fee without
the superior's consent.
invitro fertilization. A procedure by which an egg is fer
tilized outside a woman's bodv and then inserted into
the womb for gestation. -Abbr. lVF. Cf. ARTIFICIAL
INSEMINATION; ZYGOTE INTRAFALLOPIAN TRANSFER;
GAMETE INTRAFALLOPIAN TRANSFER. [Cases: Child
Custody 0::>274.5; Child Support 0::>63; Children
Out-of-Wedlock C;215; Parent and Child C=)20.]
in vivo fertilization. The process in which an egg is fer
tilized inside a woman's body. Cf. ARTIFICIAL INSEMI
NATION; ZYGOTE INTRAFALLOPIAN TRANSFER; GAMETE
INTRAFALLOPIAN TRANSFER.
invocation. (14c) 1. The act ofcalling upon for authority
or justification. 2. The act ofenforcing or using a legal
right <an invocation ofthe contract clause>.
invoice, n. (16c) An itemized list of goods or services
furnished by a seller to a buyer, usu. specifying the price
and terms of sale; a bill ofcosts. [Cases: Evidence~-c:>
355(3).1 invoice, vb.
consular invoice. An invoice used to hasten the entry
ofgoods into a country by bearing the signature of
the country's consul as assurance that the shipment's
contents have been preverified for quantity and value.
[Cases: Customs Duties (:=64.]
905 iron-safe clause
sales invoice. A document showing details ofa purchase
or sale, including price and quantity ofmerchandise.
[Cases: Sales ~28.1
invoice book. A journal into which invoices are
copied.
involuntary, adj. (15c) Not resulting from a free and
unrestrained choice; not subject to control by the
will. involuntariness, n.
"[Tlhe law, like everyday thought, usually confines the
notion of invo!untaryto that subclass of cases which involve
purely physical, physiological, or psychological movements
of our limbs, like reflexes and convulsions, movements in
sleep, during sleepwalking, or under hypnosiS, or due to
some disease of the brain, lunacy, or automatism." Alan R.
White, Grounds of Liability 60-61 (1985).
involuntary alienation. See ALIENATION.
involuntary bailment. See BAILMENT.
involuntary bankruptcy. See BANKRUPTCY.
involuntary confession. See CONFESSION.
involuntary conversion. See CONVERSION (2).
involuntary conveyance. See involuntary alienation
under ALIENATION.
involuntary deposit. 1. See DEPOSIT (5). 2. See involun
tary bailment under BAILMENT.
involuntary dismissal. See DISMISSAL (1).
involuntary dissolution. See DISSOLUTION.
involuntary euthanasia. See EUTHANASIA.
involuntary gap claim. See CLAIM (5).
involuntary intoxication. See INTOXICATION.
involuntary lien. See LIEN.
involuntary manslaughter. See MANSLAUGHTER.
involuntary nonsuit. See NONSUIT (2).
involuntary payment. See PAYMENT.
involuntary petition. See PETITION.
involuntary plaintiff. See PLAINTIFF.
involuntary proceeding. See involuntary bankruptcy
under BANKRUPTCY.
involuntary servitude. See SERVITUDE (4).
involuntary stranding. See accidental stranding under
STRANDING |
. See SERVITUDE (4).
involuntary stranding. See accidental stranding under
STRANDING.
involuntary suretyship. See SURETYSHIP.
involuntary trust. See constructive trust under TRUST.
in witness whereof. (16c) The traditional beginning of
the concluding clause (termed the testimonium clause)
of a will or contract, esp. a deed. See TESTIMONIUM
CLAUSE.
10. abbr. BUREAU OF INTERNATIO:NAL ORGANIZATION
AFFAIRS.
10LTA (I-ohl-td). abbr. I:NTEREST ON LAWYERS' TRUST
ACCOUNTS.
10 mortgage. See interest-only mortgage under MORT
GAGE. IOU (I-oh-yoo). [abbr. "J owe you"] (17c) 1. A memoran
dum acknowledging a debt. 2. The debt itself. -Also
termed due-bill.
IP. abbr. 1. INTELl.ECTUAL PROPERTY. 2. See interested
party under PARTY (2). 3. See interested person under
PERSON (1).
IPA. abbr. See INDEPENDENT-PRACTICE ASSOCIATIO:N.
IPD. abbr. IN PRAESENTIA DOMI:NORUM.
IPO. See initial public offering under OFFERING.
ipse (ip-see). [Latin "he himself"] The same; the very
person.
ipse dixit (ip-see dik-sit). [Latin "he himself said it"]
(l5c) Something asserted but not proved <his testimony
that she was a liar was nothing more than an ipse dixit>.
[Cases: Evidence (;::::>555.4(1).1
ipsissima verba (ip-sis-d-ma var-b<l). [Latin "the
very (same) words"] (1807) The exact words used by
somebody being quoted <on its face, the ipsissima verba
ofthe statute supports the plaintiff's position on the
ownership issue>.
ipso facto (ip-soh fak-toh). [Latin "by the fact itself"]
(16c) By the very nature of the situation <if 25% of all
contractual litigation is caused by faulty drafting, then,
ipso facto, the profession needs to improve its drafting
skills>.
ipso facto clause. Bankruptcy. A contract clause that
specifies the consequences of a party's bankruptcy.
The Bankruptcy Code prohibits enforcement of such
clauses. -Also termed bankruptcy clause. [Cases:
Bankruptcy ~-')3109.]
ipso jure (ip-soh joor-ee). [Latin "by the law itself"]
By the operation ofthe law itself <despite the parties'
actions, the property will revert to the state, ipso jure,
on May 1>.
i ipsum corpus (ip-sdm kor-p.)s). [Latin] Roman law.
The thing itself. -The phrase typically referred to a
specific item that had to be delivered to a purchaser
or legatee.
IRA (I-ahr-ay or I-fd). abbr. INDIVIDUAL RETIREMENT
ACCOUNT.
IRAe (I-rak). A mnemonic acronym used mostly by
law students and their writing instructors, esp. as a
method of answering essay questions on law exams.
The acronym is commonly said to stand for either (1)
issue, rule, application, conclusion, or (2) issue, rule,
analysis, conclusion.
ira motus (I-rd moh-t<'ls), adj. [Latin] Moved or excited
by anger or passion. -'This term was formerly used in
the plea ofson assault demesne.
IRe. abbr. INTERNAL REVENUE CODE.
IRD. See income in respect ofa decedent under INCOME.
ire ad largum (I-ree ad lahr-g<lm), vb. [Latin] To go at
large; Le., to be released from judicial restraint.
iron-safe clause. A provision in a fire-insurance policy
requiring the insured to preserve the books and
IRR 906
inventory records of a business in a fireproof safe.
[Cases: Insurance G-'-::> 3054.]
IRR. See internal rate ofreturn under RATE OF RETURN.
irrational, adj. Not guided by reason or by a fair con
sideration ofthe facts <an irrational ruling>. See ARBI
TRARY.
irrebuttable presumption. See conclusive presumption
under PRESUMPTION.
irreconcilable differences. (1975) Persistent and unre
solvable disagreements between spouses, leading to
the breakdown ofthe marriage. -These differences
may be cited -without specifics -as grounds for
no-fault divorce. At least 33 states have provided that
irreconcilable differences are a basis for divorce. Cf.
IRRETRIEVABLE BREAKDOWN OF THE MARRIAGE;
INCOMPATIBILITY. [Cases: Divorce
irrecusable, adj. (18c) (Ofan obligation) that cannot be
avoided, although made without one's consent, such
as the obligation to not strike another without some
lawful excuse. Cf. RECUSABLE (1).
irredeemable bond. See annuity bond under BOND (3).
irredeemable grouud rent. See ground rent (2) under
RENT (1).
irrefragable (i-ref-ro:l-go:l-b<JI), adj. (16c) Unanswer
able; not to be controverted; impossible to refute <the
defense feebly responded to the prosecution's irrefra
gable arguments>.
irregular, adj. (14c) Not in accordance with law, method,
or usage; not regular.
irregular heir. See HEIR.
irregular indorsement. See INDORSEMENT.
irregularity. (14c) 1. Something irregular; esp., an act
or practice that varies from the normal conduct of
an action. 2. Eccles. law. An impediment to clerical
office.
irregular judgment. See JUDGMENT.
irregular process. See PROCESS.
irregular succession. See SUCCESSION (2).
irrelevance, n. (1847) 1. The quality or state of being
inapplicable to a matter under consideration. - Also
termed irrelevancy. [Cases: Criminal Law C=>338(l);
Evidence C=>99.] 2. IRRELEVANCY (1).
irrelevancy, n. 1. Something not relevant. -Also termed
irrelevance. [Cases: Criminal Law C=>338(1); Evidence
(;::>99.] 2. IRRELEVANCE (1).
irrelevant (i-rel-;}-v,mt), adj. (16c) I. (Of evidence) having
no probative value; not tending to prove or disprove a
matter in issue. -Also termed impertinent. Cf. IMMA
TERIAL. [Cases: Criminal LawC=>338(1); Evidence
99.] 2. (Of a pleaded allegation) having no substantial
relation to the action, and will not affect the court's
decision. -irrelevance, n.
irrelevant evidence. See EVIDENCE. irremediable breakdown of the marriage. See IRRE
TRIEVABLE BREAKDOWN OF THE MARRIAGE.
irreparable damages. See DAMAGES.
irreparable harm. See irreparable injury under INJURY.
irreparable injury. See INJURY.
irreparable-injury rule (i-rep-<J-r<J-bal). (1969) The
principle that equitable relief (such as an injunction) is
available only when no adequate legal remedy (such as
monetary damages) exists. _ Although courts continue
to cite this rule, they do not usu. follow it literally in
practice. -Also termed adequacy test. [Cases: Injunc
tion G----::, 14, 138.6.]
"The irreparable injury rule has received considerable schol
arly attention. In 1978. Owen Fiss examined the possible
reasons for the rule and found them wanting, A vigorous
debate over the economic wisdom of applying the rule to
specific performance of contracts began about the same
time, and soon came to center on the transaction costs of
administering the two remedies. Both Fiss and Dan Dobbs
have noted that the rule does not seem to be taken very
seriously. and in a review of Fiss's book, I argued that the
definition of adequacy pulls most of the rule's teeth. The
Restatement (Second) of Torts dropped the rule from the
blackletter and condemned it as misleading, but replaced
it only with a long and unstructured list of factors to be
considered. , . , [Mlany sophisticated lawyers believe that
the rule continues to reflect a serious preference for legal
over equitable remedies." Douglas Laycock, The Death of
the Irreparable Injury Rule 9 (1991).
irrepleviable (i-ro:l-plev-ee-o:l-bo:ll), adj. (Ofproperty) not
capable of being repleVied. Formerly also spelled
irreplevisable. Cf. REPLEVIABLE.
irresistible force. See FORCE.
irresistible-impulse test. (1892) Criminal law. A test
for insanity, holding that a person is not criminally
responsible for an act ifmental disease prevented that
person from controlling potentially criminal conduct.
-The few jurisdictions that have adopted this test have
combined it with the McNaghten rules. Also termed
control test; volitional test. See INSANITY DEFENSE;
MCNAGHTEN RULES. [Cases: Criminal LawC::)50.]
"The first reaction of the legal profession to the irresistible
impulse defense, when it was introduced to the law many
years ago, was inclined to be favorable. Then a change
set in and for many years the prevailing view was strongly
against its recognition. Present indications are that the tide
is changing again. There seems to be a growing belief to
the effect that ignoring the possibility of such a defense
fails to give full recognition to the fundamental concept of
mens rea." Rollin M. Perkins & Ronald N. Boyce, Criminal
Law975 (3d ed. 1982).
irresistible superhuman cause. See ACT OF GOD.
irresistible violence. Archaic. See VIS MAJOR.
irretrievable breakdown ofthe marriage. (1973) Family
law. A ground for divorce that is based on incompat
ibility between marriage partners and in many states
is the sole ground for no-fault divorce. -Also termed
irretrievable breakdown; irremediable breakdown ofthe
marriage; irremediable breakdown. Cf. IRRECONCIL
ABLE DIFFERENCES; INCOMPATIBILITY. [Cases: Divorce
C=>12.J
irrevocable (i-rev-a-b-bal), adj. (14c) Unalterable; com
mitted beyond recall. -irrevocability, n.
irrevocable guaranty. See GUARANTY.
irrevocable letter ofcredit. See LETTER OF CREDIT.
irrevocable offer. See OFFER.
irrevocable power ofattorney. See POWER OF ATTOR
NEY.
irrevocable trust. See TRUST.
irrigation district. Water law. A quasi-political subdi
vision or agency established to develop, preserve, and
conserve water for the benefit and use of the district's
residents. [Cases: Waters and Water Courses (.'='223.]
irritancy, n. Civil law. The action of rendering void or
the state of being rendered void.
irritant, adj. Civil law. Rendering void.
irritant clause. Civil law. A deed term providing that
if the deed's holder performs an act specifically pro
hibited by the deed, the act or deed is automatically
nullified.
irrogare (i-ra-gair-ee), vb. [Latin] Civil law. To inflict a
penalty; to make or ordain, as a law.
irrotulatio (i-rah-cha-Iay-shee-oh). [Law Latin) An
enrollment; an entry on a record.
IRS. abbr. INTERNAL REVENUE SERVICE.
IRV. See instant-runoff voting under VOTING.
ISCGS. abbr. INTERNATIONAL SCHEDULE OF CLASSES OF
GOODS AND SERVICES.
ish. Scots law. 1. An exit. _ This appears in the phrase
"ish and entry," often used in a lease, license, etc., to
give someone the right to use necessary ways and
passages to pass through another's property, esp. to
reach a church or marketplace. 2. The expiration ofa
lease, license, etc.; the end ofa period oftime.
island. (bef. 12c) A tract ofland surrounded by water but
smaller than a continent; esp., land that is continually
surrounded by water and not submerged except during
abnormal circumstances.
ISO. abbr. 1. Incentive stock option. See STOCK OPTION
(2). 2. INSURANCE SERVICES OFFICE.
isolated sale. See SALE.
isolating, n. Family law. A parent's or caregiver's pattern
of cutting a child off from normal social experiences,
preventing the child from forming friendships, or
making the child believe that he or she is alone in the
world. Cf. IGNORING; REJECTING.
ISP. abbr. INTERNET SERVICE PROVIDER.
is qui cognoscit (is kWI cog-nos-it). [Latin "he who rec
ognizes") The cognizor in a fine. See COGNIZOR; FINE
(1).
is qui cognoscitur (is kWl cog-nos-a-tar). [Latin "he who
is recognized"] A cognizee in a fine. See COGNIZEE;
FINE (1).
is qui omnino desipit (is kWI om-l1I-noh dee-sip-it).
[Latin] Hist. One who is completely void of reason. The phrase appeared in reference to an insane person,
not an idiot.
issuable, adj. 1. Capable of being issued <an issuable
writ>. 2. Open to dispute or |
.
issuable, adj. 1. Capable of being issued <an issuable
writ>. 2. Open to dispute or contention <an issuable
argument>. 3. Possible as an outcome <an award as
high as $5 million is issuable in this case>.
issuable defense. See DEFENSE (1).
issuable plea. See PLEA (3).
issue, n. (16c) 1. A point in dispute between two or more
parties. -In an appeal, an issue may take the form ofa
separate and discrete question oflaw or fact, or a com
bination ofboth.
"In federal civil procedure, an issue is a single, certain,
and material point arising out of the allegations and con
tentions of the parties; it is matter affirmed on one side
and denied on the other, and when a fact is alleged in the
complaint and denied in the answer, the matter is then
put in issue between the parties." 3SA CJ.S. Federal Civil
Procedure 357, at 541 (1960).
collateral issue. (l8c) A question or issue not directly
connected with the matter in dispute. [Cases:
Criminal Law (;::338(1); Evidence G="99; Witnesses
~'='405.1
deep issue. (1944) The fundamental issue to be decided
by a court in ruling on a point oflaw . A deep issue is
usu. briefly phrased in separate sentences, with facts
interwoven (in chronological order) to show precisely
what problem is to be addressed. Cf. surface issue.
"Essentially, a deep issue is the ultimate, concrete question
that a court needs to answer to decide a point your way.
Deep refers to the deep structure of the case -not to
deep thinking. The deep issue is the final question you
pose when you can no longer usefully ask the follow-up
question, 'And what does that turn on?'" Bryan A. Garner,
The Winning Brief 56 (2d ed. 2004).
fact issue. See issue offact.
general issue. (16c) 1. A plea (often a general denial) by
which a party denies the truth ofevery material alle
gation in an opposing party's pleading. 2. The issue
arising from such a plea. [Cases: Pleading 15.]
"The general issue is a denial of the legal conclusion sought
to be drawn from the declaration. It denies by a general
form of expression the defendant's liability, and enables
the defendant to contest, without specific averments of the
defense to be asserted, most of the allegations which the
plaintiff may be required to prove to sustain his action, and
in some actions to raise also various affirmative defenses.
It fails to perform the functions of pleading, either in giving
notice or in reducing the case to specific issues." Benjamin
J. Shipman, Handbook of Common Law Pleading 169, at
304 (Henry Winthrop Ballantine ed., 3d ed. 1923).
immaterial issue. (l8c) An issue not necessary to
decide the point oflaw. Cf. material issue.
informal issue. Rare. An issue that arises when a defen
dant does not properly or fully plead in answer to a
material allegation.
issue offact. (17e) A point supported by one party's
evidence and controverted by another's. -Also
termed fact issue.
908 issue
issue oflaw. (18c) A point on which the evidence is
undisputed, the outcome depending on the court's
interpretation ofthe law. Also termed legal issue.
legal issue. (17c) 1. A legal question, usu. at the foun
dation of a case and requiring a court's decision. 2.
See issue oflaw.
material issue. An issue that must be decided in order
to resolve a controversy. -The existence ofa material
issue ofdisputed fact precludes summary judgment.
Cf. immaterial issue. [Cases: Federal Civil Procedure
C=>2470.1; Judgment (;='181(2).]
multifarious issue. An issue that inquires about several
different points (esp. facts) when each one should be
inquired about in a separate issue.
special issue. (l7c) 1. At common law, an issue arising
from a specific allegation in a pleading. -Special
issues are no longer used in most jurisdictions. 2. See
special interrogatory under INTERROGATORY.
surface issue. A superficially stated issue phrased in a
single sentence, without many facts, and usu. begin
ning with the word whether. Cf. deep issue.
ultimate issue. (17c) A not-yet-decided point that is
sufficient either in itself or in connection with other
pOints to resolve the entire case. Also termed
ultimate question.
2. A class or series ofsecurities that are Simultaneously
offered for sale. Also termed bond issue; stock issue.
See OFFERING.
hot issue. A security that, after an initial or secondary
offering, is traded in the open market at a substan
tially higher price. Also termed hot stock.
new issue. A stock or bond sold by a corporation for the
first time, often to raise working capital. See BLUE-SKY
LAW.
original issue. The first issue ofsecurities ofa particu
lar type or series.
shelfissue. An issue of securities that were previously
registered but not released at the time of registra
tion.
3. Wills & estates. Lineal descendants; offspring.
issue female. 1. Female descendants. 2. A female whose
descent from a specified ancestor is traceable through
the direct female line. See tail female under TAIL.
[Cases: Wills .
issue male. 1. Male descendants. 2. A male whose
descent from a specified ancestor is traceable through
the direct male line. See tail male under TAIL. [Cases:
Wills
lawful issue. (16c) Descendants, including descendants
more remote than children. -At common law, the
term included only those who were children oflegally
recognized subsisting marriages. See DESCENDANT;
HEIR. [Cases: Descent and Distribution
4. Commercial law. The first delivery of a negotiable
instrument by its maker or holder. issue, vb. (l4c) 1. To accrue <rents issuing from land>
2. To be put forth officially <without probable cause,
the search warrant will not issue> 3. To send out or
distribute officially <issue process> <issue stock>.
issuance, n.
issued stock. See STOCK.
issue estoppel. See COLLATERAL ESTOPPEL.
issue fee. Patents. The charge that an inventor must pay
the U.S. Patent and Trademark Office before an allowed
patent application can be issued as a patent. [Cases:
Patents C""'" 103.]
issue pleading. See PLEADING (2).
issue preclusion. See COLLATERAL ESTOPPEL.
issuer. 1. A person or entity (such as a corporation or
bank) that issues securities, negotiable instruments,
or letters ofcredit. 2. A bailee that issues negotiable or
nonnegotiable documents oftitle.
nonreporting issuer. An issuer not subject to the report
ing requirements of the Exchange Act because it (1)
has not voluntarily become subject to the reporting
requirements, (2) has not had an effective registra
tion statement under the Securities Act within the
fiscal year, and (3) did not, at the end ofits last fiscal
year, meet the shareholder or asset tests under the
Exchange Act registration requirements.
issue roll. Hist. English law. A court record on which the
issues in contested matters are briefly noted. -lbis
practice was abolished in 1834. See INCIPITUR.
ITA. abbr. INTERNATIONAL TRADE ADMINISTRATION.
ita lex scripta est (I-t;::l leks skrip-t;::l est). [Latin] So the
law is written. -This expression means that the law
must be obeyed despite the apparent rigor ofits applica
tion. The idea is that we must be content with the law as
it stands, without inquiring into its reasons. -Some
times shortened to ita scripta est ["so it is written"].
"If practice be the whole he is taught, practice must also
be the whole he will ever know: if he be uninstructed in the
elements and first principles upon which the rule of practice
is founded, the least variation from established precedents
will totally distract and bewilder him: ita lex scripta est is
the utmost his knowledge will arrive at; he must never
aspire to form, and seldom expect to comprehend, any
arguments drawn a priori, from the spirit of the laws and
the natural foundations of justice." 1 William Blackstone,
Commentaries on the Laws of England 32 (1765).
ita te Deus adjuvet (H;::I tee dee-ds aj-d-vet). [Latin] So
help you God. -An old form ofadministering an oath
in England, usu. in connection with other words, such
as: Ita Ie Deus adjuvet, et sacrosancta Dei Evangelia ("So
help you God, and God's holy gospels"), and Ita te Deus
adjuvet et omnes saneti ("So help you God and all the
saints").
ITC. See investment tax credit under TAX CREDIT.
item. (l6c) 1. A piece ofa whole, not necessarily sepa
rated. 2. Commercial law. A negotiable instrument or
a promise or order to pay money handled by a bank
for collection or payment. -The term does not include
a payment order governed by division 11 of the VCC
909
or a credit-or debit-card slip. VCC 4-104(a)(9). [Cases:
Banks and Banking ~137, 158-168.]
par item. An item that a drawee bank will remit to
another bank without charge.
line item. Accounting. In a financial statement, a single
entry or notation to which a particular dollar amount
is attached.
3. In drafting, a subpart of text that is the next smaller
unit than a subparagraph . In federal drafting, for
example, "(4)" is the item in the following citation: Rule
19(a){l)(B)(4). Also termed (in sense 3) clause.
itemize, vb. To list in detail; to state by items <an
itemized bill>.
itemized deduction. See DEDUCTION.
item veto. See line-item veto under VETO.
iter (I-ti"lr or it-i"Ir), n. [Latin] 1. Roman law. A rural ser
vitude that allowed the holder to walk or ride on horse
back (but not drive a draft animal) through another's
land. -Also termed servitus itineris (sar-vi-tas I-tin
ar-is). Cf. ACTUS (3); VIA (2).2. Hist. A journey; esp., a
circuit made by an eyre justice. See EYRE. IVF
itinerant vendor. See VENDOR.
itinerate (I-tin-i"I-rayt), vb. (Of a judge) to travel on a
circuit for the purpose ofholding court. See CIRCUIT.
itineration, n. itinerant, adj. & n.
ITS. abbr. Institute for Telecommunication Sciences. See
NATIONAL TELECOMMUNICATIONS AND IKFORMATION
ADMINISTRATION.
iudex (yoo-deks). [Latin] See JUDEX.
iudicum reiectio. See jUDICUM REjECTIO.
iudicum sortitio. See JUDICUM SORTITIO.
iudicum subsortitio. See jUDlCUM SUBSORTITlO.
ius (yas aryoos). [Latin "law, right"] See JUS.
ius praetorium. See LEX PRAETORIlJM.
ius primae noctis. See MARCHETUM.
ius provocationis. See JUS PROVOCATIONIS.
iustae nuptiae. See JUSTAE NUPTIAE.
IVA. abbr. See INDIVIDUAL VOLUNTARY ARRANGE
MENT.
IVF. abbr. IN VITRO FERTILIZATION.
J
J. abbr. 1. JUDGE. 2. JUSTICE (2).3. JUDGMENT. 4. JUS. 5.
JOURNAL.
JA. abbr. 1. JUDGE ADVOCATE. 2. See joint account under
ACCOUNT.
Jac. abbr. Jacobus the Latin form of the name James,
used principally in citing statutes enacted during the
reigns of English kings of that name (e.g., "St. 1, Jac.
2").
jacens (jay-senz). [Latin) Lying; fallen; in abeyance. See
hereditas jacens under HEREDITAS.
jackpot justice. Slang. The awarding of enormous and
apparently arbitrary damages to plaintiffs, thereby
making the plaintiffs wealthy and encouraging others
to file lawsuits seeking excessive damages for even
minor actual harm.
Jackson-Denno hearing. (1965) A court proceeding,
held outside the jury's presence to determine whether
the defendant's confession was voluntary and therefore
admissible as evidence. Jackson v. Denno, 378 U.S. 368,
84 S.Ct. 1774 (1964). -Also termed Jackson v. Denno
hearing. [Cases: Criminal Law 0531, 532.]
Jackson standard. (1980) Criminal law. The principle that
the standard of review on appeal when a criminal
defendant claims that there is insufficient evidence to
support the conviction -is to determine whether, after
considering the evidence in the light most favorable to
the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a
reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99
S.Ct. 2781 (1979). [Cases: Criminal LawC=' 1144.13(3),
1159.2(7).]
Jackson v. Denno hearing. See JACKSON-DENNO HEAR
ING.
Jacob Wetterling Crimes Against Children and
Sexually Violent Offender Registration Act. A 1989
federal statute requiring each state to create a sex
offender registry of sexually violent offenders, par
ticularly those who have been convicted of sex crimes
again |
a sex
offender registry of sexually violent offenders, par
ticularly those who have been convicted of sex crimes
against minors, and to disclose information about
registered sex offenders for public-safety purposes.
'Ihe Act mandates a minimum registration period of
10 years, beginning on the offender's date of release
from custody or supervision. It was amended in 1996 by
Megan's Law, which added the disclosure requirement.
See 42 USCA 14071. The Act was named for ll-year
old Jacob Wetterling of Minnesota, who was abducted
by a stranger in 1989. During the immediate search for
Jacob, law-enforcement officers discovered that many
of the county's halfway houses sheltered sex offenders
from another county. Jacob was never found. -Often
shortened to Jacob Wetterling Act or Wetterling Act. Cf.
MEGAN'S LAW. [Cases: Mental Health 0469.1 jactitation (jak-ti-tay-sh,m). (17c) 1. A false boasting or
claim that causes injury to another. [Cases: Libel and
Slander 140.] 2. Civil law. SLANDER OF TITLE.
jactitation of marriage. Rist. 1. False and actionable
boasting or claiming that one is married to another. 2.
An action against a person who falsely boasts ofbeing
married to the complainant.
"Jactitation of marriage is a cause of action which arises
when a person falsely alleges that he or she is married
to the petitioner, and the remedy sought is a perpetual
injunction against the respondent to cease making such
allegations. The cause is now uncommon in English munici
pal law and almost unknown in the conflict of laws." R.H.
Graveson, Conflict ofLaws 349 (7th ed. 1974).
jactitation of title. See SLANDER OF TITLE.
jactura (jak-t[yJoor-J), n. [Latin] Civil law. 1. A throwing
ofgoods overboard to lighten or save a vessel; JETTISON.
2. A loss incurred from this; general average. See general
average under AVERAGE. -Also termed jactus.
jactus lapilli (jak-tas la-pit-I). [Latin "the throwing down
of a stone"] Roman law. A landowner's thrOWing of a
small stone onto a neighbor's land to symbolically
protest construction that could threaten the thrower's
interest. Cf. NOVI OPERIS NUNTIATIO.
jactus mercium navis levandae causa (jak-tas mar
shee-am nay-vis la-van-dee kaw-z<l). [Latin "the
throwing of goods into the sea for the purpose of
lightening the ship"] Roman law. JETTISON. See I.EX
RHODIA.
jactus reUs (jak-tJs ree-tis). [Latin] Roman law. The
casting ofa net in the context ofemptio spei. See emptio
spei under EMPTIO.
JAG. abbr. JUDGE ADVOCATE GENERAL.
JAG Department. See JUDGE ADVOCATE GENERAL'S
DEPARTMENT.
JAG Manual. See MANUAL OF THE JUDGE ADVOCATE
GENERAL.
jail, n. (l3c) A local government's detention center where
persons awaiting trial or those convicted of misde
meanors are confined. -Also spelled (esp. in BrE)
gaol. -Also termed holding cell; lockup; jailhouse;
house ofdetention; community correctional center. Cf.
PRISON. [Cases: Prisons 0213.] -jail, vb.
jail credit. (I950) Time spent by a criminal defendant in
confinement while awaiting trial. This time is usu.
deducted from the defendant's final sentence (if con
victed). -Also termed jail-credit time. [Cases: Sentenc
ing and Punishment 01158.J
jail delivery. 1. An escape by several prisoners from a
jail. 2. Archaic. A clearing procedure by which all pris
oners at a given jail are tried for the offenses that they
are accused ofhaving committed.
911
general jail delivery. Collectively, acquittals in high
numbers as a result ofeither lax or reckless adminis
tration of the law or defects in the law.
3. Archaic. 1be commission issued to judges of assize,
directing them to clear a jail by trying -and either
acquitting or condemning -all the inmates. 4.
Archaic. The court charged with the trial ofall ordinary
criminal cases. -Also written gaol delivery. See COM
MISSION OF GAOL DELIVERY.
jailer. A keeper, guard, or warden ofa prison or jail.
Also spelled (esp. in BrE) gaoler. [Cases: Prisons
390.]
jailhouse. See JAIL.
jailhouse lawyer. A prison inmate who seeks release
through legal procedures or who gives legal advice to
other inmates. Also termed guardhouse lawyer.
jail liberties. Bounds within which a jailor prison lies
and throughout which certain prisoners are allowed
to move freely, usu. after giving bond for the liber
ties. The bounds are considered an extension of the
prison walls. Historically, jail liberties were given in
England to those imprisoned for debt. The prisoners
were allowed to move freely within the city in which
the prison was located. -Also spelled (esp. in BrE) gaol
liberties. -Also termed jail limits. See BOUND (2).
"[Sltatutes were from time to time passed enlarging the
gaol liberties, in order to mitigate the hardships of impris
onment: thus, the whole City of Boston was held the 'gaol
liberties' of its county gaol. And so with a large part of New
York City .... The prisoner, while within the limits, is con
sidered as within the walls of the prison." 1 John Bouvier,
Bouvier's Law Dictionary 1333-34 (8th ed. 1914).
jail mail. Slang. Correspondence sent by or to an incar
cerated person . It is often screened by prison per
sonnel.
Jamaican switch. An illegal scheme whereby one con
spirator convinces the victim of a need for help in
handling a large sum of money, usu. by claiming to
have found the money or by claiming to be an unso
phisticated foreigner, and promises to share part ofthe
money with the victim or asks the victim for help in
finding a suitable charity to donate to, at which time
the other conspirator appears and promises to assist
ifboth the victim and first conspirator provide good
faith money, the intent being for the two conspirators
to leave with all the money, including the victim's .
The name given to this scheme is likely to be considered
offensive by some. Also termed pigeon drop. [Cases:
False Pretenses (;::::> 16.]
James hearing. (1981) A court proceeding held to deter
mine whether the out-of-court statements of a cocon
spirator sbould be admitted into evidence, by analyzing
whether there was a conspiracy, whether the declarant
and the defendant were part of the conspiracy, and
whether the statement was made in furtherance of the
conspiracy. United States v. James, 590 F.2d 575 (5th
Cir. 1979); Fed. R. Evid. 80l(d)(2)(E). [Cases: Criminal
Law (;::::>427.] Jencks material
Jane Doe. A fictitious name for a female party to a legal
proceeding, used because the party's true identity is
unknown or because her real name is being withheld.
Also termed Jane Roe; Mary ",v[ajor. Cf. JOHN DOE.
[Cases: Federal Civil Procedure <::=' 101; Parties
73.]
Janus-faced (jay-n<Js fayst), adj. (17c) Having two con
trasting or contradictory aspects; two-faced <a Janus
faced plea>.
Jason clause. Alaritime law. A bill-of-Iading clause
requiring contribution in general average even when
the peril that justified the sacrifice was the result ofthe
carrier's negligence, for which the carrier is otherwise
exempt from liability by statute . The clause is named
after the Supreme Court case that upheld its enforce
ability, The Jason, 225 U.S. 32, 32 S.Ct. 560 (1912). See
general average under AVERAGE. [Cases: Shipping
189.]
jaywalking, n. (1919) The act or instance of crossing a
street without heeding traffic regulations, as by crossing
between intersections or at a place other than a cross
walk.[Cases: Automobiles (;::::>217; Municipal Corpora
tions (;::::>707.) jaywalk, vb.
JCP. abbr. Justice of the Common Pleas. See COURT OF
COMMON PLEAS.
J.D. abbr. JURIS DOCTOR.
Jedburgh justice (jed-b;}r-<J). See JUSTICE (1).
Jeddart justice (jed-<Jrt). See Jedburgh justice under
JUSTICE (1).
jedge and warrant (jej). Scots law. The authority formerly
given by the Dean of Guild of a burgh to rebuild or
repair a dilapidated house or tenement.
Jedwood justice (jed-wdd). See Jedburgh justice under
JUSTICE (1).
Jencks material. (1961) Criminal procedure. A prosecu
tion witness's written or recorded pretrial statement
that a criminal defendant, upon filing a motion after
the witness has testified, is entitled to have in prepar
ing to cross-examine the witness . The defense may
use a statement ofthis kind for impeachment purposes.
Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007 (1957);
Jencks Act, 18 USCA 3500. Cf. BRADY MATERIAL.
[Cases: Criminal Law (;::::>627.7.]
reverse Jencks material. Criminal procedure. A defense
witness's written or recorded pretrial statement that
a prosecutor is entitled to have in preparing to cross
examine the witness. -Reverse Jencks material may
be obtained during pretrial discovery. Discoverable
statements include a witness's Signed or adopted
written statement, and transcripts or recordings of
the witness's oral statements, including grand-jury
testimony. United States v. Nobles, 422 U.S. 225,
231-34,95 S. Ct. 2160, 2166-68 (1975); Fed. R. Crim.
P. 26.2. -Also termed reverse Jencks; reverse discov
ery; reciprocal discovery. [Cases: Criminal Law
627.7(2).]
912 Jensen doctrine
Jensen doctrine. Maritime law. The principle that a
state statute may not apply in a maritime case ifto do
so would "work material prejudice to the character
istic features of the general maritime law or interfere
with the proper harmony and uniformity of that law."
Southern Pac. Co. v. Jensen, 244 U.S. 205,37 S.Ct. 524
(1917). [Cases: Workers' Compensation (;:::>262.]
jeofail Oef-ayl), n. [fro French j'ay faille] Archaic. 1. A
pleading error or oversight that results in a misjoined
issue and requires a repleader. 2. The acknowledgment
ofsuch an error. -Also spelled jeo/aile.
jeopardy. (14c) The risk of conviction and punishment
that a criminal defendant faces at triaL. Jeopardy
attaches in a jury trial when the jury is empaneled, and
in a bench trial when the first witness is sworn. -Also
termed legal jeopardy. See DOUBLE JEOPARDY. [Cases:
Double JeopardyC::>59.]
jeopardy assessment. See ASSESSMENT.
Jepson claim. See PATENT CLAIM.
jerk note. Hist. Maritime law. A permit, issued by a
customs collector to the ship's master, authorizing the
master to receive cargo for an outbound voyage.
jetsam (jet-sdm). (16c) The portion of a ship's cargo
and equipment that is (1) thrown overboard in an
effort to save the ship from a perilous condition, and
that (2) either sinks beneath the surface or is washed
ashore. Also termed jettison. Cf. FLOTSAM; LAGAN
(1); WAVESON.
jettison (jet-d-s;m), n. (15c) Maritime law. l. The act of
voluntarily throwing cargo overboard to lighten or
stabilize a ship that is in immediate danger. Also
termed eqUitable jettison; jactura; jactus mercium navis
levandae causa. See general average under AVERAGE. 2.
JETSAM. jettison, vb.
"The goods must not be swept away by the violence of the
waves, for then the loss falls entirely upon the merchant or
his insurer, but they must be intentionally sacrificed by the
mind and agency of man, for the safety of the ship and the
residue of the cargo. The jettison must be made for suf
fieient cause, and not from groundless timidity. It must be
made in a case of extremity, when the ship is in danger of
perishing by the fury of a storm, or is laboring upon rocks
or shallows, or is closely pursued by pirates or enemies;
and then if the ship and the residue of the cargo be saved
by means of the sacrifice, nothing can be more reasonable
than that the property saved should bear its proportion of
the loss," 3 James Kent, Commentaries on American Law
*232-33 (George Comstock ed., 11 th ed. 1866).
jeux de bourse (zhoo dd bars), n. [French "games of the
stock exchange"] Speculation in stocks or bonds, as by
dealing in options or futures.
Jewell instruction (joo-wdl). (1977 |
onds, as by
dealing in options or futures.
Jewell instruction (joo-wdl). (1977) Criminal procedure.
A court's instruction to the jury that the defendant can
be found to have the requisite criminal mental state
despite being deliberately ignorant ofsome ofthe facts
surrounding the crime . If a defendant claims igno
rance of some fact essential to the crime, such as not
knowing that a particular bag contained drugs, but
the surrounding circumstances would put a reason
able person on notice that there was a high probability of illegality, as when the defendant has taken the bag
from a known drug-dealer and has noticed the smell
ofmarijuana coming from the bag, then the court may
instruct the jury that it is entitled to infer the defen
dant's guilty knowledge if the defendant deliberately
avoided knowledge of the critical facts. United States
v. Jewell, 532 F.2d 697 (9th Cir. 1976). Also termed
deliberate-indifference instruction. Cf. ostrich instruc
tion under JURY INSTRUCTION. [Cases: Criminal Law
(;:::>772(5).]
Jim Crow law. (1891) Hist. A law enacted or purposely
interpreted to discriminate against blacks, such as a
law requiring separate restrooms for blacks and whites.
Jim Crow laws are unconstitutional under the 14th
Amendment.
jingle rule. See DUAL-PRIORITIES RULE.
JJ. abbr. 1. Judges. 2. Justices.
J.N. abbr. JOHN-A-NOKES.
JNOV. abbr. Judgment non obstante veredicto.
See judgment notwithstanding the verdict under
JUDGMENT.
job action. Labor law. A concerted, temporary action
by employees (such as a sickout or work slowdown),
intended to pressure management to concede to the
employees' demands without resorting to a strike. See
STRIKE (1).
jobber, n. (17c) 1. One who buys from a manufacturer
and sells to a retailer; a wholesaler or middleman. 2.
A middleman in the exchange of securities among
brokers. -Also termed stockjobber; stock-jobber. 3.
One who works by the job; a contractor. -job, vb.
jobber's agreement. See HAZANTOWN AGREEMENT.
jobbery, n. (1837) lhe practice or act of perverting a
public service in a way that serves private ends; unfair
means to serve private interests.
job security. Protection of an employee's job, often
through a union contract.
job-targeting program. An initiative by a labor union to
maintain or improve its share ofthe labor in a particu
lar market by financing or backing contractors who bid
on targeted projects. Also termed market-recovery
program.
jocus partitus (joh-bs pahr-tI-tds), n. [Law Latin
"divided game"] Rist. A gambling arrangement made
by the parties on a lawsuit's outcome.
John-a-Nokes. Archaic. A fictitious name for an
unknown party to a legal proceeding, esp. the first
party. lhe name is short for "John who dwells at the
oak." Abbr. J.N. -Also spelled John-a-Noakes.
John-a-Stiles. Archaic. A fictitious name for an unknown
party to a legal proceeding, esp. the second party . The
name is short for "John who dwells at the stile." Abbr.
J.S. -Also spelled John-a-Styles.
John Doe. A fictitious name used in a legal proceeding
to designate a person whose identity is unknown, to
protect a person's known identity, or to indicate that a
913 jOint administration
true defendant does not exist. -In England, "William
Styles" was also used. Cf. JANE DOE; RICHARD ROE.
[Cases: Federal Civil Procedure 101; Parties
67,73.]
"Sheriffs in time growing remiss in their duty, allowed of
any persons as pledges, sometimes returning the names
of fictitious persons as pledges, at others, neglecting to
require or return any at all. ... And the legislature, to supply
the want of real persons as pledges, and recompense the
defendant where he has been unjustly or vexatiously sued,
has by various statutes, either given him the costs he has
incurred in making his defence; or else deprived the plain
tiff of recovering those costs he is entitled to by law, in
cases of obtaining a verdict, by leaving it to the judge at the
trial to certify on the record, that he had little or no cause
of action. Since these statutes for allowing the defendant
his costs, where the plaintiff fails, or is nonsuited, the writ
to the coroner to affeer the pledges has fallen into disuse,
and two good-natured personages, john Doe and Richard
Roe, from their universal acquaintance and peculiar longev
ity, have become the ready and common pledges of every
suitor." 1 George Crompton, Rules and Cases of Practice
in the Courts of King's Bench and Common Pleas xlvii (3d
ed, 1787).
'The fictitious names john Doe and Richard Roe regularly
appeared in actions of ejectment ... at common law.
Doe was the nominal plaintiff, who by a fiction was said
to have entered land under a valid lease; Roe was said
to have ejected Doe, and the lawsuit took the title Doe
v. Roe. These fictional allegations disappeared upon the
enactment of the Common Law Procedure Act of 1852....
Beyond actions of ejectment, and esp. in the U.S., john
Doe, jane Doe, Richard Roe, Jane Roe, and Peter Poe have
come to identify a party to a lawsuit whose true name is
either unknown or purposely shielded." Bryan A, Garner, A
Dictionary ofModem Legal Usage 290-91 (2d ed. 1995).
John Doe defendant. See DEFENDANT.
John Doe summons. See SUMMONS,
John Doe warrant. See WARRANT (1).
joinder, n. (I7c) The uniting of parties or claims in a
single lawsuit. Cf. CONSOLIDATION (3). [Cases: Action
C-='39-52; Federal Civil Procedure C=>81, 201-267;
Parties C=>49.] join, vb.
collusive joinder. (1883) Joinder ofa defendant, usu. a
nonresident, in order to have a case removed to federal
court. See manufactured diversity under DIVERSITY OF
CITIZENSHIP. [Cases: Removal ofCases (;:::" 36.]
compulsory joinder. (1901) The necessary jOinder of
a party if either of the following is true: (1) in that
party's absence, those already involved in the lawsuit
cannot receive complete relief; or (2) the absent party
claims an interest in the subject of an action, so that
party's absence might either impair the protection
of that interest or leave some other party subject to
multiple or inconsistent obligations. Fed. R. Civ. P.
19(a). -Also termed mandatory joinder. [Cases:
Federal Civil Procedure (;::')201; Parties 28,]
fraudulent joinder. (1836) The bad-faith joinder of a
party, usu. a resident ofthe state, to prevent removal
of a case to federal court. [Cases: Removal of Cases
C-::>36.]
joinder in demurrer. Common-law pleading. A set in a legal issue; esp., the plaintiffs acceptance of the
defendant's issue ofIaw.
joinder in issue. See jOinder ofissue.
joinder in pleading. Common-law pleading. One party's
acceptance ofthe opposing party's proposed issue and
mode of triaL
joinder oferror. A written denial of the errors alleged
in an assignment oferrors in a criminal case.
joinder ofissue. 1. The submission ofan issue jointly for
decision. 2. The acceptance or adoption ofa disputed
point as the basis of argument in a controversy.
Also termed joinder in issue; similiter. 3. The taking
up of the opposite side of a case, or of the contrary
view on a question.
joinder ofoffenses. The charging of an accused with
two or more crimes as multiple counts in a single
indictment or information. -Unless later severed,
joined offenses are tried together at a single trial. Fed,
R. Crim, P. 8(a). [Cases: Indictment and Information
126.]
joinder ofremedies. The jOinder ofalternative claims,
such as breach of contract and quantum meruit, or
of one claim with another prospective claim, such
as a creditor's claim against a debtor to recover on a
loan and the creditor's claim against a third party to
set aside the transfer of the loan's collateral. [Cases:
Action C=>43; Federal Civil Procedure C=>81.]
mandatory joinder. See compulsory joinder.
misjoinder. See MISJOINDER.
nonjoinder. See NONJOINDER.
permissive joinder. (1903) The optional joinder of
parties if(1) their claims or the claims asserted against
them are asserted jointly, severally, or in respect ofthe
same transaction or occurrence, and (2) any legal or
factual question common to all of them will arise.
Fed. R. Civ. P. 20. [Cases: Federal Civil Procedure
241; Parties C=> 13,24.]
pretensive joinder. Joinder of defendants solely to
obtain venue in a jurisdiction in which the action
could not otherwise be tried. [Cases: Venue
22(3).]
joint, adj. (14c) 1. (Of a thing) common to or shared by
two or more persons or entities <joint bank account>.
2. (Of a person or entity) combined, united, or sharing
with another <joint heirs>.
joint account. See ACCOUNT.
joint action. See ACTION (4).
joint activity, See JOINT PARTICIPATION.
joint administration. Bankruptcy. 'The management of
two or more bankruptcy estates, usu. involVing related
debtors, under one docket for purposes of handling
various administrative matters, including notices to
creditors, to conclude the cases more efficiently. - A
bankruptcy court can order a joint administration
when there are two or more cases pending involving
form of words by which either party accepts or joins i a husband and wife, a partnership and at least one
914 joint adoption
partner, two or more business partners, or a business ! joint contract. See CO?>lTRACT.
and an affiliate. The intent should be to increase the
administrative efficiency of administering the two
cases; the substantive rights of creditors should not
ordinarily be affected. Fed. R. Bankr. P. 1015. -Also
termed procedural consolidation. See ADMINISTRA TlON
(3). Cf. substantive consolidation under CONSOLIDA
TION. [Cases; Bankruptcy
joint adoption. See ADOPTION.
joint adventure. 1. See common adventure under ADVEN
TURE. 2. See JOINT VENTURE.
joint and mutual will. See WILL.
joint and reciprocal will. See joint and mutual will
under WILL.
joint and several, adj. (I7c) (Of liability, responsibility,
etc.) apportionable at an adversary's discretion either
among two or more parties or to only one or a few select
members of the group; together and in separation. See
JOINT; SEVERAL. [Cases; Contracts 181; Torts
135.]
joint and several bond. See BOND (3).
joint and several liability. See LIABILITY.
joint and several note. See NOTE (1).
joint-and-survivorship account. See joint account under
ACCOUNT.
joint annuity. See ANNUITY.
joint authors. Copyright. Two or more authors who
collaborate in producing a copyrightable work, each
author intending to merge his or her respective con
tributions into a single work, and each being able to
exploit the work as desired while remaining account
able for a pro rata share of the profits to the coauthor or
coauthors. [Cases; Copyrights and Intellectual Property
C=>41(3).]
joint ballot. See BALLOT (2).
joint board. Labor law. A committee -usu. made up of
an equal number ofrepresentatives from management
and the union -established to conduct grievance pro
ceedings or resolve grievances.
joint bond. See BO?>lD (3).
jOint-check rule. The principle that when an owner or
general contractor issues a check that is made jointly
payable to a subcontractor and the subcontractor's
materialman supplier, the materialman's indorsement
on the check certifies that all amounts due to the mate
rialman. up to the amount ofthe check, have been paid.
This rule protects the owner or general contractor
from lien foreclosure by a materialman who was not
paid by the subcontractor. By issuing a joint check,
the owner or general contractor is not left merely to
hope that the subcontractor pays all the materialmen.
And the materialman is protected because it can refuse
to indorse the check until it is satisfied that the sub
contractor will pay it the appropriate amount. [Cases:
Mechanics' Liens C=>115(5).]
joint committee. See COMMITTEE. joint covenant. See COVENANT (1).
joint creditor. See CREDITOR.
joint custody. See CUSTODY (2).
joint debtor. See DEBTOR.
joint defendant. See CODEFENDANT.
joint-defense privilege. See PRIVILEGE (3).
joint demise. See DEMISE.
joint employment. See EMPLOYMENT.
joint enterprise. (17c) 1. Criminal law. An undertak
ing by two or more persons who set out to commit an
offense they have conspired to. See CONSPIRACY. [Cases;
Conspiracy C=>23.1.] 2. Torts. An undertaking by two
or more persons with an equal right to direct and benefit
from the endeavor, as a result of which one |
. An undertaking by two
or more persons with an equal right to direct and benefit
from the endeavor, as a result of which one partici
pant's negligence may be imputed to the others. Also
termed (in senses 1 & 2) common enterprise. [Cases:
Automobiles (;::>198(4),227.5; Negligence C=>S7S.] 3.
JOINT VENTURE. 4. A joint venture for noncommercial
purposes.[Cases: Joint Adventures
"A business relationship is needed for ajoint venture but
not for a joint enterprise. Thus, a joint enterprise may be
defined as a non-commercialjoint venture." 46 Am.Jur. 2d
Joint Ventures 6, at 27 (1994).
joint estate. See ESTATE (1).
joint executor. See EXECUTOR.
joint heir. See HEIR.
joint indictment. See INDICTMENT.
joint interest. See INTEREST (2).
joint-interest purchase. See SPLIT-INTEREST PURCHASE
OF PROPERTY.
joint inventor. Patents. A person who collaborates with
another or others in developing an invention. All
joint inventors must be identified on a patent applica
tion. [Cases: Patents ~'=>92.]
"Employing a friend, mechanic, model maker or other
person to do work for one on an idea does not, as a rule,
make him a joint inventor with the originator. One has a
right to employ someone else to do one's work. There are
conditions, however, where such person would become a
joint inventor, or even sole inventor. It is best to play safe
and consult an experienced patent lawyer, laying before
him all of the facts." Richard B. Owen, Patents, Trademarks,
Copyrights, Departmental Practice 7 (1925).
joint legal custody. See joint custody under CUSTODY
(2).
joint liability. See LIABILITY .
joint life insurance. See LIFE INSURANCE.
joint life policy. See INSURANCE POLICY.
joint managing conservatorship. See joint custody
under CuSTODY (2).
joint mortgage. See MORTGAGE.
joint negligence. See NEGLIGENCE.
joint note. See NOTE (1).
joint obligation. See OBLIGATION.
915
joint offense. See OFFENSE (1).
joint ownership. See OWNERSHIP.
joint participation. (1971) Civil-rights law. A pursuit
undertaken by a private person in concert with a gov
ernmental entity or state official, resulting in the private
person's performing public functions and thereby being
subject to claims under the civil-rights laws. Also
termed jOint activity. See SYMBIOTIC-RELATIONSHIP
TEST; NEXUS TEST. [Cases: Civil Rights C-::l1326(S).J
joint party. See COPARTY.
joint physical custody. See joint custody under CUSTODY
(2).
joint plaintiff. See COPLAINTIFF.
joint possession. See POSSESSION.
joint property. See PROPERTY.
joint rate. See RATE.
joint resolution. See RESOLUTION (1).
jointress. Hist. A woman who has a jointure. -Also
termed jointuress. See JOINTURE (1).
joint return. See TAX RETURN.
joint rule. See RULE (2).
joint session. See SESSION (1).
joint stock. See STOCK.
joint-stock association. See jOint-stock company under
COMPANY.
joint-stock company. See COMPANY.
joint tariff. See TARIFF (5).
joint tenancy. See TENANCY.
joint tenant. See joint tenancy under TENANCY.
joint tortfeasors. See TORTFEASOR.
joint trespass. See TRESPASS.
joint trial. See TRIAL.
joint trustee. See COTRUSTEE.
jointure (joyn-chdr). (ISc) 1. Archaic. A woman's freehold
life estate in land, made in consideration of marriage
in lieu of dower and to be enjoyed by her only after
her husband's death; a settlement under which a wife
receives such an estate . The four essential elements are
that (1) the jointure must take effect immediately upon
the husband's death, (2) it must be for the wife's own
life, and not for another's life or for a term ofyears, (3)
it must be held by her in her own right and not in trust
for her, and (4) it must be in lieu ofher entire dower. See
DOWER. [Cases: Dower and Curtesy C=>29, 40.]
equitable jointure. A premarital arrangement for a
woman to enjoy a jointure, accepted by the woman in
lieu ofdower. -Also termed equitable dower. [Cases:
Dower and Curtesy C::::>40.J
2. A settlement under which a wife receives such an
estate. -Also termed legal jointure. 3. An estate in
lands given jointly to a husband and wife before they
marry. See JOINTRESS. [Cases: Dower and CurtesyC:::>
40.] journal of notarial acts
jointuress. See JOINTRESS.
joint venture. (18c) A business undertaking by two or
more persons engaged in a single defined project. The
necessary elements are: (1) an express or implied agree
ment; (2) a common purpose that the group intends
to carry out; (3) shared profits and losses; and (4) each
member's equal voice in controlling the project. -Also
termed joint adventure; jOint enterprise. Cf. PARTNER
SHIP; STRATEGIC ALLIANCE; VENTURE [Cases: Joint
Adventures 1.2.]
''There is some difficulty in determining when the legal
relationship of joint venture exists, with authorities dis
agreeing as to the essential elements .... The joint venture
is not as much of an entity as is a partnership." Henry G.
Henn & John R. Alexander, Laws of Corporations 49, at
106 (3d ed. 1983).
joint-venture corporation. See CORPORATION.
joint verdict. See VERDICT.
joint welfare fund. See FUND (1).
joint will. See WILL.
joint work. See WORK (2).
joker. (1904) 1. An ambiguous clause inserted in a leg
islative bill to render it inoperative or uncertain in
some respect without arousing opposition at the time
ofpassage. 2. A rider or amendment that is extraneous
to the subject ofthe bill.
Jones Act. Maritime law. A federal statute that allows
a seaman injured during the course of employment
to recover damages for the injuries in a negligence
action against the employer . If a seaman dies from
such injuries, the seaman's personal representative may
maintain an action against the employer. 46 USCA app.
688. [Cases: Seamen C:::>29.J
Jones Act vessel. See VESSEL.
jour (zhoor), n. [French] Day <jour en bane>.
journal. (ISc) 1. A book or record kept, usu. daily, as of
the proceedings ofa legislature or the events ofa ship's
voyage. -Also termed log; logbook. See MINUTES (2).
2. Accounting. In double-entry bookkeeping, a book in
which original entries are recorded before being trans
ferred to a ledger. 3. A periodical or magazine, esp. one
published for a scholarly or professional group. -Abbr.
J.
journal entry. See ENTRY (2).
journalist's privilege. See PRIVILEGE (J).
journal of notarial acts (noh-tair-ee-dl). The notary
public's sequential record ofnotarial transactions, usu.
a bound book listing the date, time, and type of each
official act, the type of instrument acknowledged or
verified before the notary, the signature ofeach person
whose signature is notarized, the type ofinformation
used to verify the identity of parties whose signatures
are notarized, and the fee charged. 1his journal,
required by law in many states, provides a record that
mav be used as evidence in court. Also termed
not~rial record; notarial register; notary record book;
sequential journal.
916 journeys accounts
journeys accounts. Hist. The number of days (usu. 15)
after the abatement of a writ within which a new writ
could be obtained . This number was based on how
many days it took for the plaintiff to travel (or journey)
to the court.
joyriding, n. (1909) The illegal driving ofsomeone else's
automobile without permission, but with no intent
to deprive the owner of it permanently . Under the
Model Penal Code, the offender's reasonable belief
that the owner would have consented is an affirmative
defense. See Model Penal Code 223.9. -Also termed
unauthorized use ofa vehicle.[Cases: Automobiles
339.] -joyride, vb. joyrider, n.
"When the automobile began to appear and was limited to
the possession of a few of the more fortunate members of
the community, many persons who ordinarily respected
the property rights of others, yielded to the temptation to
drive one of these new contrivances without the consent of
the owner. This became so common that the term 'joyrider'
was coined to refer to the person who indulged in such
unpermitted use of another's car. For the most part it was
a relatively harmless type of trespass ...." Rollin M. Perkins
& Ronald N. Boyce, Criminal Law 333 (3d ed. 1982).
J.P. abbr. JUSTICE OF THE PEACE.
J.P. court. See justice court under COURT.
JPML. abbr. JUDICIAL PANEL ON MULTIDISTRICT LITI
GATION.
JPO. abbr. Japanese Patent Office.
J.P. Stevens test. Patents. A two-part test to determine
whether a patent-applicant's conduct amounted to
inequitable conduct before the Patent and Trademark
Office, by deciding (1) whether the threshold levels of
materiality and intent are met, and (2) whether, on
balance, the facts show inequitable conduct as a matter
oflaw. J.P. Stevens v. Lex Tex Ltd., 747 F.2d 1553 (Fed.
Cir. 1984). In the balance, information that is clearly
material or conduct that is clearly deceptive can decide
the outcome. [Cases: Patents 0=>97.J
J.S. abbr. JOHN-A-STILES.
JSc. abbr. Justice ofSupreme Court.
J.S.D. [Law Latin juris scientiae doctor] abbr. DOCTOR OF
JURIDICAL SCIENCE.
jubere Ouu-beer-ee), vb. [Latin] Civil law. L To order,
direct, or command. 2. To assure or promise.
J.U.D. [Law Latinjuris utriusque doctor "doctor ofboth
laws"] abbr. A doctor ofboth civil and canon law.
judex (joo-deks), n. [Latin] 1. Roman law. A private
person appointed by a praetor or other magistrate
to hear and decide a case . The Roman judex was
originally drawn from a panel of qualified persons of
standing but was later himself a magistrate. 2. Roman
& civil law. A judge. 3. Rist. A juror. -Also spelled
iudex. PI. judices (joo-di-seez).
judex ad quem (ad kwem). Civil law. A judge to whom
an appeal is taken.
judex a quo (ay kwoh). Civil law. A judge from whom
an appeal is taken. judex datus (day-tds). Roman law. A judex aSSigned by
a magistrate or provincial governor to try a case under
cognitio extraordinaria. See COGNITIO EXTRAORDI
NARIA.
judex delegatus (del-d-gay-tds). Roman & civil law.
A delegated judge under cognitio extraordinaria; a
special judge. See COGNITlO EXTRAORDINARIA.
judexfiscalis (fis-kay-lis). Roman law. A judex having
jurisdiction of matters relating to the fiscus. See
FISCUS (1).
judex ordinarius (or-dd-nair-ee-ds). Civil law. A judge
having jurisdiction in his own right rather than by
delegated authority . The judge was typically a pro
vincial governor.
judexpedaneus (p;l-day-nee-;ls). Roman law. A judex to
whom petty cases are delegated; an inferior or deputy
judge under cognitio extraordinaria. Also termed
judex specialis.
judex quaestionis (kwes-chee-oh-nis or kwes-tee-).
Roman law. The chairman of the jury in a criminal
case, either a praetor or a magistrate oflower rank.
judex selectus (s;llek-t;ls). Civil law. A judge selected
to hear the facts in a criminal case.
judex specialis (spesh-ee-ay-lis). Roman law. See judex
pedaneus.
judge, n. (14c) A public official appointed or elected to
hear and decide legal matters in court. The term is
sometimes held to include all officers appointed to
decide litigated questions, including a justice of the
peace and even jurors (who are judges ofthe facts). But
in ordinary legal usage, the term is limited to the sense
ofan officer who (1) is so named in his or her commis
sion, and (2) presides in a court. Judge is often used
interchangeably with court. See COURT (2). -Abbr. J.
(and, in plural, JJ. [Cases: Judges 0=> 1.]
administrative-law judge. See ADMINISTRATIVE-LAW
JUDGE.
administrative patent judge. Patents. A U.S. Patent
and Trademark Office adjudicator charged with con
ducting interference and appeal proceedings. Abbr.
APT. [Cases: Patents C"~111.]
associate judge. (18c) An appellate judge who is neither
a chief judge nor a presiding judge. Also termed
puisne judge.
bankruptcy judge |
ellate judge who is neither
a chief judge nor a presiding judge. Also termed
puisne judge.
bankruptcy judge. (1873) A judicial officer appointed
by a U.S. Court of Appeals to preside over cases filed
under the Bankruptcy Code and proceedings related
to bankruptcy cases that are referred by the U.S.
district court . A bankruptcy judge is appointed for
a term of 14 years. 28 USCA 151 et seq. See ARTICLE
I JUDGE. [Cases: Bankruptcy 0=>2123.]
chiefadministrative patentjudge. Patents. The super
visor ofadministrative patent judges at the U.S. Patent
and Trademark Office. Abbr. CAPT.
chiefjudge. (15c) The judge who presides over the
sessions and deliberations of a court, while also
917 judge
overseeing the administration of the court. -Abbr.
c.J.
circuit judge. (lSc) 1. A judge who sits on a circuit
court; esp., a federal judge who sits on a U.S. court
of appeals. 2. Rist. A special judge added to a court
for the purpose ofholding trials, but without being a
regular member ofthe court. -Abbr. c.J.
city judge. See municipal judge.
continuingpart-time judge. A judge who serves repeat
edly on a part-time basis by election or under a con
tinuing appointment.
county judge. (ISc) A local judge having criminal
or civil jurisdiction, or sometimes both, within a
county.
criminal-court judge. A judge who sits on a court
with jurisdiction only over criminal matters. [Cases:
Judges
de facto judge (di fak-toh). (IS29) A judge operating
under color oflaw but whose authority is procedur
ally defective, such as a judge appOinted under an
unconstitutional statute. -Also termed judge de
facto. [Cases: Judges <>6,26.]
district judge. (lSc) 1. A judge in a federal or state
judicial district. 2. See metropolitan stipendiary mag
istrate under MAGISTRATE. -Abbr. D.J.
duty judge. A judge responsible for setting an arrestee's
bail, usu. by telephone or videoconference.
family-court judge. A judge who sits on a court that
has jurisdiction exclusively over matters involving
domestic relations, such as divorce and child-custody
matters. [Cases: Judges (;:::;::, 1.]
hanging judge. (ISc) Slang. A judge who is harsh
(sometimes corruptly so) with defendants, esp. those
accused of capital crimes.
inferior judge. A judge who sits on a lower court.
[Cases: Judges C=:: 1.1
judge de facto. See de facto judge.
judge delegate. A judge who acts under delegated
authority.
judge ofprobate. See probate judge.
judge ordinary. Rist. The judge ofthe English Court for
Divorce and Matrimonial Causes from 1857-lS75.
judge pro tempore (proh tem-pa-ree). See visiting
judge.
juvenile-court judge. A judge who sits on a court that
has jurisdiction exclusively over matters involv
ing juveniles, such as suits involving child abuse
and neglect, matters involving status offenses, and,
sometimes, suits to terminate parental rights. [Cases:
Judges 1.]
lay judge. (16c) A judge who is not a lawyer.
mentorjudge. An experienced judge who helps a new
judge by sharing knowledge and offering guidance. military judge. A commissioned officer of the armed
forces who is on active duty and is a member ofa bar
ofa federal court or of the highest court ofa state.
The Judge Advocate General ofthe particular service
must certify a military judge as qualified for duty. A
military judge of a general court-martial must also
be a member ofan independent judiciary. A military
judge is detailed to every general court-martial and
usu. to a special court -martial. [Cases: Military Justice
<':=>SS1.]
municipal judge. (lSc) A local judge having criminal or
civil jurisdiction, or sometimes both, within a city.
Also termed city judge.
presidingjudge. (18c) 1. A judge in charge ofa particu
lar court or judicial district; esp., the senior active
judge on a three-member panel that hears and decides
cases. 2. A chief judge. -Abbr. P.J. Also termed
president judge.
probate judge. (18c) A judge having jurisdiction over
probate, inheritance, guardianships, and the like.
Also termed judge ofprobate; surrogate; register;
registry.
puisne judge (pyoo-nee). [Law French puisne "later
born"] 1. A junior judge; a judge without distinction
or title. -Ihis was the title formerly used in English
common-law courts for a judge other than the chief
judge. Today puisne judge refers to any judge of the
English High Court, apart from the ChiefJustice. 2.
See associate judge.
senior administrative patent judge. Patents. A semire
tired administrative patent judge who remains active
in hearing interferences in the U.S. Patent and Trade
mark Office. -Abbr. SAPJ.
senior judge. (l8c) 1. The judge who has served for the
longest time on a given court. 2. A federal or state
judge who qualifies for senior status and chooses this
status over retirement. See SENIOR STATUS.
side judge. Archaic. A judge -or one oftwo judges
ofinferior rank, associated with a judge of a higher
rank for the purpose ofconstituting a court.
special judge. (17c) A judge appOinted or selected to sit,
usu. in a specific case, in the absence or disqualifica
tion ofthe regular judge or otherwise as provided by
statute. [Cases: Judges <>13-19,25.]
"Many, if not ali, jurisdictions have made provision for
the selection of a substitute or special judge to serve in
place of the regular judge in the event of disqualifica
tion, voluntary recusal, disability, or other absence of the
regular judge, The circumstances under which a special
or substitute judge may act in place of the regular judge,
and the manner in which such ajudge may be chosen, are
matters of purely local regulation, entirely dependent on
local constitutions and statutes." 46 Am. Jur. 2d judges
248, at 331 (1994).
temporary judge. See visiting judge.
trial judge. (17c) The judge before whom a case is tried.
-This term is used most commonly on appeal from
the judge's rulings.
918 judge advocate
United States Magistrate Judge. See UNITED STATES
MAGISTRATE JUDGE.
visitingjudge. (1888) A judge appointed by the pre
siding judge of an administrative region to sit tem
porarily on a given court, usu. in the regular judge's
absence. -Also termed temporary judge; judge pro
tempore. [Cases: Judges C=o 13-19, 25.]
judge advocate. (17c) Military law. 1. An officer of a
court-martial who acts as a prosecutor. 2. A legal
adviser on a military commander's staff. 3. Any officer
in the Judge Advocate General's Corps or in a depart
ment ofa U.S. military branch. -Abbr. JA.
staffjudge advocate. A certified military lawyer with
the staff ofa convening or supervisory authority that
exercises general court-martial jurisdiction.
Judge Advocate General. Military law. The senior legal
officer and chieflegal adviser of the Army, Navy, or Air
Force. -Abbr. JAG.
Judge Lynch. See LYNCH LAW.
judge-made law. (1817) 1. The law established by judicial
precedent rather than by statute. See COMMON LAW.
[Cases: Courts C=o88.] 2. The law that results when
judges construe statutes contrary to legislative intent.
Also termed (in sense 2) judicial legislation; bench legis
lation; judicial law. See JUDICIAL ACTIVISM.
judgement. See JUDGMENT.
judge's chamber. See CHAMBER.
judgeship. (17c) 1. The office or authority of a judge. 2.
The period of a judge's incumbency.
judge-shopping. (1962) The practice of filing several
lawsuits asserting the same claims -in a court or a
district with multiple judges -with the hope ofhaving
one of the lawsuits assigned to a favorable judge and
of non suiting or voluntarily dismissing the others. Cf.
FORUM-SHOPPING.
judge trial. See bench trial under TRIAL.
judgment. (13c) 1. A court's final determination of the
rights and obligations of the parties in a case . The
term judgment includes an equitable decree and any
order from which an appeal lies. Fed. R. Civ. P. 54.
Also spelled (esp. in BrE) judgement. -Abbr. 1. -Also
termed (historically) judgment ex cathedra. Cf. RULING
(1); OPINION (1). [Cases: Federal Civil Procedure
2391-2628; Judgment C=o1.] 2. English law. An opinion
delivered by a member of the appellate committee of
the House of Lords; a Law Lord's judicial opinion.
Also termed (in sense 2) speech.
"An action is instituted for the enforcement of a right or
the redress of an injury. Hence ajudgment, as the culmi
nation of the action declares the existence of the right,
recognizes the commission of the injury, or negatives the
allegation of one or the other. But as no right can exist
without a correlative duty. nor any invasion of it without a
corresponding obligation to make amends, the judgment
necessarily affirms, or else denies, that such a duty or such
a liability rests upon the person against whom the aid of
the law is invoked." 1 Henry Campbell Black, A Treatise on
the Law ofJudgments 1, at 2 (2d ed. 1902). accumulative judgment. (1921) A second or additional
judgment against a person who has already been con
victed, the execution ofwhich is postponed until the
completion of any prior sentence.
agreed judgment. (1945) A settlement that becomes
a court judgment when the judge sanctions it.
In effect, an agreed judgment is merely a contract
acknowledged in open court and ordered to be
recorded, but it binds the parties as fully as other
judgments. -Also termed consent judgment; stipu
lated judgment;judgment by consent. [Cases: Federal
Civil Procedure C=o2397; Judgment C=o71-91.]
alternative judgment. A determination that gives
the losing party options for satisfying that party's
duties.
cognovitjudgment (kog-noh-vit). A debtor's confession
ofjudgment; judgment entered in accordance with a
cognovit. See CONFESSION OF JUDGMENT; COGNOVIT.
[Cases: Federal Civil Procedure C=o2396; Judgment
C=o54.]
conditional judgment. A judgment whose force
depends on the performance ofcertain acts to be done
in the future by one of the parties. For example,
a conditional judgment may order the sale of mort
gaged property in a foreclosure proceeding unless
the mortgagor pays the amount decreed within the
time specified. -Also termed common order. [Cases:
Judgment C=o229.]
confession of judgment. See CONFESSION OF
JUDGMENT.
consentjudgment. See agreed judgment.
contradictory judgment. Civil law. A judgment that
has been given after the court has heard the parties
make their claims and defenses. In Louisiana, this
term is opposed to default judgment. Cf. contradictory
motion under MOTION.
declaratory judgment. (1886) A binding adjudication
that establishes the rights and other legal relations of
the parties without providing for or ordering enforce
ment. Declaratory judgments are often sought, for
example, by insurance companies in determining
whether a policy covers a given insured or periL
Also termed declaratory decree; declaration. [Cases:
Declaratory Judgment C=o 1.]
default judgment. See DEFAULT JUDGMENT.
deferred judgment. (1896) A judgment placing a con
victed defendant on probation, the successful com
pletion ofwhich will prevent entry of the underlying
judgment of conviction. This type of probation is
common with minor traffic offenses. -Also termed
deferred adjudication; deferred-adjudication proba
tion; deferred prosecution; probation before judgment;
probation without judgment; pretrial intervention;
adjudication withheld. [Cases: Sentencing and Pun
ishment C=o2050.]
deficiency judgment. (1865) A judgment against
a debtor for the unpaid balance of the debt if a
919 judgment
foreclosure sale or a sale of repossessed personal
property fails to yield the full amount of the debt
due. -Also termed deficiency decree. [Cases: Mort
gages 559; Secured Transactions C;:::240.]
definitive judgment. See final judgment.
determinative judgment. See final judgment.
domestic judgment. A judgment rendered by the courts
of the state or country where the judgment or its effect
is at issue.
dormant judgment. (lSc) A judgment that has not been
executed or enforced within the statutory time limit.
As a result, any judgment lien may have been lost
and execution cannot be issued unless the judgment I
creditor first revives the judgment. See REVIVAL (1). .
[Cases: Federal Civil Procedure C=:>2621; Judgment
C=:>853.)
erroneous judgment. (17c) A judgment issued by a
court with jurisdiction to issue it, but containing an
improper application oflaw. This type ofjudgment
is not void, but can be corrected by a trial court while
the court retains plenary jurisdiction, or in a direct
appeal. Also termed judgment in error. See ERROR
(2).
excess judgment. Insurance. A judgment that exceeds
all of the defendant' |
error. See ERROR
(2).
excess judgment. Insurance. A judgment that exceeds
all of the defendant's insurance coverage. [Cases:
Insurance (>2934(3), 3346, 3374.]
executory judgment (eg-zek-y;Hor-ee). (ISc) A
judgment that has not been carried out, such as a
yet-to-be fulfilled order for the defendant to pay the
plaintiff.
final appealable judgment. See final judgment.
final judgment. (ISc) A court's last action that settles
the rights of the parties and disposes of all issues
in controversy, except for the award of costs (and,
sometimes, attorney's fees) and enforcement of the
judgment. Also termed final appealable judgment;
final decision; final decree; definitive judgment; deter
minative judgment;final appealable order. See FINAL
JUDGMENT RULE. [Cases: Appeal and Error C=>76(1);
Criminal Law C=,1023(2); Federal Civil Procedure
C=:>2579; Federal Courts C=:>571.]
foreign judgment. A decree, judgment, or order of a
court in a state, country, or judicial system different
from that where the judgment or its effect is at issue.
[Cases: Judgment (>813-S32.7.]
in personam judgment. See personal judgment.
in rem judgment. See judgment in rem.
interlocutory judgment (in-tar-Iok-[y]a-tor-ee). (17c)
An intermediate judgment that determines a prelimi
nary or subordinate point or plea but does not finally
decide the case. _ A judgment or order given on a pro
visional or accessory claim or contention is generally
interlocutory. Also termed interlocutory decree.
[Cases: Appeal and Error C=:>68; Federal Civil Pro
cedure C=:>257S; Federal Courts Judgment
C=:>216.] irregular judgment. A judgment that may be set
aside because of some irregularity in the way it was
rendered, such as a clerk's failure to send a defendant
notice that a default judgment has been rendered.
[Cases: Judgment (>353.]
judgment as a matter of law. (iS73) A judgment
rendered during a jury trial either before or after
the jury's verdict against a party on a given issue
when there is no legally sufficient basis for a jury to
find for that party on that issue . In federal practice,
the term judgment as a matter oflaw has replaced
both the directed verdict and the judgment notwith
standing the verdict. Fed. R. Civ. P. 50. Cf. SUMMARY
JUDGMENT. [Cases: Federal Civil Procedure C='2111,
2601; Judgment G-=' 199; Trial 167.]
judgment by confession. See CONFESSION OF JUDG
MENT.
judgment by consent. See agreed judgment.
judgment by default. See DEFAULT JUDGMENT.
judgment by nil dicit. See nil-dicit default judgment
under DEFAULT JUDGMENT.
judgment by non sum informatus. See NO:>! SUM INFOR
MATUS.
judgment for money. See money judgment.
judgment homologating the tableau (ha-mahl-a
gay-ting / ta-bloh or tab-loh). Civil law. A judgment
approving a plan for distributing property ofa dece
dent's estate. _ The distribution plan is known as the
tableau ofdistribution. La. Code Civ. Proc. art. 3307.
See HOMOLOGATIOR
judgment in error. See erroneous judgment.
judgment in personam. See personal judgment.
judgment in rem (in rem). (lSc) A judgment that deter
mines the status or condition of property and that
operates directly on the property itself. The phrase
denotes a judgment that affects not only interests in
a thing but also all persons' interest in the thing.
Also termed in rem judgment. rCases: Judgment C=:>
S03.]
judgment in retraxit. See judgment ofretraxit.
judgment inter partes. See personal judgment.
judgment nil capiat per billa (nil kap-ee-dt par bil-a).
(1816) Judgment that the plaintiff take nothing by the
bill; a take-nothing judgment in a case instituted by
a bill.
judgment nil capiat per breve (nil kap-ee-dt pdr breev
or bree-vee). (1916) Judgment that the plaintiff take
nothing by the writ; a take-nothing judgment in a
case instituted by a writ.
judgment nisi (nI-SI). (ISc) A provisional judgment
that, while not final or absolute, may become final
on a party's motion. See NISI.
judgment notwithstanding the verdict. (18c) A
judgment entered for one party even though a
jury verdict has been rendered for the opposing
judgment 920
party. Also termed judgment non obstante vere
dicto (non ahb-stan-tee ver-;J-dik-toh). Abbr.
JNOV; judgment N.O.V. See judgment as a matter of
law. [Cases: Criminal LawC=:'977(4); J;ederal Civil
Procedure C=:' 2601-2610; Judgment C=:' 199.]
judgment nunc pro tunc. A judgment entered on a day
after the time when it should have been entered, as of
the earlier date. Also termed decree nunc pro tunc.
See NUNC PRO TUI\C. [Cases: Federal Civil Procedure
~-."o..:..}; Judgment C=:'273.]
judgment ofacquittal. (17c) A judgment, rendered on
the defendant's motion or court's own motion, that
acquits the defendant of the offense charged when
the evidence is insufficient. Fed. R. Crim. P. 29. See
directed verdict under VERDICT. [Cases: Criminal Law
judgment ofblood. See death sentence under SEN-
TENcE.
judgment ofcassetur billa. See CASSETUR BILLA.
judgment ofcassetur breve. See CASSETUR BREVE.
judgment ofconviction. (1806) 1.1be written record of
a criminal judgment, consisting of the plea, the verdict
or findings, the adjudication, and the sentence. Fed. R.
Crim. P. 32(d)(l). 2. A sentence in a criminal case. See
SENTENCE. [Cases: Criminal Law C=:'990.1.]
judgment ofdiscontinuance. 1. A judgment dismiss
ing a plaintiff's action based on interruption in the
proceedings occasioned by the plaintiffs failure to
continue the suit at the appointed time or times. 2.
NONSUIT (1). Often shortened to discontinuance.
See DISCONTINUANCE. [Cases: Pretrial Procedure
501-581.]
judgment ofdismissal. (1809) A final determination
of a case (against the plaintiff in a civil action or the
government in a criminal action) without a trial on
its merits. See DISMISSAL. [Cases: Federal Civil Proce
dure Pretrial Procedure C=:'694.j
judgment ofnolle prosequi (nahl-ee prahs-<l-kwI).
(1869) A judgment entered against a plaintiff who,
after appearance but before judgment on the merits,
has decided to abandon prosecution of the lawsuit.
See NOLLE PROSEQUI.
judgment of nonsuit. 1. Hist. The judgment given
against a plaintiff who fails to be present in court to
hear the jury render its verdict or who, after issue is
joined, fails to bring the issue to be tried in due time.
-This judgment does not prevent the plaintiff from
filing the same case again. [Cases: Federal Civil Pro
cedure (;::::>2116.] 2. NONSUIT (2).
judgment ofrepleader. See REPLEADER.
judgment ofretraxit (ri-trak-sit). Hist. A judgment
against a plaintiff who has voluntarily retracted the
claim. -Such a judgment bars the plaintiff from reHti
gating the claim. -Also termed judgment in retraxit.
See RETRAXIT. judgment on the merits. (18c) A judgment based on
the evidence rather than on technical or procedural
grounds. -Also termed decision on the merits.
judgment on the pleadings. (18e) A judgment based
solely on the allegations and information contained in
the pleadings, and not on any outside matters. Fed. R.
Civ. P. 12(c). Cf. SUMMARY JUDGMENT. [Cases: Federal
Civil Procedure C=:' 1041-1068; Pleading C::= 342.]
judgment on the verdict. (l7c) A judgment for the party
receiving a favorable jury verdict.
judgment quasi in rem (kway-sI [or -ZI] in rem). (1905)
A judgment based on the court's jurisdiction over
the defendant's interest in property rather than on
its jurisdiction over the defendant or the property.
Such a judgment affects only particular persons'
interests in a thing that is, only the persons who
are named or described in the proceeding. [Cases:
Judgment C=:'805.j
judgment quod billa cassetur (kwod bil-;l k::l-see-tJr).
(18c) Judgment that the bill be quashed. This is a
judgment for the defendant.
judgment quod breve cassetur (kwod breev or bree-vee
b-see-t;Jr). Judgment that the writ be quashed. -Ihis
is a judgment for the defendant.
judgment quod computet. See QUOD COMPUTET.
judgment quod recuperet (kwod ri-kyoo-p::lr-it).
Judgment that the plaintiff recover.
judgment respondeat ouster (ri-spon-dee-at ows-t;lr).
His!. An interlocutory judgment requiring the defen
dant who has made a dilatory plea to give a more sub
stantial defense.
junior judgment. A judgment rendered or entered after
the rendition or entry ofanother judgment, on a dif
ferent claim, against the same defendant.
money judgment. (1869) A judgment for damages
subject to immediate execution, as distinguished
from equitable or injunctive relief. -Also termed
judgment for money.
nunc pro tunc judgment (nilngk proh tilngk). (1828) A
procedural device by which the record ofa judgment
is amended to accord with what the judge actually
said and did, so that the record will be accurate.
This device is often used to correct defects in real-
estate titles. Federal Civil Procedure C::=2625;
Judgment 326.]
personal judgment. (1829) 1. A judgment that imposes
personal liability on a defendant and that may there
fore be satisfied out ofany ofthe defendant's property
within judicial reach. 2. A judgment result from
an action in which a court has personal jur ion
over the parties. 3. A judgment against a person as
distinguished from a judgment against a thing, right,
or status. Also termed judgment in personam (in
p;Jr-soh-n;Jm); in personam judgment;judgment inter
partes (in-t::lf pahr-teez).
simulated judgment. Civil law. A judgment that,
although founded on an actual debt and intended
921 judicatory
for collection by the usual legal processes, is actually
entered into by the parties to give one of them an
undeserving advantage or to defraud third parties.
stipulated judgment. See agreed judgment.
summary judgment. See SUMMARY JUDGMENT.
suspension ofjudgment. See STAY.
take-nothing judgment. (1938) A judgment for the
defendant providing that the plaintiff recover nothing
in damages or other relief. -Also termed (in some
states) no cause ofaction.
valid judgment. 1. A judgment that will be recog
nized by common-law states as long as it is in force
in the state where the judgment was rendered. [Cases:
Judgment (;:::>815.] 2. A judicial act rendered by a
court having jurisdiction over the parties and over the
subject matter in a proceeding in which the parties
have had a reasonable opportunity to be heard. [Cases:
Federal Civil Procedure (;:::)2393.]
voidable judgment. (17c) A judgment that, although
seemingly valid, is defective in some material way;
esp., a judgment that, although rendered by a court
having jurisdiction, is irregular or erroneous. [Cases:
Judgment (;::J27, 353, SOl.]
void judgment. (18c) A judgment that has no legal force
or effect, the invalidity of which may be asserted by
any party whose rights are affected at any time and
any place, whether directly or collaterally . From its
inception, a void judgment continues to be absolutely
null. It is incapable of being confirmed, ratified, or
entorced in any manner or to any degree. One source
ofa void judgment is the lack ofsubject-matter juris
diction. [Cases: Federal Civil Procedure (;::J2392;
Judgment (;::J5-27, 346, 486.]
judgmental immunity. See ERROR-OF-JUDGMENT RULE.
judgment book. See judgment docket under DOCKET
(1).
judgment bycomparison. Patents. Allowance ofa patent
claim because a similar claim has been allowed before.
lhere is no stare decisis doctrine in patent prosecu
tions, but examiners may consider allowance ofsimilar
claims as a decision-making aid.
judgment creditor. (18c) A person haVing a legal right
to enforce execution of a judgment for a specific sum
ofmoney.
bona fide judgment creditor. One who recovers a
judgment without engaging in fraud or collusion.
judgment debt. See DEBT.
judgment debtor. (18c) A person against whom a money
judgment has been entered but not yet satisfied.
judgment docket. See DOCKET (1).
judgment ex cathedra. 1. See EX CATHEDRA. 2. See
JUDGMENT (1).
judgment execution. 1. See EXECUTION (3). |
RA. 2. See
JUDGMENT (1).
judgment execution. 1. See EXECUTION (3). 2. See EXE
CUTION (4).
judgment file. See judgment docket under DOCKET (1). judgment lien. See LIEN.
judgment non obstante veredicto. Seejudgment notwith
standing the verdict under JUDGMENT.
judgment note. 1. A nonnegotiable promissory note,
illegal in most states, containing a power of attorney
to appear and confess judgment for a specified sum. 2.
COGNOVIT NOTE.
judgment N.O.V. See judgment notwithstanding the
verdict under JUDGMENT.
judgment ofblood. See death sentence under SENTENCE.
judgment ofcassetur billa. See CASSETUR BILLA.
judgment ofcassetur breve. See CASSETUR BREVE.
judgment ofrepleader. See REPLEADER.
judgment-proof, adj. (18c) (Of an actual or potential
judgment debtor) unable to satisfy a judgment for
money damages because the person has no property,
does not own enough property within the court's juris
diction to satisfy the judgment, or claims the benefit of
statutorily exempt property. -Also termed execution
proof.
judgment quod computet. See QUOD COMPUTET.
judgment receiver. See RECEIVER.
judgment record. See judgment docket under DOCKET
(1).
judgment roll. See judgment docket under DOCKET (1).
"As the pleadings constitute part of the record, it is indis
pensable that they be filed. In some of the codes they must
be filed at the institution of the action; in others, by or
before the first day of the term; in others, at or before the
trial. They must be used in making the 'judgment roll:
and in the practice of each State (not here conSidered)
procedure is provided to procure filing." Edwin E. Bryant,
The Law of Pleading Under the Codes ofCivil Procedure
179 (2d ed. 1899).
judgment-roll appeal. See APPEAL.
judgment sale. See execution sale under SALE.
judgment seat. 1. The bench on which a judge sits. 2. By
extension, a court or tribunal.
judgment summons. See SUMMONS.
judicable (joo-di-b-bdl), adj. (17c) Rare. Capable of
being adjudicated; triable; justiciable. -Also termed
judiciable (joo-dish-d-bdl).
judicare (joo-di-kair-ee), vb. [Latin] Civil law. To judge;
to decide or determine judicially; to give judgment or
sentence.
judicate, vb. See ADJUDICATE.
judicative (joo-di-kay-tiv or -kd-tiV), adj. Rare. See ADJU
DICATIVE.
judicator (joo-di-kay-tdr), n. (18c) A person authorized
to act or serve as a judge.
judicatory (joo-di-kd-tor-ee), adj. (17c) 1. Ofor relating
to judgment. 2. Allowing a judgment to be made; giving
a decisive indication.
judicatory (joo-di-b-tor-ee), n. (16c) 1. A court; any
tribunal with judicial authority <a church judicatory>.
2. The administration of justice <working toward a
more efficient judicatory>.
judicatum solvi (joo-di-kay-t~m SOl-VI). [Latin "that the
judgment will be paid"] 1. Roman law. The payment
of the sum awarded by way of judgment. 2. Roman
law. Security for the payment of the sum awarded by
way ofjudgment. This applied when a representative
appeared on the defendant's behalfat the trial. 3. Civil
law. A court-ordered caution given by the defendant in
a maritime case. See CAUTION.
"Judicatum salvi .... The cautioner in such an obliga
tion is bound in payment or fulfilment of whatever may be
decerned for, and he is not liberated from the obligation
by the death of the principal debtor. It is a kind of caution
not infrequently required. Under the civil law this caution
was required of any defender who remained in posses
sion, during the suit, of the subject which gave rise to
the dispute." John Trayner, Trayner's Latin Maxims 292-93
(4th ed. 1894).
judicature (joo-di-b-ch~r). (16c) 1. The action ofjudging
or of administering justice through duly constituted
courts. 2. JUDICIARY (3). 3. A judge's office, function,
or authority.
Judicature Acts. A series of statutes that reorganized
the superior courts of England in 1875. The Judica
ture Acts were superseded by the Supreme Court Act
of 1981.
judices (joo-di-seez). [Latin] pl. JUDEX.
judicia (joo-dish-ee-~). [Latin] pI. JUDICIUM.
judiciable, adj. See JUDICABLE.
judicial (joo-dish-~l), adj. (14c) 1. Of, relating to, or by the
court or a judge <judicial duty> <judicial demeanor>.
2. In court <the witness's judicial confession>. 3. Legal
<the Attorney General took no judicial action>. 4. Of
or relating to a judgment <an award ofjudicial interest
at the legal rate>. Cf. JUDICIOUS.
quasi-judicial. See QUASI-JUDICIAL.
judicial act. See ACT (2).
judicial activism, n. (1949) A philosophy of judicial
decision-making whereby judges allow their personal
views about public policy, among other factors, to guide
their decisions, usu. with the suggestion that adher
ents ofthis philosophy tend to find constitutional viola
tions and are willing to ignore precedent. Cf. JUDICIAL
RESTRAINT (3). -judicial activist, n.
"[I]fto resolve the dispute the court must create a new rule
or modify an old one, that is law creation. Judges defending
themselves from accusations ofjudicial activism sometimes
say they do not make law, they only apply it. It is true that
in our system judges are not supposed to and generally do
not make new law with the same freedom that legislatures
can and do; they are, in Oliver Wendell Holmes's phrase,
'confined from molar to molecular motions.' The qualifica
tion is important, but the fact remains that judges make,
and do not just find and apply, law." Richard A. Posner, The
Federal Courts: Crisis and Reform 3 (1985).
judicial activity report. A regular report, usu. monthly
or quarterly, on caseload and caseflow within a given
court or court system. judicial administration. The process of doing justice
through a system ofcourts.
judicial admission. See ADMISSION (1).
judicial arbitration. See ARBITRATION.
Judicial Article. (1881) Article III of the U.S. Consti
tution, which creates the Supreme Court, vests in
Congress the right to create inferior courts, provides for
life tenure for federal judges, and specifies the powers
and jurisdiction of the federal courts. [Cases: Federal
Courts C=::=o4.]
judicial assize. See ASSIZE (6).
judicial-authority justification. See JUSTIFICATION.
judicial bias. See BIAS.
judicial bond. See BOND (2).
judicial branch. (l8c) The branch ofgovernment consist
ing of the courts, whose function is to ensure justice
by interpreting, applying, and generally administer
ing the laws; JUDICIARY (1). Cf. LEGISLATIVE BRANCH;
EXECUTIVE BRANCH. [Cases: Constitutional Law
2450-2609.]
judicial bypass. (1977) A procedure permitting a person
to obtain a court's approval for an act that would ordi
narily require the approval of someone else, such as
a law that requires a minor to notify a parent before
obtaining an abortion but allows an appropriately
qualified minor to obtain a court order permitting the
abortion without parental notice. [Cases: Abortion and
Birth Control C=::=o 116.]
judicial-bypass provision. Family law. 1. A statutory
provision that allows a court to assume a parental role
when the parent or guardian cannot or will not act on
behalf of a minor or an incompetent. 2. A statutory
provision that allows a minor to circumvent the neces
sity ofobtaining parental consent by obtaining judicial
consent. [Cases: Abortion and Birth Control C=::=o 116.]
judicial cognizance. See JUDICIAL NOTICE.
judicial combat. See TRIAL BY COMBAT.
judicial comity. See COMITY.
Judicial Committee of the Privy Council. A United
Kingdom tribunal, created in 1833, with jurisdiction to
hear certain admiralty and ecclesiastical appeals, and
certain appeals from the Commonwealth . From the
16th century until the 19th, the Court ofDelegates was
the final court of appeal in England for ecclesiastical
suits. During the reign ofWilliam IV, the power to hear
final appeals was transferred to the Privy Council, and
then to the Judicial Committee of the Privy Council.
The committee consists entirely oflay people; ecclesi
astics become members of the court only if an appeal
is brought under the Church Discipline Act. Even then
the ecclesiastics must be episcopal privy counselors.
The Judicial Committee's decisions are not treated as
binding precedent in the United Kingdom, but they are
influential because ofthe overlapping composition of
members ofthe Privy Council and the House ofLords
923
in its judicial capacity. Also termed Court ofFinal
Appeal.
judicial compensation. 1. The remuneration that judges
receive for their work. [Cases: Judges 922.]2. Civil
law. A court's judgment finding that two parties
are mutually obligated to one another and crafting
the amount of the judgment in accordance with the
amount that each party owes. - A claim for compensa
tion is usu. contained in a reconventional demand. La.
Code Civ. Proc. 1902. See reconventional demand under
DEMAND (1). [Cases: Set-off and Counterclaim 98.]
Judicial Conference ofthe United States. The policy
making body of the federal judiciary, responsible for
surveying the business of the federal courts, making
recommendations to Congress on matters affecting
the judiciary, and supervising the work ofthe Admin
istrative Office of the United States Courts. -The
Conference was originally established in 1923 as the
Conference of Senior Circuit Judges. 28 USCA 33l.
See ADMINISTRATIVE OFFICE OF THE UNITED STATES
COURTS.
Judicial confession. See CONFESSION.
judicial contempt. See CONTEMPT (2).
judicial control. Civil law. A doctrine by which a court
can deny cancellation of a lease if the lessee's breach is
of minor importance, is not caused by the lessee, or is
based on a good-faith mistake offact. [Cases: Landlord
and Tenant 934.]
judicial council. (1925) A regularly assembled group
ofjudges whose mission is to increase the efficiency
and effectiveness ofthe courts on which they sit; esp., a
semiannual assembly of a federal circuit's judges called
by the circuit's chief judge. 28 USCA 332.
judicial day. See juridical day under DAY.
judicial declaration. See DECLARATION (1).
judicial dictum. See DICTUM.
judicial discretion. See DISCRETION (4).
judicial document. A court-filed paper that is subject
to the right of public access because it is or has been
both relevant to the judicial function and useful in
the judicial process. See Lugosch v. Pyramid Co. of
Onandaga, 435 F.3d llO, 119 (2d Cir. 2006).
judicial economy. (1942) EffiCiency in the operation of
the courts and the judicial system; esp., the efficient
management oflitigation so as to minimize duplica
tion ofeffort and to avoid wasting the judiciary's time
and resources. _ A court can enter a variety of orders
to promote judicial economy. For instance, a court may
consolidate two cases for trial to save the court and the
parties from haVing two trials, or it may order a separate
trial on certain issues if doing so would provide the
opportunity to avoid a later trial that would be more
complex and time-consuming.
judicial-economy exception. (1981) An exemption from
the final-judgment rule, by which a party may seek
immediate appellate review ofa nonfinal order ifdoing
so might establish a final or nearly final disposition Judicial Panel on Multidistrict Litigation
of the entire suit. See FINAL-JUDGMENT RULE. [Cases:
Appeal and Error 968; Federal Courts C=>572.J
judicial estoppel. See ESTOPPEL.
judicial evideuce. See EVIDENCE.
judicial fact. See judicially noticed fact under FACT.
judicial factor. See FACTOR.
judicial foreclosure. See FORECLOSURE.
judicial immunity. See IMMUNITY (1).
judicial insurance. See INSURANCE.
judicialize, vb. 1. To pattern (procedures, etc.) after a
court oflaw <these administrative hearings have been
judicialized>. 2. To bring (something not traditionally
within the judicial system) into the judicial system
<political questions are gradually becoming judicial
ized>. judicialization, n.
judicial jurisdiction. See JURISDICTION.
judicial knowledge. See JUDICIAL NOTICE.
judicial law. See JUDGE-MADE LAW.
judicial legislation. 1. See JUDGE-MADE LAW (2). 2. See
LEGISLATION.
judicial lien. See LIEN.
judicially created double patenting. See DOUBLE PAT
ENTING.
judicially created |
. See LIEN.
judicially created double patenting. See DOUBLE PAT
ENTING.
judicially created double-patenting rejection. See
REJECTION.
judicial morsel. See ordeal ofthe morsel under ORDEAL.
judicial mortgage. See MORTGAGE.
judicial notice. (17c) A court's acceptance, for purposes
of convenience and without requiring a party's proof, of
a well-known and indisputable fact; the court's power
to accept such a fact <the trial court took judicial notice
of the fact that water freezes at 32 degrees Fahrenheit>.
Fed R. Evid. 201. -Also termed judicial cognizance;
judicial knowledge. See judicially noticed fact under
FACT. [Cases: Criminal Law 9304; Evidence
1-52.]
judicial notice ofprior art. Patents. Acknowledgment
by the U.S. Patent and Trademark Office of all materi
als in its possession as prior art, for settling questions
of novelty and priority. _ Patents, applications, and
records of interferences and appeals may be submit
ted by citation alone.
;udiciallynoticed fact. See FACT.
judicial oath. See OATH.
judicial officer. See OFFICER (1).
judicial opinion. See OPINION (1).
judicial order. See ORDER (2).
Judicial Panel on Multidistrict Litigation. A panel of
federal judges responsible for transferring civil actions
having common questions of fact from one district
court to another to consolidate pretrial proceedings.
_ The panel was created in 1968. The Chief Justice
924 judicial power
appoints its members. 2S USCA 1407. -Abbr. JPML.
[Cases: Federal Courts C:=> 151-157.]
judicial power. (16c) 1. The authority vested in courts
and judges to hear and decide cases and to make
binding judgments on them; the power to construe
and apply the law when controversies arise over what
has been done or not done under it. Under federal
law, this power is vested in the U.S. Supreme Court and
in whatever inferior courts Congress establishes. The
other two great powers ofgovernment are the legislative
power and the executive power. [Cases: Constitutional
Law C:=>2450-2609; Federal Courts C:=> 1.1; Judges C:=>
24.] 2. A power conferred on a public officer involving
the exercise ofjudgment and discretion in deciding
questions of right in specific cases affecting personal
and proprietary interests . In this sense, the phrase is
contrasted with ministerial power.
judicial privilege. 1. See PRIVILEGE (1). 2. See litigation
privilege under PRIVILEGE (1).
judicial proceeding. See PROCEEDING.
judicial-proceedings privilege. See litigation privilege
under PRIVILEGE (1).
judicial process. See PROCESS.
judicial question. (lSc) A question that is proper for
determination by the courts, as opposed to a moot
question or one properly decided by the executive or
legislative branch. Cf. POLITICAL QUESTION.
judicial record. See DOCKET (1).
judicial remedy. See REMEDY.
judicial restraint. (1Sc) 1. A restraint imposed by a court,
as by a restraining order, injunction, or judgment. 2.
The principle that, when a court can resolve a case
based on a particular issue, it should do so, without
reaching unnecessary issues. [Cases: Appeal and Error
C:=>S43; Federal Courts C:=>756.] 3. A philosophy of
judicial decision-making whereby judges avoid indulg
ing their personal beliefs about the public good and
instead try merely to interpret the law as legislated and
according to precedent. -Also termed (in senses 2 &
3) judicial self-restraint. Cf. JUDICIAL ACTIVISM.
judicial review. (lS51) 1. A court's power to review the
actions ofother branches or levels ofgovernment; esp.,
the courts' power to invalidate legislative and executive
actions as being unconstitutional. 2. The constitutional
doctrine providing for this power. 3. A court's review
of a lower court's or an administrative body's factual
or legal findings. [Cases: Administrative Law and Pro
cedure C:=>651-S21.]
de novo judicial review. (1955) A court's non deferential
review of an administrative decision, usu. through a
review of the administrative record plus any addi
tional evidence the parties present. -Also termed
de novo review. [Cases: Administrative Law and Pro
cedure C:=>744.]
plenary review. Appellate review by all the members
ofa court rather than a panel.
judicial robe. See ROBE (1). judicial sale. See SALE.
judicial self-restraint. 1. See JUDICIAL RESTRAINT (2).
2. See JUDICIAL RESTRAINT (3).
judicial separation. 1. See SEPARATION (1). 2. See SEP
ARATION (2). 3. See divorce a mensa et thoro under
DIVORCE.
judicial sequestration. See SEQUESTRATION.
judicial settlement. See SETTLEMENT (2).
judicial stacking. See STACKING.
judicial-tenure commission. A commission that reviews
complaints against judges, investigates those com
plaints, and makes recommendations about appropri
ate measures to the highest court in the jurisdiction.
[Cases: Judges C:=> 11.]
judicial trustee. See TRUSTEE (1).
judicial writ. See WRIT.
judicia populi (joo-dish-ee-<) pop-y<}-lr). [Latin] Roman
law. The criminal jurisdiction of the comitia. See
COMITIA.
judicia publica (joo-dish-ee-<) pab-li-b). [Latin] Roman
law. The jurisdiction ofthe quaestiones perpetuae. See
QUAESTIO PERPETUA.
judiciary (joo-dish-ee-er-ee or joo-dish-<}-ree), n. (ISc)
1. The branch of government responsible for inter
preting the laws and administering justice. Cf. EXEC
UTIVE (1); LEGISLATURE. [Cases: Constitutional Law
C:=>2450-2609; Judges C:=> 1.]2. A system ofcourts. 3.
A body ofjudges. -Also termed (in sense 3) judica
ture. -judiciary, adj.
judicia summaria (joo-dish-ee-<) s<}-mair-ee-<}). [Law
Latin "summary proceedings"] Scots law. Actions that
can be summarily disposed of.
judicio de amparo. See AMPARO.
judicio sisti (joo-dish-ee-oh Sis-tI). [Latin "to be present
in court"] 1. Roman law. Appearance in court. 2.
Roman law. Security for appearance in court; VADI
MONIUM. 3. Scots law. A type of caution requiring a
claimant or the principal debtor to appear in court
whenever the opponent demanded it. This type of
caution was used in some criminal cases and in cases
involving defendants who were foreigners or posed a
flight risk. See CAUTION.
judicious (joo-dish-<}s), adj. (16c) Well-considered;
discreet; wisely circumspect <the court's judicious
application of the rules of evidence>. Cf. JUDICIAL.
judiciousness, n.
judicium (joo-dish-ee-<}m), n. [Latin] Hist. 1. A
judgment. 2. A judicial proceeding; a trial. 3. A court
or tribunal. In Roman law, the plural judiCia refers
to criminal courts. PI. judicia.
judicium capitale (kap-i-tay-Iee). [Latin] Hist. A
judgment ofdeath; a capital sentence.
judicium parium (par-ee-<}m). [Latin] Hist. A judgment
of one's peers; a jury trial or verdict.
925
judicium publicum (pab-li-kam). [Latin "public trial"]
A criminal proceeding under a public statute. _ The
term derived from the Roman rule allowing any
member of the public to initiate a prosecution. See
COMITIA.
"Judicium publicum may have originally meant trial by or
before the actual popular assembly, though it is doubtful
whether the phrase existed at all before the 'people' had
come to be replaced by quaestores. There is much to be
said, in spite ofJustinian's explanation [lnst. 4.18.1], for the
view that these criminal trials were called 'public' as being
'of public interest: because, to use Blackstone's words,
their subject-matter affects the whole community." 2 E.C.
Clark, History ofRoman Private Law 10, at 441 (1914).
judicium Dei (joo-dish-ee-am dee-I). Hist. God's
supposed judgment on the merits of the case, made
manifest by the outcome of an observable event. _
Examples dating from Norman times were the trial
by combat and the ordeal. See ORDEAL; TRIAL BY
COMBAT.
judicium ecclesiasticum. See FORUM ECCLESIASTICUM.
judicium parium. See JUDICIUM.
judicium publica. See JUDICIUM.
judicum rejectio (joo-di-bm ri-jek-shee-oh). [Latin]
Roman law. A litigant's right to exercise peremptory
challenges against a judge or a certain number of
jurors.
judicum sortitio (joo-di-kdm sor-tish-ee-oh). [Latin]
Roman law. The practice ofchoosing jurors by drawing
from an urn the names of eligible participants. -The
English word sortition (meaning "the drawing or
casting of!ots") derives from the Latin sortitio.
judicum subsortitio (joo-di-kam sab-sor-tish-ee-oh).
[Latin] Roman law. The practice of chOOSing supple
mental jurors (when necessary after peremptory chal
lenges have been exercised) by draWing from an urn
the names ofeligible participants.
juge (zhoozh), n. [French] French law. A judge.
juge de paix (zhoozh da pe or pay). An inferior judge;
esp., a police magistrate.
juge d'instruction (zhoozh dan-strook-syawn). A mag
istrate who conducts preliminary criminal proceed
ings, as by taking complaints, interrogating parties
and witnesses, and formulating charges.
juicio (hwee-syoh). Spanish law. 1. A trial or suit; litiga
tion. 2. Wisdom; prudence. 3. The capacity to distin
guish right from wrong and truth from falsehood.
juise (jUU-IZ) Hist. 1. A judgment, sentence, or penalty.
2. By extension, the instrument of punishment, esp.
a gibbet.
Julian calendar. See OLD STYLE.
jumbo certificate. A certificate ofdeposit of$100,000 or
more. -Also termed jumbo.
jumbo mortgage. See MORTGAGE.
jump bail, vb. (1889) (Ofan accused) to fail to appear in
court at the appointed time after promising to appear jura
and posting a bail bond. -Also termed skip bail. See
BAIL-JUMPING. (Cases: Bail ~97.1
jump citation. See pinpoint citation under CITATION
(3).
jumping a claim. Hist. The act of taking possession of
public land to which another has previously acquired
a claim. _ The first occupant has the right to the land
both under squatter law and custom and under pre
emption laws ofthe United States.
Junian Latin, n. See LATINI JUNIANI.
junior, adj. (13c) Lower in rank or standing; subordinate
<a junior interest>.
junior bond. See BOND (3).
junior counsel. See COUNSEL.
junior creditor. See CREDITOR.
junior debt. See subordinate debt under DEBT.
junior execution. See EXECUTION.
junior interest. See INTEREST (2).
junior jndgment. See JUDGMENT.
junior lien. See LIEN.
junior mortgage. See MORTGAGE.
junior partner. See PARTNER.
junior party. Patents. In an interference proceeding, the
party or parties who did not file the patent application
first. - A junior party has the burden of proving that
he or she is the first inventor. Cf. SENIOR PARTY. [Cases:
Patents ~106(1).]
junior security. See SECURITY.
junior user. Trademarks. A person other than the first
person to use a trademark. - A junior user may be per
mitted to continue using a mark in areas where the
senior user's mark is not used, if the junior user did
not know about the other user, and was the first user
to register the mark. Also termed second user; late
comer. See INNOCENT JUNIOR USER. Cf. SENIOR USER.
[Cases: Trademarks~1l37.]
innocent junior user. Trademarks. A person who,
without actual or constructive knowledge, uses a
trademark that has previously been used in a geo
graphically distant market, and who may continue to
use the trademark in a limited geographic area as long
as the senior user does not use the mark there.
junior writ. See WRIT.
junk asset. See troubled asset under ASSET.
junk bond. See BOND (3).
jura (joor-;, n. pl. [Latin] Rights. See IUS.
jura fiscalia (fis-kay-Iee-a). Hist. Fiscal rights; rights
of the Exchequer.
jurafixa (joor-a fik-S;l). Hist. Immovable rights.
jura in personam. A right to enforce a particu
lar person' |
-S;l). Hist. Immovable rights.
jura in personam. A right to enforce a particu
lar person's obligation to another. See IUS IN
PERSONAM.
jura in rem. See JUS IN RE.
jural 926
jura majestatis (maj-a-stay-tis). Hist. Rights ofsover
eignty or majesty.
jura mixti dominii (miks-tI d;;-min-ee-I). Hist. Rights
of mixed dominion; the king's or queen's right or
power ofjurisdiction.
jura personarum (p;;r-sa-nair-;;m). Rights ofpersons.
See JUS PERSONARUM.
jura praediorum (pree-dee-or-am). Hist. The rights
of estates.
jura regalia (ri-gay-Iee-a). Hist. Royal rights; the pre
rogatives of the Crown. See REGALIA (1).
jura rerum (reer-am). Rights ofthings. See JUS RERUM.
jura summi imperii (sam-l im-peer-ee-I). Hist. Rights
ofsupreme dominion; rights of sovereignty.
jural Ooor-aI), adj. (17c) 1. Ofor relating to law or juris
prudence; legal <jural and equitable rules>. 2. Of or
relating to rights and obligations <jural relations>.
jural act. See ACT.
jural activity. See jural act under ACT.
jural agent. (2004) An official -someone who has the
appropriate authoritative status in society to enforce
or affect the society's legal system -who engages in a
jural act. Common examples include judges, legisla
tors, and police officers acting in their official capaci
ties. See jural act under ACT.
jural cause. See proximate cause under CAUSE (1).
jura majestatis. See JURA.
juramentum (joor-a-men-tam), n. [Latin] Civil law. An
oath. PI. juramenta (joor-a-men-ta).
juramentum calumniae (k;;-Iam-nee-ee). An oath of
calumny. See oath ofcalumny under OATH.
juramentum corporalis (kor-pa-ray-lis). A corporal
oath. See corporal oath under OATH.
juramentum in litem (in II-tern or -tam). An oath in
litem. See oath in litem under OATH.
juramentum judiciale (joo-dish-ee-ay-lee). An oath
by which the judge defers the decision of the case to
either ofthe parties.
juramentum necessarium (nes-a-sair-ee-;lm). A neces
sary or compulsory oath.
juramentum voluntarium (vol-an-tair-ee-am). A vol
untaryoath.
jura mixti dominii. See JURA.
jurant (joor-;;nt), n. Archaic. One who takes an oath.
jurant, n.
jura personarum. See JURA.
jura praediorum. See JURA.
jura regalia. See JURA.
jura rerum. See JURA.
jura summi imperii. See JURA.
jurat (joor-at). (18c) 1. [fr. Latin jurare "to swear"] A
certification added to an affidavit or deposition stating when and before what authority the affidavit or depo
sition was made . A jurat typically says "Subscribed
and sworn to before me this __ day of [month},
[year]," and the officer (usu. a notary public) thereby
certifies three things: (1) that the person signing the
document did so in the officer's presence, (2) that the
signer appeared before the officer on the date indicated,
and (3) that the officer administered an oath or affirma
tion to the signer, who swore to or affirmed the contents
ofthe document. -Also termed jurata. Cf. VERIFICA
TION. [Cases: Affidavits C=::> 12.]
witness jurat. A subscribing witness's certificate
acknowledging the act ofwitnessing . Even though
this certificate is technically an acknowledgment and
not a true jurat, the phrase witness jurat is commonly
used. See ACKNOWLEDGMENT.
2. [fro Latinjuratus "one sworn"] In France and the
Channel Islands, a municipal officer or magistrate.
jurata (juu-ray-t;;), n. 1. Hist. A jury of 12 persons; esp.,
a jury existing at common law. 2. JURAT (1).
juration (juu-ray-shan). Archaic. 1. The act ofadminis
tering an oath. 2. The act ofswearing on oath.
jurative. See JeRATORY.
jurator Ouu-ray-t;;r). Archaic. See JUROR.
juratorial (joor-;;-toh-ri-;ll) adj. Of or pertaining to a
jury.
juratory (joor-a-tor-ee), adj. Of, relating to, or contain
ing an oath. -Also termed jurative.
juratory caution. 1. Maritime law. A court's permission
for an indigent to disregard filing fees and court costs.
A suit upon a juratory caution is the equivalent ofa
suit in forma pauperis. The right was first recognized in
United States admiralty courts in Bradford V. Bradford,
3 F. Cas. 1129 (1878). See IN FORMA PAUPERIS. [Cases:
Admiralty C=::> 123.] 2. Scots law. A security given on
oath, such as a bond.
jure (joor-ee), adv. [Latin]!. By right; in right. 2. By law.
See DE JURE.
jure accessionis (joor-ee ak-sesh-ee-oh-nis). By the law
of natural accession . For example, the fruits of trees
on one's land are one's property jure accession is.
jure accretionis (;;-kree-shee-oh-nis). By right ofaccre
tion.
jure belli (bel-I). By the right or law of war.
jure civili (s;)-vI-h). By the civil law.
jure coronae (ka-roh-nee). In right ofthe Crown.
jure devolution is (dev-;l-loo-shee-oh-nis). By right of
devolution.
jure divino (di-Vl-noh). By divine right.
jure ecclesiae (e-klee-z[hlee-ee). By right ofthe church.
jure gentium (jen-shee-;lm). By the law of nations.
jure officii (a-fish-ee-I). By right ofoffice.
jure proprietatis (pra-pn-;)-tay-tis). By right of
property.
927
jure proprio (proh-pree-oh). By one's own proper
right.
jure repraesentationis (rep-r,,-zen-tay-shee-oh-nis).
By right of representation; in the right of another
person.
jure sanguinis (sang-gwi-nis). By right ofblood.
jure uxoris (<lk-sor-is). In right ofa wife.
jure gestionis (joor-ee jes-chee-oh-nis), n. [Latin "by way
ofdoing business"] A nation's acts that are essentially
commercial or private, in contrast to its public or gov
ernmental acts. _ Under the Foreign Sovereign Immu
nities Act, a foreign country's immunity is limited to
claims involVing its public acts. The statutory immunity
does not extend to claims arising from the private or
commercial acts ofa foreign state. 28 USCA 1605. Cf.
JURE IMPERII. See COMMERCIAL-ACTIVITY EXCEPTION;
RESTRICTIVE PRINCIPLE OF SOVEREIGN IMMUNITY.
jure imperii (joor-ee im-peer-ee-I), n. [Latin "by right
of sovereignty"] The public acts that a nation under
takes as a sovereign state, for which the sovereign is
usu. immune from suit or liability in a foreign country.
Cf. JURE GESTIONIS; COMMERCIAL-ACTIVITY EXCEPTION.
See RESTRICTIVE PRINCIPLE OF SOVEREIGN IMMUNITY.
jure naturae. 1. See EX JURE NATURAE. 2. See NATURAL
LAW.
juridical (juu-rid-i-k<ll), adj. (16c) L Of or relating to
judicial proceedings or to the administration ofjustice.
2. Ofor relating to law; legal. Also termed juridic.
Cf. NONJURIDICAL.
juridical act. See ACT.
juridical day. See DAY.
juridical double taxation. See double taxation (3) under
TAXATION.
juridical link. (1947) A legal relationship between
members of a group, such as those in a potential class
action, sufficient to make a single suit more efficient or
effective than multiple suits. Also termed juridical
relationship. [Cases: Federal Civil Procedure (;:::::: 165;
Parties (';:;:'35.13.]
juridical person. See artificial person under PERSON
(3)
jurimetrics (joor-;;l-me-triks), n. (1949) The use of sci
entific or empirical methods, including measurement,
in the study or analysis oflega! matters. -jurimetri
dan (joor-a-me-trish-<ln), jurimetricist (joor-;;l-me
tr,,-sist), n.
"A variety of contextual frames of reference have been
employed by commentators to explain and clarify the
basis for judicial decision-making. the most fundamental
aspect of the judge's job. These range from exploration of
the judge's personality to the employment of small group
theory, game theory and Guttman scaling to measure and
apprehend the nature ofjudicial decision-making. Indeed,
the disciplined effort to identify with mathematical pre
cision the decision process has been dubiously termed
'jurimetrics,''' Alexander B. Smith & Abraham S. Blumberg,
"The Problem of Objectivity," in 2 Crime and Justice 485-86
(1971). jurisdiction
juris (joor-is), adj. [Latin]!. Oflaw. 2. Ofright.
juris divini (di-vI-m). Roman law. Of divine right;
subject to divine law. -The phrase appeared in refer
ence to churches or to religiOUS items that could not
be privately sold.
juris positivii. Ofpositive law.
juris privati (pri-vay-tI). Ofprivate right; relating to
private property or private law.
juris publici (p~b-li-Sl). Of public right; relating to
common or public use, or to public law.
juriscenter (joor-;;l-sen-t<lr or joor-;;l-sen-t"r), n. Conflict
oflaws. The jurisdiction that is most appropriately con
sidered a couple's domestic center ofgravity for matri
monial purposes. [Cases: Divorce <>:::2; Marriage
3.]
jurisconsult (joor-is-kon-s<llt or -k;m-s~lt). One who is
learned in the law, esp. in civil or international law;
JURIST.
jurisdictio contentiosa (joor-is-dik-shee-oh k<'ln-ten
shee-oh-s3). [Latin] Roman law. Contentious as opposed
to voluntary jurisdiction. See contentious jurisdiction
(1) under JURISDICTION.
jurisdictio emanata (joor-is-dik-shee-oh em-a-nay-t<l).
[Law Latin "a jurisdiction emanating from the court"]
Hist. A court's inherent jurisdiction, esp. to punish a
contemner. See CONTEMNER.
jurisdictio in consentientes (joor-is-dik-shee-oh in k<ln
sen-shee-en-teez). [Law Latin "jurisdiction over parties
by virtue oftheir consent"] Scots law. Consensual juris
diction. See consent jurisdiction under JURISDICTION.
jurisdiction, n. (14c) 1. A government's general power
to exercise authority over all persons and things within
its territory; esp., a state's power to create interests that
will be recognized under common-law principles as
valid in other states <New Jersey's jurisdiction>. [Cases:
States C=>1.] 2. A court's power to decide a case or issue
a decree <the constitutional grant of federal-question
jurisdiction>. -Also termed (in sense 2) competent
jurisdiction.; (in both senses) coram judice. [Cases:
Courts C-=>3; Federal Courts C=>3.1, 161.]
"Rules of jurisdiction in a sense speak from a position
outside the court system and prescribe the authority of
the courts within the system. They are to a large extent
constitutional rules. The provisions of the U.S. Constitution
specify the outer limits of the subject-matter jurisdiction
of the federal courts and authorize Congress, within those
limits, to establish by statute the organization and jurisdic
tion of the federal courts. Thus, Article III of the Consti
tution defines the judicial power of the United States to
include cases arising under federal law and cases between
parties of diverse state citizenship as well as other catego
ries. The U.S. Constitution, particularly the Due Process
Clause, also establishes limits on the jurisdiction of the
state courts. These due process limitations traditionally
operate in two areas: jurisdiction of the subject matter
and jurisdiction over persons. Within each state, the court
system is established by state constitutional provisions or
by a combination of such provisions and implementing leg
islation, which together define the authority of the various
courts Within the system." Fleming James Jr., Geoffrey C.
Hazard Jr. & John leubsdorf. Civil Procedure 2.1, at 55
(5th ed. 2001).
jurisdiction 928
3. A geographic area within which political or judicial
authority may be exercised <the accused fled to another
jurisdiction>. 4. A political or judicial subdivision
within such |
be exercised <the accused fled to another
jurisdiction>. 4. A political or judicial subdivision
within such an area <other jurisdictions have decided
the issue differently>. Cf. VENUE. -jurisdictional,
adj.
agency jurisdiction. The regulatory or adjudicative
power of a government administrative agency over
a subject matter or matters. [Cases: Administrative
Law and Procedure ~303, 447.]
ancillary jurisdiction. (1835) A court's jurisdiction to
adjudicate claims and proceedings related to a claim
that is properly before the court. For example, ifa
plaintiff brings a lawsuit in federal court based on a
federal question (such as a claim under Title VII),
the defendant may assert a counterclaim over which
the court would not otherwise have jurisdiction (such
as a state-law claim of stealing company property).
The concept ofancillary jurisdiction has now been
codified, along with the concept of pendent juris
diction, in the supplemental-jurisdiction statute.
28 USCA 1367. See supplemental jurisdiction. Cf.
pendent jurisdiction. [Cases: Admiralty ~1(3);
Courts ~27, 201; Equity ~35; Federal Courts
~20.]
anomalous jurisdiction. (1864) 1. Jurisdiction that is
not granted to a court by statute, but that is inherent
in the court's authority to govern lawyers and other
officers ofthe court, such as the power to issue a prein
dictment order suppressing illegally seized property.
[Cases: Criminal Law ~394.5(1); Federal Courts
~7;Searches and Seizures ~84.] 2. An appellate
court's provisional jurisdiction to review the denial
ofa motion to intervene in a lower-court case, so that
if the court finds that the denial was correct, then
its jurisdiction disappears -and it must dismiss the
appeal for want ofjurisdiction -because an order
denying a motion to intervene is not a final, appeal
able order. See ANOMALOUS-JURISDICTION RULE.
[Cases: Federal Courts ~555.]
appellate jurisdiction. (18c) The power of a court to
review and revise a lower court's decision. For
example, U.S. Const. art. III, 2 vests appellate
jurisdiction in the Supreme Court, while 28 USCA
1291-1295 grant appellate jurisdiction to lower
federal courts of appeals. Cf. original jurisdiction.
[Cases: Appeal and Error ~17; Courts ~203-209;
Federal Courts ~541.]
arising-in jurisdiction. A bankruptcy court's juris
diction over issues relating to the administration of
the bankruptcy estate, and matters that occur only
in a bankruptcy case. 28 USCA 157, 1334. [Cases:
Bankruptcy ~2043-2063.]
assistant jurisdiction. The incidental aid provided by
an equity court to a court oflaw when justice requires
both legal and equitable processes and remedies.
Also termed auxiliary jurisdiction. common-law jurisdiction. 1. A place where the legal
system derives fundamentally from the English
common-law system <England, the United States,
Australia, and other common-law jurisdictions>. 2.
A court's jurisdiction to try such cases as were cogni
zable under the English common law <in the absence
ofa controlling statute, the court exercised common
law jurisdiction over those claims>.
complete jurisdiction. A court's power to decide
matters presented to it and to enforce its decisions.
[Cases: Admiralty ~5(3); Courts ~1; Equity ~
39.]
concurrent jurisdiction. (l7c) 1. Jurisdiction that might
be exercised simultaneously by more than one court
over the same subject matter and within the same ter
ritory, a litigant having the right to choose the court
in which to file the action. [Cases: Admiralty ~1(1);
Courts ~472,489, 510; Federal Courts ~1131.] 2.
Jurisdiction shared by two or more states, esp. over
the physical boundaries (such as rivers or other bodies
ofwater) between them. -Also termed coordinate
jurisdiction; overlapping jurisdiction. Cf. exclusive
jurisdiction.
"In several cases, two States divided by a river exercise
concurrent jurisdiction over the river, no matter where the
interstate boundary may be; in some cases by the Ordi
nance of 1787 for organizing Territories northwest of the
Ohio River, in some cases by Acts of Congress organizing
Territories or admitting States, and in some cases byagree
ments between the States concerned." 1Joseph H. Beale, A
Treatise on the Conflict of Laws 44.3, at 279 (1935).
consent jurisdiction. (1855) Jurisdiction that parties
have agreed to, either by accord, by contract, or by
general appearance . Parties may not, by agreement,
confer subject-matter jurisdiction on a federal court
that would not otherwise have it. [Cases: Courts ~
22.]
contentious jurisdiction. 1. A court's jurisdiction
exercised over disputed matters. 2. Eccles. law. The
branch ofecclesiastical-court jurisdiction that deals
with contested proceedings.
continuing jurisdiction. (1855) A court's power to
retain jurisdiction over a matter after entering a
judgment, allowing the court to modify its previous
rulings or orders. See CONTINUING-JURISDICTION
DOCTRINE. [Cases: Courts ~30; Federal Courts
~26.1.]
coordinate jurisdiction. See concurrent jurisdiction.
criminal jurisdiction. (16c) A court's power to hear
criminal cases. [Cases: Criminal Law ~83.]
default jurisdiction. Family law. In a child-custody
matter, jurisdiction conferred when it is in the best
interests of the child and either (1) there is no other
basis for jurisdiction under the Uniform Child
Custody Jurisdiction Act or the Parental Kidnap
ping Prevention Act, or (2) when another state has
declined jurisdiction in favor ofdefault jurisdiction.
Jurisdiction is rarely based on default because either
home-state jurisdiction or significant-connection
929 jurisdiction
jurisdiction almost always applies, or else emergency
jurisdiction is invoked. Default jurisdiction arises
only if none of those three applies, or a state with
jurisdiction on any ofthose bases declines to exercise
it and default jurisdiction serves the best interests of
the child. [Cases: Child Custody C=>730, 731.]
delinquency jurisdiction. The power of the court to
hear matters regarding juvenile acts that, ifcommit
ted by an adult, would be criminaL Cf. status-offense
jurisdiction. [Cases: Infants'C=> 196.]
diversity jurisdiction. (1927) A federal court's exercise
of authority over a case involving parties who are
citizens ofdifferent states and an amount in contro
versy greater than a statutory minimum. 28 USCA
1332. See DIVERSITY OF CITIZENSHIP; AMOUNT IN
CONTROVERSY. [Cases: Federal Courts (;::::281-360.]
emergency jurisdiction. Family law. A court's ability to
take jurisdiction of a child who is phYSically present in
the state when that child has been abandoned or when
necessary to protect the child from abuse. -Section
3(a)(3) of the Uniform Child Custody Jurisdiction Act
allows for emergency jurisdiction. It is usu. tempo
rary, lasting only as long as is necessary to protect the
child. [Cases: Child CustodyC=>753.]
equity jurisdiction. (lSc) In a common-law judicial
system, the power to hear certain civil actions accord
ing to the procedure of the court of chancery, and
to resolve them according to equitable rules. [Cases:
Equity Federal Courts C=>7.J
"[Tlhe term equity jurisdiction does not refer to jurisdiction
in the sense of the power conferred by the sovereign on
the court over specified subjectmatters or to jurisdiction
over the res or the persons of the parties in a particular
proceeding but refers rather to the merits. The want of
equity jurisdiction does not mean that the court has no
power to act but that it should not act, as on the ground,
for example, that there is an adequate remedy at law."
William Q. de Funiak, Handbook of Modern Equity 38 (2d
ed.1956).
exclusive jurisdiction. (lSc) A court's power to adju
dicate an action or class ofactions to the exclusion of
all other courts <federal district courts have exclusive
jurisdiction over actions brought under the Securities
Exchange Act>. Cf. concurrent jurisdiction. [Cases:
Courts ~"-::J472, 4S9, 510; Equity Federal
Courts 1131.J
extraterritorial jurisdiction. (ISIS) A court's ability
to exercise power beyond its territorial limits. See
LONG-ARM STATUTE. [Cases: Courts Federal
Courts
federal jurisdiction. (1S00) 1. The exercise of federal
court authority. [Cases: Federal Courts C:";)3.1.] 2. The
area ofstudy dealing with the jurisdiction of federal
courts.
federal-juvenile-delinquency jurisdiction. A federal
court's power to hear a case in which a person under
the age of IS violates federal law. -In such a case, the
federal court derives its jurisdictional power from 18
USCA 5031 et seq. The Act severely limits the scope
offederal-juvenile-delinquency jurisdiction because Congress recognizes that juvenile delinquency is
essentially a state issue. The acts that typically invoke
federal jurisdiction are (I) acts committed on federal
lands (military bases, national parks, Indian reserva
tions), and (2) acts that violate federal drug laws or
other federal criminal statutes.
federal-question jurisdiction. (I941) The exercise of
federal-court power over claims arising under the
U.S. Constitution, an act of Congress, or a treaty 28
USCA 1331. [Cases: Federal Courts C=>161-247.J
foreign jurisdiction. (l6c) 1. The powers of a court of
a sister state or foreign country. 2. Extraterritorial
process, such as long-arm service ofprocess.
general jurisdiction. (16c) 1. A court's authority to
hear a wide range of cases, civil or criminal, that
arise within its geographic area. [Cases: Courts
117.5-158.1; Federal Courts ~3.1,76.5.]2. A court's
authority to hear all claims against a defendant, at
the place of the defendant's domicile or the place of
service, without any showing that a connection exists
between the claims and the forum state. Cf. limited
jurisdiction; specific jurisdiction. [Cases: Courts
12(2.5); Federal Courts C=>76.1O.J
general personal jurisdiction. Jurisdiction arising
when a person's continuous and systematic contacts
with a forum state enable the forum state's courts to
adjudicate a claim against the person, even when the
claim is not related to the person's contacts with the
forum state. Cf. personal jurisdiction; specific personal
jurisdiction. [Cases: Courts 12(2.5); Federal
Courts
home-state jurisdiction. Family law. In interstate child
custody disputes governed by the Uniform Child
Custody Jurisdiction and Enforcement Act, jurisdic
tion based on the child's having been a resident of
the state for at least six consecutive months immedi
ately before the commencement ofthe suit. See HOME
STATE. [Cases: Child Custody
in personam jurisdiction. See personal jurisdiction.
in rem jurisdiction (in rem). (1930) A court's power
to adjudicate the rights to a given piece of property,
including the power to seize and hold it. -Also
termed jurisdiction in rem. See IN REM. Cf. personal
jurisdiction; subject-matter jurisdiction. [Cases:
Courts C=;'18-19; Federal Courts
international jurisdiction. A court's power to hear
and determine matters between different countries
or persons ofdifferent countries.
judicial jurisdiction. The legal power and authority of
a court to make a decision that binds the parties to
any matter properly brought before it.
jurisdiction in personam. See personal jurisdiction.
jurisdiction in rem. See in rem jurisdiction.
jurisdiction loci. See spatial jurisdiction.
jurisdiction ofthe person. See personal jurisdiction.
jurisdiction over the person. See personal jurisdiction.
jurisdiction 930
jurisdiction quasi in rem. See quasi-In-rem jurisdic
tion.
jurisdiction ratione materiae. See subject-matter juris
diction.
jurisdiction ratione personae. See personal jurisdic
tion.
jurisdiction ratione temporis. See temporal jurisdic
tion.
legislative jurisdiction. A legislature's general sphere
of authority to enact laws and conduct all business
related to that authority, such as holding hearings.
[Cases: States
limitedjurisdiction. (I6c) Jurisdiction that is confined
to a particular type of case or that may be exercised
only under statutory limits and prescriptions. Also
termed speCial jurisdiction. Cf. general jurisdiction.
[Cases: Courts ~159; Federal Courts ~5.]
"It is a principle of first importance that the federal courts
are courts of limited jurisdiction .... The federal courts ...
cannot be courts of general jurisdiction. They are empow
ered to hear only such cases as are within the judicial power
of the United States, as defined in the Constitution, and
have been entrusted to them by a jurisdictional grant by
Congress." Charles Alan Wright, The Law ofFederal Courts
7, at 27 (5th ed. 1994).
long-arm jurisdiction. Jurisdiction over a nonresident
defendant who has had some contact with the juris
diction in which the petition is filed. [Cases: Courts
C::::o 12(2); Federal Courts
original jurisdiction. (17c) A court's power to hear |
C::::o 12(2); Federal Courts
original jurisdiction. (17c) A court's power to hear and
decide a matter before any other court can review the
matter. Cf. appellate jurisdiction. [Cases: Courts ~
117.5-158.1,206; Federal Courts ~3.1.]
overlappingjurisdiction. See concurrent jurisdiction.
pendentjurisdiction (pen-d~nt). (1942) A court's juris
diction to hear and determine a claim over which it
would not otherwise have jurisdiction, because the
claim arises from the same transaction or occurrence
as another claim that is properly before the court.
For example, ifa plaintiff brings suit in federal court
claiming that the defendant, in one transaction,
violated both a federal and a state law, the federal
court has jurisdiction over the federal claim (under
federal-question jurisdiction) and also has jurisdic
tion over the state claim that is pendent to the federal
claim. Pendent jurisdiction has now been codified as
supplemental jurisdiction. 28 USCA 1367. -Also
termed pendent-claim jurisdiction. See supplemental
jurisdiction. Cf. ancillary jurisdiction. [Cases: Courts
Cr~27; Equity Federal Courts Cr'-:::>14.]
pendent-party jurisdiction. (1973) A court's jurisdic
tion to adjudicate a claim against a party who is not
otherwise subject to the court's jurisdiction, because
the claim by or against that party arises from the
same transaction or occurrence as another claim that
is properly before the court. Pendent-party juris
diction has been a hotly debated subject, and was
severely limited by the U.S. Supreme Court in Finley
v. United States, 490 U.S. 545, 109 S.Ct. 2003 (1990). The concept is now codified in the supplemental
jurisdiction statute, and it applies to federal-question
cases but not to diversity-jurisdiction cases. 28 USCA
1367. Neither pendent-party jurisdiction nor supple
mental jurisdiction may be used to circumvent the
complete-diversity requirement in cases founded on
diversity jurisdiction. See supplemental jurisdiction.
[Cases: Federal Courts ~'23.]
personal jurisdiction. A court's power to bring a
person into its adjudicative process; jurisdiction
over a defendant's personal rights, rather than merely
over property interests. Also termed in personam
jurisdiction; jurisdiction in personam; jurisdiction of
the person; jurisdiction over the person; jurisdiction
ratione personae. See IN PERSONAM. Cf. in rem juris
diction; general personal jurisdiction; specific personal
jurisdiction. [Cases: Admiralty Constitutional
Law ~3963-3965; Courts ~10; Federal Courts
~71-97.1
plenary jurisdiction (plee-n~-ree or plen-;>-ree). A
court's full and absolute power over the subject matter
and the parties in a case.
primaryjurisdiction. The power of an agency to decide
an issue in the first instance when a court, having
concurrent jurisdiction with the agency, determines
that it would be more pragmatic for the agency to
handle the case initially. See PRIMARY-JURISDICTION
DOCTRINE. [Cases: Administrative Law and Proce
dure~3228.1.]
'The doctrine of primary jurisdiction typically is raised,
not in a proceeding before an administrative agency, but
in litigation before a court. Agency and court jurisdiction
to resolve disputes and issues frequently overlap. Primary
jurisdiction is a concept used by courts to allocate initial
decision-making responsibility between agencies and
courts where such overlaps exist... , A holding that an
agency has primary jurisdiction to resolve an issue raised
in ajudicial proceeding has two important consequences.
First, it transfers some of the power to resolve that issue
to the agency.... Second, if the issues referred to the
agency as within its primary jurisdiction are critical to
judicial resolution of the underlying dispute, the court
cannot proceed with the trial of the case until the agency
has resolved those issues and the agency's decision has
been either affirmed or reversed by a reviewing court."
Richard j. Pierce Jr. et aI., Administrative Law Process 206,
20708 (3d ed. 1999).
probate jurisdiction. Jurisdiction over matters relating
to wills, settlement ofdecedents' estates, and (in some
states) guardianship and the adoption of minors.
[Cases: Courts <>.j198; Federal Courts ~9.]
prorogated jurisdiction. Civil law. Jurisdiction con
ferred by the express consent of all the parties on a
judge who would otherwise be disqualified. Cf. tacit
prorogation under PROROGATION.
quasi-in-rem jurisdiction (kway-sI in rem or kway-zI).
(1918) Jurisdiction over a person but based on that
person's interest in property located within the court's
territory. -Also termed jurisdiction quasi in rem.
See quasi in rem under IN REM. [Cases: Courts
16; Federal Courts (';:;:>93.]
931 jurisdiction clause
significant-connection jurisdiction. Family law. In a I criminal case without referring it to the Crown Court
child-custody matter, jurisdiction based on (1) the
best interests of the child, (2) at least one parent's (or
litigant's) significant connection to the state, and (3)
the presence in the state ofsubstantial evidence about
the child's present or future care, protection, training,
and personal relationships. _ This type ofjurisdic
tion is conferred by both the Uniform Child Custody
Jurisdiction Act and the Parental Kidnapping Pre
vention Act. Generally, the home state will also be
the state with Significant connections and substantial
evidence. Jurisdiction based on a Significant connec
tion or substantial evidence alone is conferred only
when the child has no home state. Also termed
significant-connectionlsubstantial-evidence jurisdic
tion; significant connection-substantial evidence juris
diction; substantial-evidence jurisdiction. See HOME
STATE. [Cases: Child Custody (;::::J735.]
spatial jurisdiction. Jurisdiction based on the physical
territory that an entity's authority covers. Also
termed jurisdiction loci.
special jurisdiction. See limited jurisdiction.
specific jurisdiction. (1828) Jurisdiction that stems
from the defendant's having certain minimum
contacts with the forum state so that the court may
hear a case whose issues arise from those minimum
contacts. Cf. general jurisdiction. [Cases: Courts
12(2.10); Federal Courts (;::::J76.1O.]
specific personal jurisdiction. Jurisdiction based on
a person's minimum contacts with the forum state
when the claim arises out of or is related to those
contacts. See MINIMUM CONTACTS. Cf. personal juris
diction; general personal jurisdiction. [Cases: Courts
G=-12(2.1O); Federal Courts (;::::J76.1O.)
state jurisdiction. 1. The exercise ofstate-court author
ity. 2. A court's power to hear all matters, both civil
and criminal, arising within its territorial boundar
ies.
status-offense jurisdiction. The power of the court to
hear matters regarding noncriminal conduct com
mitted by a juvenile. See status offense under OFFENSE
(l). Cf. delinquency jurisdiction.
subject-matter jurisdiction. (1936) Jurisdiction over
the nature of the case and the type of relief sought;
the extent to which a court can rule on the conduct
of persons or the status of things. -Also termed
jurisdiction ofthe subject matter; jurisdiction ofthe
cause;jurisdiction over the action;jurisdiction ratione
materiae. Cf. personal jurisdiction. [Cases: Courts (;::::J
4; Federal Courts C=~'3.1.1
summary jurisdiction. (18c) 1. A court's jurisdiction
in a summary proceeding. 2. The court's authority
to issue a judgment or order (such as a finding of
contempt) without the necessity of a trial or other
process. 3. English law. A court's power to make an
order immediately, without obtaining authority or
referral, as in a magistrate's power to dispose of a for a formal trial or without drawing a jury.
supplemental jurisdiction. (1836) Jurisdiction over a
claim that is part of the same case or controversy as
another claim over which the court has original juris
diction. Since 1990, federal district courts have had
supplemental jurisdiction which includes jurisdic
tion over both ancillary and pendent claims. 28 USCA
1367. See ancillary jurisdiction; pendent jurisdiction.
[Cases: Courts (;::::J27; EquityG':::::>35; Federal Courts
G:='14.J
temporal jurisdiction. Jurisdiction based on the court's
having authority to adjudicate a matter when the
underlying event occurred. -Also termed jurisdic
tion ratione temporis.
territorial jurisdiction. 1. Jurisdiction over cases
arising in or involVing persons residing within a
defined territory. [Cases: Courts C=:->29, 171; Federal
Courts (;::::J71.] 2. Territory over which a government,
one of its courts, or one of its subdivisions has juris
diction.
transient jurisdiction (tran-shant). Personal jurisdic
tion over a defendant who is served with process while
in the forum state only temporarily (such as during
travel). [Cases: Courts G~'13.]
voluntary jurisdiction. 1. Jurisdiction exercised
over unopposed matters. 2. Eccles. law. Jurisdic
tion that does not require a judicial proceeding, as
with granting a license or installing a nominee to a
benefice.
jurisdictional amount. See AMOUNT IN CONTROVERSY.
jurisdictional discovery. See DISCOVERY.
jurisdictional fact. See FACT.
jurisdictional-fact doctrine. Administrative law. The
principle that if evidence is presented challenging the
factual findings that triggered an agency's action, then
a court will review the facts to determine whether the
agency had authority to act in the first place. -This
doctrine is generally no longer applied. Cf. CONS'fITU
TIONAL-FACT DOCTRINE. [Cases: Administrative Law
and Procedure C='795.j
jurisdictional gerrymandering. See GERRYMANDER
ING (2).
jurisdictional limits. (1800) The geographic boundaries
or the constitutional or statutory limits within which a
court's authority may be exercised.
jurisdiction loci. See spatial jurisdiction under JURIS
DICTION.
jurisdictional plea. See PLEA (3).
jurisdictional statement. See JURISDICTION CLAUSE (1).
jurisdictional strike. See STRIKE.
jurisdiction clause. (1861) 1. At law, a statement in a
pleading that sets forth the court's jurisdiction to act
in the case. Also termed jurisdictional statement. 2.
Equity practice. The part of the bill intended to show
that the court has jurisdiction, usu. by an averment
932 jurisdiction in personam
that adequate relief is unavailable outside equitable
channels.
jurisdiction in personam. See personal jurisdiction
under JURISDICTION.
jurisdiction in rem. See in rem jurisdiction under JURIS
DICTIO)'!.
jurisdiction is fundandae (joor-is-dik-shee-oh-nis f;m
dan-dee). [Law Latin] Scots law. For the purpose of
founding jurisdiction. See ARRESTUM rURISDICTIONIS
FUNDANDAE CAUSA.
jurisdiction ofthe cause. See subject-matter jurisdiction
under JURISDICTION.
jurisdiction of the person. See personal jurisdiction
under JURISDICTION.
jurisdiction of the subject matter. See subject-matter
jurisdiction under JURISDICTION.
jurisdiction over the action. See subject-matter jurisdic
tion under JURISDICTION.
jurisdiction over the person. See personal jurisdiction
under JURISDICTION.
jurisdiction quasi in rem. See quasi-in-rem jurisdiction
under JURISDICTION.
jurisdiction ratione materiae. See subject-matter juris
diction under JURISDICTION.
jurisdiction ratione personae. See personal jurisdiction
under JURISDICTION.
jurisdiction ratione temporis. See temporal jurisdiction
under JURISDICTION.
jurisdictio 1'oluntaria (joor-is-dik-shee-oh vol-;m-tair
ee-,,). [Latin] Roman law. Voluntary jurisdiction. See
voluntary jurisdiction under JURISDICTION.
Juris Doctor (joor-is dok-t<lr). (IS95) Doctor oflaw the
law degree most commonly conferred by an American
law school. -Abbr. J.D. Also termed Doctor ofJuris
prudence; Doctor ofLaw. Cf. MASTER OF LAWS; LL.B.;
LL.D.; DOCTOR OF LAWS.
juris et de jure (joor-is et dee joor-ee). [Latin] Oflaw
and of right <a presumption juris et de jure cannot be
rebutted>.
jurisinceptor (joor-is-in-sep-t<lr). [Latin] Rist. A student
ofthe civil law.
jurisperitus (joor-is-p"-rI-t,,s), adj. [Latin] (Of a person)
skilled or learned in law. See LEGISPERITUS.
juris positi1'ii. See JURIS.
juris privati. See JURIS.
jurisprude (joor-is-prood), n. (1937) 1. A person who
makes a pretentious display oflegal knowledge or who
is overzealous about the importance oflegal doctrine.
2. JURISPRUDENT.
jurisprudence (joor-is-prood-"nts), n. (17c) 1. Origi
nally (in the 18th century), the study of the first prin
ciples of the law of nature, the civil law, and the law of
nations. Also |
th century), the study of the first prin
ciples of the law of nature, the civil law, and the law of
nations. Also termed jurisprudentia naturalis (joor
is-proo-den-shee-" nach-,,-ray-lis). 2. More modernly, the study of the general or fundamental elements of
a particular legal system, as opposed to its practical
and concrete details. 3. The study oflegal systems in
general. 4. Judicial precedents considered collectively.
5. In German literature, the whole oflegal knowledge.
6. A system, body, or division oflaw. 7. CASELAW.
"Jurisprudence addresses the questions about law that an
intelligent layperson of speculative bent not a lawyer
might think particularly interesting. What is law? ... Where
does law come from? ... Is law an autonomous disci
pline? ... What is the purpose of law? . , . Is law a science,
a humanity, or neither? ... A practicing lawyer or ajudge
is apt to think questions of this sort at best irrelevant to
what he does, at worst naive, impractical, even childlike
(how high is up?)." Richard A. Posner, The Problems ofJuris
prudence 1 (1990).
analytical jurisprudence. (1876) A method of legal
study that concentrates on the logical structure oflaw,
the meanings and uses ofits concepts, and the formal
terms and the modes ofits operation.
censorial jurisprudence. See LAW REFORM.
comparati1'ejurisprudence. See COMPARATIVE LAW.
equity jurisprudence. (1826) 1. The legal science
treating the rules, principles, and maxims that govern
the decisions of a court of equity. 2. The cases and
controversies that are considered proper subjects of
equity. 3. The nature and form ofthe remedies that
equity grants.
ethical jurisprudence. (1S26) TI1e branch oflegal phi
losophy concerned with the law from the viewpoint
of its ethical significance and adequacy . This area
of study brings together moral and legal philoso
phy. -Also termed (in German) Rechtsphilosophie;
(in French) philo sophie du droit.
expository jurisprudence. (ISc) The scholarly expo
sition of the contents of an actual legal system as it
now exists or once existed. Also termed systematic
jurisprudence.
feminist jurisprudence. (1978) A branch of jurispru
dence that examines the relationship between women
and law, including the history of legal and social
biases against women, the elimination ofthose biases
in modern law, and the enhancement ofwomen's legal
rights and recognition in society.
''The first published use of the phrase 'feminist jurispru
dence' occurred in 1978 when Professor Ann Scales pub
lished an article called Toward a Feminist Jurisprudence.
Feminist legal theory is diverse, and anything but mono
lithic. Many feminists believe that it is difficult to general
ize about feminist jurisprudence. It is, however, possible
to understand feminist legal theory as a reaction to the
jurisprudence of modern legal scholars (primarily male
scholars) who tend to see law as a process for interpret
ing and perpetuating a universal, gender-neutral public
morality. Feminist legal scholars, despite their differences,
appear united in claiming that 'masculine' jurisprudence of
'all stripes' fails to acknowledge, let alone respond to. the
interests, values, fears, and harms experienced by women."
Gary Minda, Postmodern Legal Movements 129-30 (1995).
general jurisprudence. (18c) 1. The scholarly study of
the fundamental elements ofa given legal system.
Also termed jurisprudentia generalis.
933
"The term 'general jurisprudence' involves the mislead
ing suggestion that this branch of legal science is that
which relates not to any single system of law, but to those
conceptions and principles that are to be found in ali devel
oped legal systems, and which are therefore in this sense
general. It is true that a great part of the matter with which
it is concerned is common to all mature systems of law. All
of these have the same essential nature and purposes, and
therefore agree to a large extent in their first principles. But
it is not because of universal reception that any principles
pertain to the theory or philosophy of law. For this purpose
such reception is neither sufficient nor necessary. Even if
no system in the world save that of England recognised
the legislative efficacy of judicial precedents, the theory
of case-law would none the less be a fit and proper subject
of general jurisprudence. Jurisprudentia generalis is not
the study of legal systems in general, but the study of
the general or fundamental elements of a particular legal
system." John Salmond, JurispF'Udence 3 n.(b) (Glanville L.
Williams ed., 10th ed. 1947).
2. The scholarly study of the law, legal theory, and
legal systems generally. -Also termed jurisprudentia
universalis;philosophy oflaw; legal philosophy.
"According to Austin (1790-1859), general jurisprudence
is the study of the 'principles, notions and distinctions'
common to the maturer systems of law." Rupert Cross &
JW_ Harris, Precedent in English Law 2 (4th ed. 1991).
historical jurisprudence. (1823) 1he branch ofIegal
philosophy concerned with the history of the first
principles and conceptions ofa legal system, dealing
with (1) the general principles governing the origin
and development oflaw, and (2) the origin and devel
opment of the legal system's first principles.
"Historical jurisprudence was a passive restraining mode
of thought on legal subjects by way of reaction from the
active creative thought of the era of philosophy. It was a
reaction, too, from the confident disregard of traditional
legal institutions and conditions of time and place which
characterized the French Revolution. We were not ready
for it in the fore part of the last century. But we accepted it
eagerly toward the end of that century when it was already
moribund in Europe." Roscoe Pound, The Formative Era of
American Law 113 (1938).
jurisprudence constante (bn-stan-tee). Civil law. The
doctrine that a court should give great weight to a
rule oflaw that is accepted and applied in a long line
of cases, and should not overrule or modify its own
decisions unless clear error is shown and injustice will
arise from continuation ofa particular rule oflaw .
Civil-law courts are not bound by the common-law
doctrine of stare decisis. But they do recognize the
doctrine ofjurisprudence constante, which is similar
to stare decisis, one exception being that jurispru
dence constante does not command strict adherence
to a legal principle applied on one occasion in the
past. Cf. STARE DECISIS_ [Cases: Courts (>='89.]
jurisprudence ofconceptions. (1908) The extension
of a maxim or definition, usu. to a logical extreme,
with relentless disregard for the consequences .
The phrase appears to have been invented by Roscoe
Pound. See Mechanical Jurisprudence, 8 Colum. L.
Rev. 605, 608 (1908)_
normative jurisprudence. See NATURAL LAW (2). juror
particular jurisprudence. (I8c) The scholarly study of
the legal system within a particular jurisdiction, the
focus being on the fundamental assumptions of that
system only.
positivist jurisprudence. (1931) A theory that denies
validity to any law that is not derived from or sanc
tioned by a sovereign or some other determinate
source. Also termed positivistic jurisprudence.
sociological jurisprudence. (1907) A philosophical
approach to law streSSing the actual social effects of
legal institutions, doctrines, and practices. This
influential approach was started by Roscoe Pound in
1906 and became a precursor to legal realism. -Also
termed sociology oflaw. See LEGAL REALISM.
systematic jurisprudence. See expository jurispru
dence.
therapeutic jurisprudence. The study of the effects of
law and the legal system on the behavior, emotions,
and mental health ofpeople; esp., a multidisciplinary
examination of how law and mental health interact.
This discipline originated in the late 1980s as an
academic approach to mental-health law.
jurisprudent, n. (17c) A person learned in the law; a spe
cialist in jurisprudence. -Also termed jurisprude.
jurisprudentia generalis. See general jurisprudence (1)
under JURISPRUDENCE.
jurisprudential (joor-is-proo-den-sh;}l), adj. Of or
relating to jurisprudence.
jurisprudentia naturalis. See JURISPRUDENCE (1).
jurisprudentia universalis. Seegeneral jurisprudence (2)
under JURISPRUDENCE.
juris publici. See JURIS.
jurist. (ISc) 1. A person who has thorough knowledge
of the law; esp., a judge or an eminent legal scholar.
Also termed legist. 2. JURISPRUDENT.
juristic, adj. (1831) 1. Of or relating to a jurist <juristic
literature>. 2. Ofor relating to law <a corporation is a
typical example of a juristic person>. Also termed
juristical.
juristic act. See act in the law under ACT.
juristic person. See artificial person under PERSON (3).
Juris utriusque Doctor. See J.U.D.
juror (joor-;-Jr also joor-or). (14c) A person serving on a
jury panel. -Also formerly termed layperson.
grand juror. A person serving on a grand jury.
petitjuror (pet-ee). A trial jUfor, as opposed to a grand
juror.
presidingjuror. The juror who chairs the jury during
deliberations and speaks for the jury in court by
announcing the verdict. The presiding juror is usu.
elected by the jury at the start ofdeliberations. -Also
termed foreman;foreperson;{in Scots law) jury chan
cellor. [Cases: Jury C:::> 147.]
934 juror misconduct
stealth juror. A juror, esp. one in a high-profile case,
who deliberately fails to disclose a relevant bias in
order to qualify as a juror and bases a decision on that
bias rather than on the facts and law. Although a
stealth juror may be fined or prosecuted for perjury
based on a lie or omission, the usual penalty is only
removal from the jury.
tales-juror (tay-leez- or taylz-joor-<lr). See TALESMA",".
juror misconduct. See MISCO","DUCT.
jury, n. (15c) A group of persons selected according to
law and given the power to decide questions offact and
return a verdict in the case submitted to them. In
certain contexts, jury embraces any fact-trier, includ
ing an arbitrator or a trial judge sitting in a nonjury
proceeding. -Also termed empaneled jury; impan
eledjury.
advisory jury. (1892) A jury empaneled to hear a case
when the parties have no right to a jury trial. See Fed.
R. Civ. P. 39(c). The judge may accept or reject the
advisory jury's verdict. [Cases: Federal Civil Proce
dure (;:J2252; Trial (;:J369.]
blue-ribbon jury. (1940) A jury consisting of jurors
who are selected for their special qualities, such as
advanced education or special training, sometimes
used in a complex civil case (usu. by stipulation ofthe
parties) and sometimes also for a grand jury (esp. one
investigating governmental corruption) . A blue
ribbon jury is not allowed in criminal trials because
it would violate the defendant's right to trial by a jury
ofpeers. An even more elite group ofjurors, involving
specialists in a technical field, is called a blue-blue
ribbon jury.
common jury. See petit jury.
coroner's jury. (17c) A jury summoned by a coroner
to investigate the cause of death. [Cases: Coroners
(::::.)12.]
deadlocked jury. See hung jury.
death-qualified jury. Criminal law. A jury that is fit
to decide a case involving the death penalty because
the jurors have no absolute ideological bias against
capital punishment. Cf.lije-qualified jury. [Cases: Jury
(::=33(2.15).]
fair and impartial jury. See impartial jury.
foreign jury. A jury obtained from a jurisdiction other
than that in which the case is brought. [Cases: Jury
good jury. See speCial jury.
grand jury. See GRAND JURY.
homage jury. Hist. A jury in a court baron, conSisting
of tenants who made homage to the lord. See COURT
BARON.
hungjury. (1854) A jury that cannot reach a verdict by
the required voting margin. Also termed dead
locked jury.
impartial jury. (17c) A jury that has no opinion about
the case at the start of the trial and that bases its verdict on competent legal evidence. Also termed
fair and impartial jury. [Cases: Jury
inquest jury. (1873) A jury summoned from a particu
lar district to appear before a sheriff, coroner, or other
ministerial officer and inquire about the facts con
cerning a death. See INQUEST. Also termed jury of
inquest. [Cases: Coroners
jury de medietate linguae (dee mee-dee-<l-tay-tee ling
gwee). [Latin "jury of halfness oflanguage"] Hist. A
jury made up ofhalf natives and half aliens, allowed
when one ofthe parties is an alien.
jury ofindictment. See GRAND JURY |
half aliens, allowed
when one ofthe parties is an alien.
jury ofindictment. See GRAND JURY.
jury ofinquest. See inquest jury.
jury ofmatrons. Hist. A jury of"discreet and lawful
women" impaneled to try a question of pregnancy,
as when a woman sentenced to death pleads, in stay
of execution, that she is pregnant.
jury ofthe vicinage (vis-~-nij). 1. At common law, a
jury from the county where the crime occurred. 2.
A jury from the county where the court is held. See
VICINAGE. [Cases: Jury (::=33(3).]
life-qualified jury. Criminal law. In a case involving a
capital crime, a jury selected from a venire from which
the judge has excluded anyone unable or unwilling to
consider a sentence oflife imprisonment, instead of
the death penalty, if the defendant is found guilty. Cf.
death-qualified jury. [Cases: Jury (;:J33(2.15).]
mixed jury. (1878) A jury composed of both men and
women or persons ofdifferent races. [Cases: Jury (;:J
8.]
petit jury (pet-ee). (15c) A jury (usu. consisting of6 or
12 persons) summoned and empaneled in the trial of
a specific case. Also termed petty jury; trial jury;
common jury; traverse jury. Cf. GRAND JURY.
police jury. See POLICE JURY.
presentingjury. See GRAND JURY.
rogue jury. A jury that ignores the law and evidence in
reaching a capricious verdict. Rogue juries include
those that base their verdicts on unrevealed, deeply
held prejudices; on undue sympathy or antipathy
toward a party; or on chance (as by tossing a coin).
The verdicts often result in inappropriate awards,
punishments, convictions, or acquittals. Unlike jury
nullification, a rogue jury's verdict is not based on a
desire to achieve a just, fair, or moral outcome. Cf.
JURY NULLIFICATION.
shadow jury. (1974) A group of mock jurors paid to
observe a trial and report their reactions to a jury
consultant hired by one of the litigants . The shadow
jurors, who are matched as closely as possible to the
real jurors, provide counsel with information about
the jury's likely reactions to the trial. Also termed
phantom jury.
sheriff's jury. Hist. A jury selected and summoned by a
sheriff to hold inquests for various purposes, such as
assessing damages in an action in which the defendant
935
makes no defense or ascertaining the mental condi
tion ofan alleged lunatic.
special jury. (l7c) 1. A jury chosen from a panel that
is drawn specifically for that case. Such a jury is
usu. empaneled at a party's request in an unusually
important or complicated case. Also termed struck
jury. See STRIKING A JURY. [Cases: Jury (;=>6, 71.] 2.
At common law, a jury composed ofpersons above
the rank ofordinary freeholders, usu. summoned to
try more important questions than those heard by
ordinary juries. Also termed good jury.
struck jury. (i8c) 1. A jury selected by allowing the
parties to alternate in striking from a list any person
whom a given party does not wish to have on the
jury, until the number is reduced to the appropriate
number (traditionally 12). See STRIKING A JURY. 2. See
special jury (1). [Cases: Jury (;=>6, 71.]
traverse jury. See petit jury.
trial jury. See petit jury.
jury box. The enclosed part of a courtroom where the
jury sits. Also spelled jury-box.
jury challenge. See CHALLENGE (2).
jury chancellor. See presidingjuror under JUROR.
jury charge. (1883) 1. JURY INSTRUCTION. 2. A set ofjury
instructions. -Often shortened to charge.
jury commissioner. See COMMISSIONER.
jury direction. See JURY INSTRUCTION.
jury duty. (1829) 1. The obligation to serve on a jury. 2.
Actual service on a jury. -Also termed jury service.
jury fee. See FEE (1).
jury-fixing. (1887) The act or an instance of illegally
procuring the cooperation of one or more jurors who
actually influence the outcome of the trial. -Also
termed fiXing a jury. Cf. EMBRACERY; fURY-PACKING.
jury-fixer, n.
jury instruction. (usu. pI.) (1943) A direction or gUide
line that a judge gives a jury concerning the law of the
case. Often shortened to instruction. -Also termed
jury charge; charge; jury direction; direction. [Cases:
Criminal Law (;=>769; Federal Civil Procedure
2171-2185; Trial (;=>182.J
additional instruction. (1821) A jury charge, beyond
the original instructions, that is usu. given in
response to the jury's question about the evidence or
some point oflaw. Also termed further instruction.
[Cases: Criminal Law (;:='863; Federal Civil Proce
dure (;::>1975; Trial 314(1).]
affirmative converse instruction. (1966) An instruction
presenting a hypothetical that, if true, commands a
verdict in favor of the defendant. An affirmative
converse instruction usu. begins with language such
as "your verdict must be for the defendant if you
believe ...." [Cases: Trial (;=>203(3).]
affirmative instruction. (1835) An instruction that
removes an issue from the jury's consideration, jury instruction
such as an instruction that whatever the evidence,
the defendant cannot be convicted under the indict
ment count to which the charge is directed. -Also
termed affirmative charge. [Cases: Criminal Law(;:='
754; Trial (;=>194,234(4),
argumentative instruction. (1888) An instruction
that assumes facts not in evidence, that Singles out
or unduly emphasizes a particular issue, theory, or
defense, or that otherwise invades the jury's province
regarding the weight, probative value, or sufficiency of
the evidence. [Cases: Criminal Law C='807; Federal
Civil Procedure (;=>2173.1; Trial (;=>240.]
binding instruction. See mandatory instruction.
cautionary instruction. (l881) 1. A judge's instruction
to the jurors to disregard certain evidence or consider
it for specific purposes only. [Cases: Criminal Law
(~673, 783, 783.5; Federal Civil Procedure (;=>2173;
Trial (;=>133.6(2), 207, 208.] 2. A judge's instruction
for the jury not to be influenced by outside factors and
not to talk to anvone about the case while the trial is in
progress. [Case~: Criminal LawC=>768, 852; Federal
Civil Procedure (;=>2173; Trial (;:=>201, 217.J
conscious-avoidance instruction. See willful-blindness
instruction.
curative instruction. (1890) A judge's instruction that is
intended to correct an erroneous instruction. [Cases:
Federal Civil Procedure Trial (;=>296.]
deliberate-indifference instruction. See JEWELL IN
STRUCTION.
disparaging instruction. A jury charge that discredits
or defames a party to a lawsuit.
formula instruction. (1927) Ajurycharge derived from
a standardized statement ofthe law on which the jury
must base its verdict.
further instruction. See additional instruction.
general instruction. Any jury instruction that does not
present a question or issue to be answered.
Jewell instruction. See JEWEI.L INSTRUCTION.
mandatory instruction. (1895) An instruction requir
ing a jury to find for one party and against the other if
the jury determines that, based on a preponderance of
the evidence, a given set offacts exists. -Also termed
binding instruction. [Cases: Trial (;:=234(3, 4), 253.]
model jury instruction. (1964) A form jury charge usu.
approved by a state bar association or similar group
regarding matters arising in a typical case . Courts
usu. accept model jury instructions as authorita
tive. Also termed pattern jury instruction; pattern
jury charge; model jury charge. [Cases: Criminal Law
(;=>805(1); Federal Civil Procedure (;=>2173.1; Trial
(;=>228(1).]
ostrich instruction. (1966) Criminal procedure. Slang.
An instruction stating that a defendant who delib
erately avoided acquiring actual knowledge can be
found to have acted knOWingly. Cf. JEWELL INSTRUC
TION. [Cases: Criminal Law (;=>772(5).]
936 jury list
pattern jury instruction. See model jury instruction.
peremptory instruction. (1829) A court's explicit direc
tion that a jury must obey, such as an instruction to
return a verdict for a particular party. See directed
verdict under VERDICT. [Cases: Federal Civil Proce
dure C=>2173.1, 2174; Trial C=> 167,234,253.]
single-juror instruction. (1980) An instruction stating
that if any juror is not reasonably satisfied with the
plaintiff's evidence, then the jury cannot render a
verdict for the plaintiff.
special instruction. (1807) An instruction on some par
ticular point or question involved in the case, usu.
in response to counsel's request for such an instruc
tion. -Also termed special charge.
standard instruction. (1914) A jury instruction that has
been regularly used in a given jurisdiction.
willful-blindness instruction. An instruction that an
otherwise culpable defendant may be held account
able for a crime if the defendant deliberately avoided
finding out about the crime. -Also termed con
scious-avoidance instruction. [Cases: Criminal Law
C=>772(5).]
jury list. A list of persons who may be summoned to
serve as jurors. [Cases: Jury C=>60.]
juryman. Archaic. See JUROR.
jury nullification. (1982) A jury's knowing and deliber
ate rejection ofthe evidence or refusal to apply the law
either because the jury wants to send a message about
some social issue that is larger than the case itself or
because the result dictated by law is contrary to the
jury's sense ofjustice, morality, or fairness. Cf. verdict
contrary to law under VERDICT; rogue jury under JURY.
[Cases: Criminal Law C=>731; Trial C=> 128,304.]
jury of indictment. See GRAND JURY.
jury-packing. (1887) The act or an instance of contriv
ing to have a jury composed of persons who are pre
disposed toward one side or the other. -Also termed
packing a jury. Cf. EMBRACERY; JURY-FIXING.
jury panel. See VENIRE (1).
jury pardon. (1974) A rule that permits a jury to convict
a defendant ofa lesser offense than the offense charged
ifsufficient evidence exists to convict the defendant of
either offense.
jury pool. See VENIRE (1).
jury process. (18c) 1. The procedure by which jurors are
summoned and their attendance is enforced. [Cases:
Jury C=>67.] 2. The papers served on or mailed to poten
tial jurors to compel their attendance.
jury question. (18c) 1. An issue offact that a jury decides.
See QUESTION OF FACT. [Cases: Federal Civil Procedure
C=>2141.] 2. A special question that a court may ask a
jury that will deliver a special verdict. See special inter
rogatory under INTERROGATORY. [Cases: Federal Civil
Procedure C=>2231; Trial C=>350.]
jury sequestration. See SEQUESTRATION (8). jury service. See JURY DUTY.
jury shuffle. Texas law. A process for rearranging a venire
whereby the cards with the veniremembers' names on
them are shuffled so that the veniremembers will be
seated in a different order . The prosecution and the
defense may each request a jury shuffle once before voir
dire begins. No reason for the request need be given.
After voir dire begins, neither party may request a
shuffle. [Cases: Jury C=>64.]
jury summation. See CLOSING ARGUMENT.
jury-tampering. See EMBRACERY.
jury trial. See TRIAL.
jury waiver. See WAIVER (2).
jurywheel. (1873) A physical device or electronic system
used for storing and randomly selecting names of
potential jurors. [Cases: Jury C=>65.]
jurywoman. Archaic. A female juror; esp., a member ofa
jury of matrons. See jury ofmatrons under JURY.
jus (j;)S also joos oryoos), n. [Latin "law, right"] 1. Law in
the abstract. 2. A system oflaw. 3. A legal right, power,
or principle. 4. Roman law. Man-made law . The term
usu. refers to a right rather than a statute. -Abbr. J.
Also spelled ius. Cf. FAS. PI. jura Ooor-;) also yoor-;)).
"Ius, when used in a general sense, answers to our word
Law in its widest acceptation. It denotes, not one particular
|
us, when used in a general sense, answers to our word
Law in its widest acceptation. It denotes, not one particular
law nor collection of laws, but the entire body of principles,
rules, and statutes, whether written or unwritten, by which
the public and the private rights, the duties and the obliga
tions of men, as members of a community, are defined,
inculcated, protected and enforced." William Ramsay, A
Manual ofRoman Antiquities 285-86 (Rodolfo Lanciani ed.,
15th ed. 1894).
jus abstinendi (j;)S ab-st;)-nen-dI), n. [Law Latin "right of
abstaining"] Roman & civil law. The right ofan heir to
renounce or decline an inheritance, as when it would
require taking on debt.
jus abutendi (j;)S ab-y;)-ten-dI), n. [Latin "right of
abusing"] Roman & civil law. The right to make full use
ofproperty, even to the extent ofwasting or destroying
it. Cf. IUS UTENDI.
jus accrescendi (j;)S ak-r;)-sen-dI), n. [Latin "right of
accretion"] A right of accrual; esp., the right of survi
vorship that a joint tenant enjoys. See RIGHT OF SUR
VIVORSHIP. Cf. JUS NON DECRESCENDI. [Cases: Joint
Tenancy C=>6.]
jus actionis (j;)S ak-shee-oh-nis). [Latin] Scots law. A
right ofaction.
jus actus (j;)S ak-t;)s). [Latin] Roman law. A rural servi
tude giving a person the right ofpassage for a carriage
or cattle. See ACTUS (3).
jus administrationes (j;)S ad-mi-ni-stray-shee-oh-neez).
[Latin] Scots law. Hist. The outmoded right by which a
husband had unfettered control of his wife's heritable
property.
jus ad rem (j;)S ad rem), n. [Law Latin "right to a thing"] A
right in specific property arising from another person's
937
duty and valid only against that person; an inchoate or
incomplete right to a thing. Cf. JUS IN RE.
jus aedilium OdS ee-dil-ee-dm). [Latin "law of the
aediles"] Roman law. The body of law developed
through the edicts of aediles. -Also termed jus aedi
licium (jas ee-dI-Iish-ee-am). See AEDILE; JUS HOKO
RARIUM.
Jus Aelianum (jdS ee-lee-ay-nam). [Latin) Roman law.
A manual oflaws drawn up in the second century B.C.
by the consul Sextus Aelius, consisting of three parts:
(1) the laws of the Twelve Tables; (2) a commentary
on them; and (3) the forms of procedure. See TWELV~
TABLES.
jus aequum OdS ee-kwam). [Latin "law that is equal or
fair"] Roman law. Law characterized by equity, flexibil
ity, and adaptation to the circumstances ofa particular
case. Cf. JUS STRICTUM.
jus aesneciae (jdS ees-neesh-ee-ee). [Latin] Hist. The
right ofprimogeniture. -Also spelled esneciae.
jus agendi (jas a-jen-dl). [Latin] Scots law. One's power
to take action to pursue one's rights.
jus albanagii (jas al-bd-nay-jee-l), n. [Law Latin "confis
cating the goods of aliens"] See DROIT D'AUBAINE.
jus albinatus (jas al-bi-nay-tas), n. [Law Latin "right of
alien confiscation"] See DROIT D'AUBAINE.
jus angariae (jdS ang-gair-ee-ee), n. [Latin "right of
angary"] See AKGARY.
jus antiquum (jas an-tI-kwam). [Latin] Roman law. The
old law. -Also termed jus vetus. Cf. JUS NOVUM.
"In the later Empire (which dates from the fourth century)
there were two groups of sources of law: first, the 'jus
vetus', or 'jus' simply, i.e. the old traditional law, the devel
opment of which was completed in the classical period
of Roman jurisprudence (in the course of the second and
the beginning of the third century); secondly, the 'leges'
or 'jus novum', i.e. the later law which had sprung from
imperial legislation. These two classes of law, 'jus' and
'leges', mutually supplementing each other, constituted
the whole body of law as it existed at the time, and, taken
together, represented the result of the entire development
of Roman law from the earliest times down to ... the
epoch of the later Empire." Rudolph $ohm, The Institutes:
A Textbook of the History and System ofRoman Private Law
116-17 Uames Crawford Ledlie trans., 3d ed. 1907).
jus apparentiae (jas ap-<l-ren-shee-ee). [Law Latin] Scots
law. lhe right ofapparency. An heir who was open to
a succession but not fully vested in title had the right of
apparency, a right that allowed the heir to take certain
actions on behalf of the estate, such as defending the
ancestor's title.
jus aquaeductus (jds ak-wa-dak-tas), n. [Latin] Roman &
civil law. A servitude that gives a landowner the right
to conduct water from another's land through pipes
or channels.
jus aquaehaustus (jas ak-wee haws-tds). [Latin] Roman
law. See AQUAEHAUSTUS.
jus aucupandi (jas awk-yuu-pan-dr). [Latin] Scots law.
The right of catching birds; the right offowling. jus commune
jus banci (jas ban-51), n. [Law Latin "right ofbench"j
Hist. The right or privilege of having an elevated and
separate seat ofjudgment, formerly allowed only to the
king's judges, who administered what was from then
on called "high justice."
jus belli (jas bel-I), n. [Latin "law of war"] The law of
nations as applied during wartime, defining in par
ticular the rights and duties of the belligerent powers
and of neutral nations.
jus bellum dicendi (jas bel-<lm di-sen-dI), n. [Latin] The
right ofproclaiming war.
jus canonicum (jas ka-non-i-kam), n. [Law Latin] See
CANON LAW (1).
jus capiendi (jas kap-ee-en-dI). [Latin "the right to take
or receive"] Roman law. The right of taking property
under a will.
jus civile (jas si-Vl-Iee). [Latin] Roman law. The tradi
tional law of the city of Rome, beginning with the
Twelve Tables and developed by juristic interpretation.
It covered areas oflaw restricted to Roman citizens,
such as the formalities ofmaking a will. Over time, the
jus civile was modified by, for example, the jus honorar
ium (which modified the requisites for a valid will) and
the jus sentium (which modified the stipulation). The
originaljus civile was eventually absorbed into a general
Roman law. See CIVIL LAW (1); JUS QUfRITIUM.
jus civitatis (jas siv-i-tay-tds). [Latin] Roman law. The
right ofcitizenship; the right ofa Roman citizen.
jus cloacae (jds kloh-ay-see), n. [Latin "right ofsewer or
drain"] Civil law. An easement consisting in the right
of having a sewer or conducting surface water over or
through the land ofone's neighbor.
jus cogens (jdS koh-jenz), n. [Latin "compelling law"]
1. lnt'llaw. A mandatory or peremptory norm of
general international law accepted and recognized by
the international community as a norm from which
no derogation is permitted. - A peremptory norm can
be modified only by a later norm that has the same
character. Cf. JUS DISPOSITlVUM. [Cases: International
Law (;:.:c 1.] 2. Civil law. A mandatory rule oflaw that
is not subject to the disposition of the parties, such as
an absolute limitation on the legal capacity of minors
below a certain age. Also termed (in sense 2) peremp
tory norm.
jus commercii (jas ka-mar-shee-I), n. [Latin "right of
commerce"] Roman & civil law. 1be right to make
contracts, acquire and transfer property, and conduct
business transactions.
jus commune (jaS ka-myoo-nee), n. 1. Roman & civil
law. The common or public law or right, as opposed
to a law or right established for special purposes. Cf.
JUS SINGULARE. 2. The common law of England. See
COMMON LAW (3). 3. The shared law of much of conti
nental Western Europe during the Middle Ages, con
sisting ofa blend ofcanon law and rediscovered Roman
law.
"U]us commune is a phrase well known to the canonists.
They use it to disti nguish the general and ordinary law of
938 jus compascuum
the universal church both from any rules peculiar to this
or that provincial church, and from those papal privilegia
which are always giving rise to ecclesiastical litigation."
1 Frederick Pollock & Frederic William Maitland, History
of English Law Before the Time of Edward I 176 (2d ed.
1898).
jus compascuum (jas kam-pas-kyoo-am), n. [Latin "the
right to feed together"] Hist. The right of common
pasture. Cf. COMMO~ (1).
jus connubii (jds kd-n[y]oo-bee-I), n. [Latin "right of
marriage"] See CONNUBIUM.
jus coronae (jds ka-roh-nee), n. [Latin "right of the
Crown"] The right of succession to the English
throne.
jus crediti (jds kred-i-tI). [Latin "the right of credit"]
Roman & Scots law. A creditor's right to a debt; a credi
tor's right to recover a debt through legal process. Cf.
JUS EXIGE~DI.
"[Tlhe term is frequently used in contradistinction to a
mere spes, or defeasible expectancy. This jus credit! is
often of great importance; for although a person may not
be entitled to be put in immediate possession of a subject,
yet the obligation to deliver it to him at some future time
creates in him a vested right, which forms part of his
estate." William Bell, Bell's Dictionary and Digest of the Law
ofScotland 620 (George Watson ed., 7th ed. 1890).
jus cudendae monetae (jdS kyoo-den-dee ma-nee-tee),
n. [Law Latin] Hist. The right ofcoining money.
jus curialitatis (jds kyoor-ee-al-Cl-tay-tis), n. [Law Latin]
Rist. The right ofcurtesy.
jus dare Ods dair-ee), vb. [Latin] To give or make the law .
This is the function and prerogative ofthe legislature.
Cf. JUS DICERE.
jus delatum OdS di-lay-tam). [Law Latin] Scots law. A
transferred right.
jus deliberandi Ods di-lib-a-ran-dI), n. [Latin "right of
deliberating"] Roman & civil law. A right granted to
an heir to take time to consider whether to accept or
reject an inheritance. Cf. tempus deliberandi under
TEMPUS.
jus de non appellando Ods dee non ap-a-lan-doh). [Latin]
Hist. The supreme judicial power.
jus devolutum (jds dev-a-Ioo-t;}m). [Law Latin "a
devolved right"] Scots law. The right of the presbytery
to appoint a minister to a vacant church if a patron
failed to present a fit minister within six months ofthe
vacancy. Cf. TANQUAM JURE DEVOLUTO.
jus dicere (j~s dI-s<Jr-ee), vb. [Latin] Hist. To declare or
decide the law . This is the function and prerogative
of the judiciary. Cf. JUS DARE.
jus disponendi (jds dis-pCl-nen-dI), n. [Latin "right of
disposing"jThe right to dispose ofproperty; the power
ofalienation.
jus dispositivum (jas dis-poz-<J-tl-vam), n. [Latin "law
subject to the disposition of the parties"] Int'llaw.
A norm that is created by the consent of participat
ing nations, as by an international agreement, and is binding only on the nations that agree to be bound by
it. Cf. JUS COGENS (1).
jus distrahendi (jas dis-trd-hen-dI), n. [Latin "right of
distraining"]The right to sell pledged goods upon
default.
jus dividendi (jds div-i-den-dI), n. [Latin "right of
dividing"] The right to dispose of real property by
will.
jus divinum (j;}S di-vI-nClm). 1. See DIVINE LAW. 2. See
NATURAL LAW.
jus domino proximum (jds dom-d-noh prok-s~-mClm).
[Law Latin] Scots law. A right nearly equal to that of
absolute property; a feuholder's right. See FEU.
"Jus domino proximum .... Such a right is enjoyed by
one who holds lands in feu, for he is entitled to sell the
subjects, or alter or use them in any way he thinks proper.
And yet the property is not absolutely his that is, he does
not hold the property so absolutely as did the superior
from whom he acquired, because the land is burdened
with the feu-duty payable to the superior, and to this extent
the absolute right of property is restricted. Similar to the
right of a feuar under our law, was that of the emphyteuta
under the civil law." John Trayner, Trayner's Latin Maxims
304-05 (4th ed. 1894 |
." John Trayner, Trayner's Latin Maxims
304-05 (4th ed. 1894).
jus duplicatum (jas d[y]oo-pli-kay-tClm). See DROIT
DROIT.
jus ecclesiasticum (j<Js e-klee-z[h]ee-as-ti-bm). [Law
Latin] See ECCLESIASTICAL LAW.
jus edicendi (jas ed-i-sen-dr or ee-di-). [Latin "right of
decreeing"] Roman law. The right (esp. ofthe praetors)
to issue edicts. See JUS PRAETORIUM.
jus et norma loquendi O<Js et nor-m;) 10h-kwen-dI).
[Latin "the law and rule ofspeech"] Idiomatic language,
including speech and pronunciation, as established by
the custom ofa particular nation.
jus exigendi (jClS ek-si-jen-dr). [Latin] Scots law. A credi
tor's right to enforce immediate payment ofa debt. Cf.
JUS CREDITI.
"For example, where a testator directs his testamentary
trustees to pay a certain which he has uncondi
tionally bequeathed to the six months after his
(the testator's) death. the legacy vests on the death of the
testator, and the legatee acquires then the jus crediti, but
he cannot enforce payment of the legacy until after the
expiry of the six months; he acquires the jus exigendiwhen
the debt has become prestable." John Trayner, Trayner's
Latin Maxims 305 (4th ed. 1894).
jus ex non scripto (jas eks non skrip-toh). See unwritten
law under LAW.
jusfalcandi (j~s fal-kan-dI), n. [Latin] Rist. The right of
mowing or cutting.
jusfetiale (jas fee-shee-ay-Iee), n. [Latinll. FETIAL LAW.
2. The law ofnegotiation and diplomacy. This phrase
captured the classical notion of international law.
Also spelled jusfeciale.
jus fiduciarium (jClS fi-d[y]oo-shee-air-<Jm), n. [Latin]
Civil law. A right in trust. Cf. JUS LEGITIMUM.
jusfluminum OClS floo-m<J-ndm), n. [Latin] Civil law. The
right to use rivers.
939
jusfodiendi (j~s foh-dee-en-dr), n. [Latin] Civil law. The
right to dig on another's land.
jusfruendi (jas froo-en-dr), n. [l.atin "right ofenjoying"]
Roman & civil law. The right to use and enjoy anoth
er's property without damaging or diminishing it. See
USUFRUCT.
jus futurum (jas fyoo-t[y]oor-dm), n. [Latin "future
right"] Civil law. A right that has not fully vested; an
inchoate or expectant right.
jus gentium (jas jen-shee-am). [Latin "law ofnations"]!.
INTERNATIONAL LAW. 2. Roman law. Ihe body oflaw,
taken to be common to all civilized peoples, and applied
in dealing with the relations between Roman citizens
and foreigners. -Also termed jus inter gentes.
"The early Roman law (the jus Civile) applied only to
Roman citizens. It was formalistic and hard and reflected
the status of a small, unsophisticated society rooted in
the soil. It was totally unable to provide a relevant back
ground for an expanding, developing nation. This need
was served by the creation and progressive augmentation
ofthejus gentium. This provided simplified rules to govern
the relations between foreigners, and between foreigners
and citizens .... The progressive rules of the jus gentium
gradually overrode the narrow jus civile until the latter
system ceased to exist. Thus, the jus gentium became the
common law of the Roman Empire and was deemed to be
of universal application." Malcolm N. Shaw, International
Law 15 (4th ed. 1997).
jusgentium privatum (jds jen-shee-dm pn-vay-tdm). See
private international law under INTERNATIONAL LAW.
jus gentium publicum OdS jen-shee-am pab-li-kam). See
INTERNATIONAL LAW.
jus gladii (jds glad-ee-I). [Latin "right of the sword"]
Roman law. The executory power of the law, esp. for
provincial governors; the power or right to inflict the
death penalty. -This term took on a similar meaning
under English law. -Also termed potestas gladU.
"And the prosecution of these offences is always at the suit
and in the name of the king, in whom, by the texture of our
constitution, the jus gladii, or executory power of the law,
entirely resides." 4 William Blackstone, Commentaries on
the Laws of England 177 (1765).
jus habendi (jas ha-ben-dr), n. [I.atin] Civil law. The right
to have a thing; the right to be put in actual possession
ofproperty.
jus haereditatis (jas h<J-red-a-tay-tis), n. [Latin] Civil law.
The right ofinheritance.
jus hauriendi OdS haw-ree-en-dr), n. [Latin] Civil law.
The right ofdrawing water.
jus honorarium (jas [h]on-d-rair-ee-am). [Latin "mag
isteriallaw"] Roman law. The body oflaw established
by the edicts of magistrates, esp. the praetors (jus
praetorium) and the aediles (jus aedilium). -In the
Roman Republic, the term sometimes referred col
lectively to all the proclamations of magistrates of
the Roman Republic, such as the consuls, praetors,
aediles, quaestors, censors, provincial governors, and
pontiflces. Although these magistrates were not legis
lators, they were entitled and indeed bound to declare
by edict how they proposed to administer justice, and jus legitimum
their edicts were a supplementary source oflaw. - Also
termed edicta magistratuum.
jus honorum (j;)S [h]d-nor-am). [Latin] Roman law. The
right of a citizen to hold public office, whether civil,
military, or sacred. Cf. JUS SUFFRAGII.
jus imaginis (jds ;)-maj-a-nis). [Latin] Roman law. The
right to use or display pictures or statues of ances
tors. -The right was restricted to upper-class Roman
citizens.
jus immunitatis (jds i-myoo-na-tay-tis), n. [Latin "law
of immunity"] Civil law. Exemption from the burden
of public office.
jus incognitum (jds in-kog-na-tam), n. [Latin] Civil law.
An unknown or obsolete law.
jus incorporale OdS in-kor-pa-ray-Iee). [Latin] Hist. An
incorporeal right. See INCORPOREAL.
jus individuum OdS in-da-vij-oo-am), n. [Latin] An
individual or indivisible right; a right that cannot be
divided.
jus in personam (jds in p<lr-soh-n<lm), n. [Latin "right
against a person"] A right ofaction against a particu
lar person to enforce that person's obligation. -Also
termed jura in personam. See right in personam under
RIGHT.
jus in re U<lS in ree), 11. [Law l.atin "right in or over a
thing"] A right in property valid against anyone in the
world; a complete and perfect right to a thing. -Also
termed jus in rem; jura in rem. Cf. JUS AD REM.
jus in re aliena OdS in ree ay-Iee-ee-nd or al-ee-), n. [Latin]
An easement or right in or over another's property;
ENCUMBRANCE. Also termed right in re aliena.
jus in rem OdS in rem), n. [btin "right to a thing"] See
JUS IN RE.
jus in re propria OdS in ree proh-pree-d), n. [Latin] The
right ofenjoyment that is incident to full ownership of
property; full ownership itself. -Also termed right
in re propria.
jus inter gentes (jas in-tdr jen-teez), n. [I.atin "law among
nations"] See JUS GENTIUM.
jus Italicum (jas I-tal-a-kdm). [l.atin] Roman law. A
privilege granted by the emperor to cities outside Italy,
giving them the status of communities within Italy. _
This privilege included the right to own land by quiri
tarlan title.
jus itineris (jds I-tin-;)-ris). [Latin] Roman law. A rustic
praedial servitude granting the right to pass over an
adjoining property on foot or horseback.
jusjurandum (j;)s-juu-ran-ddm), n. [Latin] An oath. See
JURAMENTUM.
jus Latij O;)S lay-shee-I). [Latin] Roman law. Rights
granted to a citizen ofa Roman colony. -The colonial
citizen's status was midway between peregrine and full
citizen of Rome. -Also termed jus Latium.
jus legitimum (jds ld-jit-d-mam), n. [Latin] Civil law. A
right enforceable in law. Cf. JUS FIDUCIARIUM.
jus liberorum 940
jus liberorum (jdS lib-d-ror-dm). [Latin "right of
children"] Roman law. A privilege conferred on a
parent who has several children; esp., the immunity
from compulsory guardianship (tutela) given to a
woman with three or more children. -Also termed
jus trium liberorum.
jus liquidissimum (jds lik-wi-dis-i-mdm). [Latin]
Maritime law. The principle that a salvager is entitled to
a reward for saving life or property imperiled at sea.
jus mariti (jds mah-ree-tI or md-rI-tI). [Law Latin]
Scots law. Hist. The outmoded right under which a
husband acquired ownership ofall his wife's movable
property.
jus merae facultatis (jds meer-ee fak-dl-tay-tis). [Law
Latin] Hist. A right of mere power; a right of power
merely to act.
jus merum (jds meer-dm). See MERE RIGHT.
jus moribus constitutum OdS mor-d-bds kon-std-t[y]
oo-tdm). [Latin] See unwritten law under LAW.
jus naturae OdS nd-t[y]oor-ee). [Latin] See NATURAL
LAW.
jus naturale (jds nach-d-ray-Iee). [Latin] See NATURAL
LAW.
jus navigandi (jds nav-d-gan-dI), n. [Latin] Civil law. The
right of navigation; the right ofcommerce by sea.
jus necessitatis (jds nd-ses-i-tay-tis), n. [Latin] A person's
right to do what is required for which no threat oflegal
punishment is a dissuasion . This idea implicates the
proverb that necessity knows no law (necessitas non
habet legem), so that an act that would be objectively
understood as necessary is not wrongful even if done
with full and deliberate intention.
jus nobilius Ods noh-bil-ee-ds). [Law Latin] Hist. A
superior right.
jus non decrescendi (jds non dee-kre-sen-dI). [Law Latin]
Scots law. The right ofnot suffering diminution. Cf. JUS
ACCRESCENDI.
jus non sacrum OJS non say-krdm). [Latin "nonsacred
law"] Hist. The body oflaw regulating the duties of a
civil magistrate in preserving the public order. Cf. JUS
SACRUM.
jus non scriptum (jds non skrip-t<lm). See unwritten law
under LAW.
jus novum (jds noh-vdm). [Latin] Roman law. The new
law; the law ofthe later Roman empire. -Also termed
leges. See LEX. Cf. JUS ANTIQUL'M.
jus obligation is (jJS ob-li-gay-shee-oh-nis). [Law Latin
"a right of obligation"] Hist. A personal right. See JUS
AD REM.
jus offerendi (jds ahf-or awf-d-ren-dI). [Latin] Roman
law. The right of subrogation; the right to succeed to a
senior creditor's lien and priority upon tendering the
amount due to that creditor. Also termed jus offer
endae pecuniae. jus oneris ferendi (jds on-doris fd-ren-dl). [Latin] Roman
law. An urban praedial servitude granting the right for
one's own house to be supported by a neighbor's . The
servitude was exceptional in requiring a positive duty
ofthe servient owner.
jus pascendi OJS pd-sen-dr}. See servitus pascendi under
SERVITUS.
jus patronatus O<lS pa-trd-nay-tds), n. [Latin] Eccles. law.
'Ihe right of patronage; the right to present a clerk to
a benefice.
jus persequendi in judicio quod sib; debetur Ods pdr
sd-kwen-dr in joo-dish-ee-oh kwod sib-l deb-d-tdr).
[Latin] Roman law. The right of suing before a court
for that which is due to us . The phrase is Justinian's
definition ofan action.
jus personarum OJS pJr-sd-nair-dm), n. [Latin "law
of persons"] Civil law. The law governing the rights
of persons having special relations with one another
(such as parents and children or guardians and wards)
or haVing limited rights (such as aliens or incompetent
persons). See LAW OF PERSONS. Cf. JUS RERUM.
jus pignoris O<lS pig-nd-ris). [Latin "the right ofpledge"]
Roman law. A creditor's right in the property that |
-nd-ris). [Latin "the right ofpledge"]
Roman law. A creditor's right in the property that a
debtor pledges to secure a debt.
jus poenitendi (ids pen-i-ten-dI), n. [Latin] The right to
rescind or revoke an executory contract when the other
party defaults.
jus portus OJS por-tds), n. [Latin] Civil & maritime law.
The right ofport or harbor.
jus positivum <ids poz-i-tiv-dm). See POSITIVE LAW.
juspossessionis OJS pd-zes[h]-ee-oh-nis), n. [Latin] Civil
law. A right of which possession is the source or title;
a possessor's right to continue in possession. Cf. JUS
PROPRIETA TIS.
jus possidendi Ods pos-d-den-dI), 11. [Latin] Civil law.
A person's right to acquire or to retain possession; an
owner's right to possess.
jus postliminii (jds pohst-Id-min-ee-I). [Latin] See
POSTLIMINmM.
jus praesens (jds pree-senz or -zenz), 11. [Latin "present
right"] Civil law. A right that has been completely
acquired; a vested right.
jus praetorium O<lS pri-tor-ee-dm). [Latin "law of the
praetors"] Roman law. The body of law developed
through the edicts ofthe praetors . This was the main
spring of Republican reform. See PRAETOR; EDICTUM
PRAETORIS; JUS HONORARIUM.
jus praeventionis OJS pree-ven-shee-oh-nis). [Law Latin
"a right of preference"] Scots law. A court's jurisdic
tional superiority by virtue of being the first court to
exercise its jurisdiction in a case.
jus precarium (jds pri-kair-ee-dm), n. [Latin] Civil law.
A right to a thing held for another, for which there
was no remedy by legal action but only by entreaty or
request.
941 jus scriptum
jus presentationis OdS prez-dn-tay-shee-oh-nis), n.
[Latin] Civil law. The right to present a clerk to a
church.
jus primae noctis Ods prJ-mee nok-tis). [Latin "right of
first night"] See DROIT DU SEIGNEUR.
jus privatum (j<'lS pn-vay-tdm), n. [Latin "private law"]
1. Roman & civil law. Private law, consisting of all the
branches oflaw that regulate the relations of citizens
to one another, including family law, property, obliga
tions, and testate and intestate succession. 2. The right,
title, or dominion of private ownership. See PRIVATE
LAW. Cf. JUS PUBLICUM.
jus projiciendi (jds prd-jish-ee-en-dI), n. [Latin] Civil
law. A servitude granting the right to build a projection
(such as a balcony) from one's house in the open space
belonging to a neighbor.
jus proprietatis (jds prd-pn-d-tay-tis), n. [Latin) Civil
law. A right in property based on ownership rather
than actual possession. Cf. JUS POSSESSIONIS.
jus protegendi (jds proh-td-jen-dI), n. [Latin] Civil law. A
servitude granting the right to make the roof or tiling
of one's house extend over a neighbor's house.
jus provocationis (jdS prov-d-kay-shee-oh-nis). [Latin]
Roman law. The right possessed by every Roman citizen
to appeal to the people in their Comitia, or later the
emperor, from the infliction of summary punish
ment by a magistrate (coercitio) . Modern romanists
disagree about the precise meaning of this term.
Also termed jus provocatio.
jus publicum (jdS pdb-li-bm), n. [Latin "public law"] 1.
Roman & civil law. Public law, consisting of constitu
tionallaw, administrative law, criminal law and proce
dure, and the law relating to sacred rites (jus sacrum). 2.
The right, title, or dominion ofpublic ownership; esp.,
the government's right to own real property in trust for
the public benefit. See PUBLIC LAW. Cf. JUS PRIVATUM.
jus quaesitum OdS kwi-sI-t;)m or -zI-t<lm), n. [Latin) Civil
law. 1. A right to ask or recover, as from one who is
under an obligation. 2. An acqUired right.
jus quaesitum tertio OdS kwi-sI-tdm t;Jr-shee-oh). [Law
Latin) Scots law. A contractual right conferred on a
third party. A third-party right may be conferred
on a specified individual or on an identifiable class of
people.
"Where, in a contract between two parties, a stipulation is
introduced in favour of a third, who is not a contracting
party. the right thus created is said to be jus quaesitum
tertio. Such a right. generally speaking, cannot be recalled
by the contracting parties, and the third party. so far as he
is concerned. may require exhibition and implement of the
contract." William Bell. Bell's Dictionary and Digest of the
Laws of Scotland 622 (George Watson ed., 7th ed. 1890).
jus quiritium (j<lS kwi-rI-shee-dm). [Latin) Roman law.
lhe ancient, primitive law of the Romans before the
development ofthe jus praetorium and the jus gentium;
the original jus civile.
jus recuperandi (j<lS ri-k[y)oo-pd-ran-dI), n. [Latin] Civil
law. The right ofrecovering, esp. lands. jus regale (jds ri-gay-Iee). [Law Latin] Scots law. A royal
right; a sovereign's right.
jus regendi OdS ri-jen-dI}, n. [Law Latin) A proprietary
right vested in a sovereign.
jus relictae O;)S ri-Iik-tee), n. [Law Latin "right of a
widow"] Civil & Scots law. A widow's claim to her
share of her deceased husband's movable estate . If
the widow has children, her share is one-third; if not,
her share is one-half.
jus relicti (jds ri-lik-tI), n. [Law Latin "right ofa widower")
Civil & Scots law. A widower's right in his deceased
wife's separate movable estate, historically two-thirds
if there were surviving children, and otherwise one
half. Under the Married Women's Property Act of 1881,
the amount became one-third in the case ofsurviving
children, and otherwise one-half.
jus repraesentationis (jds rep-ri-zen-tay-shee-oh-nis),
n. [Latin] Civil law. The right to represent or be repre
sented by another.
jus rerum (j<'lS reer-am), n. [Latin "law of things"]
Civil law. The law regulating the rights and powers
of persons over things, as how property is acquired,
enjoyed, and transferred. See LAW OF THINGS. Cf. JUS
PERSONARUM.
jus respondendi OdS ree-spon-den-dr). [Latin "the right
of responding"] Roman law. The authority conferred
on certain jurists when delivering legal opinions.
Modern romanists disagree about the precise meaning
ofthis term.
jus retentionis (jas ri-ten-shee-oh-nis), 11. [Latin) Civil
law. The right to retain a thing until the delivery of
something else that the person retaining the thing is
entitled to.
jus retinendi et insistendi (j<'lS ret-i-nen-dr et in-sis-ten
dI). [Law Latin] Scots law. A right ofretention and of
insisting. The phrase usu. referred to a seaman's right
to recover wages both by taking a lien against the ship
and by proceeding against the owner for payment.
jus retractus (jdS ri-trak-tas), n. [Latin "the right of
retraction"] Civil law. 1. The right ofcertain relatives of
one who has sold immovable property to repurchase it.
2. A debtor's right, upon sale ofthe debt by the creditor,
to have a third person redeem it within a year for the
price paid by the purchaser.
jus rusticorum praediorum. See rural servitude under
SERVITUDE (2).
jus sacrum (jdS say-kram). [Latin "sacred law"] Roman
law. The body of law regulating matters of public
worship, such as sacrifices and the appointment of
priests. Cf. JUS NON SACRUM.
jus sanguinis (jds sang-gwd-nis), n. [Latin "right of
blood"] The rule that a child's citizenship is determined
by the parents' citizenship . Most nations follow this
rule. Cf. JUS SOLI.
jus scriptum (j<'lS skrip-tam). [Latin] See written law
under LAW.
942 jus sib; dicere
jus sibi dicere {jas sib-r dI-sar-ee). [Latin] Hist. To
declare the law for oneself; to take the law into one's
own hand.
jus singulare (jas sing-gya-lair-ee), n. [Latin "individual
law"] Roman & civil law. A law or right established for
special purposes, as opposed to the common or public
law or right. Cf. JUS COMMUNE (1).
jus soli (jJS soh-h), n. [Latin "right ofthe soil") The rule
that a child's citizenship is determined by place ofbirth.
This is the U.S. rule, as affirmed by the 14th Amend
ment to the Constitution. Cf. JUS SANGUINIS.
jus spatiandi (jas spay-shee-an-dI), n. [Latin "right
of walking about"] Civil law. lhe public's right-of
way over specific land for purposes of recreation and
instruction.
jus stapulae OJS stay-pYJ-lee), n. [Law Latin "right of
staple"] Civil law. A town's right or privilege ofstopping
imported merchandise and forcing it to be offered for
sale in its own market. See STAPLE.
jus strictum (jas strik-tJm). [Latin "strict law"] Roman
law. Law rigorously interpreted according to the
letter. -Also termed strictum jus. See STRICTI JURIS.
Cf. JUS AEQUUM.
jus suffragii (jas sd-fray-jee-l). [Latin) Roman law. The
right ofa citizen to vote. Cf. JUS HONORUM.
just, adj. (14c) Legally right; lawful; equitable.
justa causa (j<lS-tJ kaw-za), n. [Latin] Civil law. A just
cause; a lawful ground. See good cause under CAUSE
(2).
justae nuptiae (j<ls-tee n<lp-shee-ee). [Latin "legal
marriage"J Roman law. A marriage between two
persons who had the legal capacity to wed. Justae
nuptiae was the only union that created the familial
relationship known as patria potestas. Also termed
justum matrimonium. See patria potestas under
POTESTAS. Cf. CONCUBINATUS.
"Iustae nuptiae is such a marriage as satisfies all the rules
of civil law. Any marriage between two persons who had
the capacity of civil marriage with each other (conubium)
was necessarily iustae nuptiae, for if the union was defec
tive in any other respect it was no marriage at all. On the
other hand, if there was no conubium between the parties
it might still be actually a marriage (nuptiae, nuptiae non
iustae), the wife being uxor non iusta, the children libe!'i
non iusti. Such a marriage, in which one party at least
would not be a cMs, did not produce patria potestas over
children ...." W.W. Buckland, A Manual of Roman Private
Law 63-64 (2d ed. 1953),
jus talionis. See LEX TALIONIS.
;ust-as-probable rule. Workers' compensation. A doctrine
whereby a workers' -compensation claim will be denied
ifit is equally likely that the injury resulted from a non
work-related cause as from a work-related cause. [Cases:
Workers' Compensation
just cause. See good cause under CAUSE (2).
just compensation. See COMPENSATION.
Just Compensation Clause. See TAKINGS CLAUSE. just deserts (di-zarts). (16c) What one really deserves;
esp., the punishment that a person deserves for having
committed a crime. -Also termed deserts.
jus tertii (jas tar-shee-l), n. [Latin)l. 'The right ofa third
party. [Cases: Action C=>13; Federal Civil Procedure
<.:-~, 103.4.J
"[Nlo defendant in an action of trespass can plead the jus
tertii -the right of possession outstanding in some third
person ~as against the fact of possession in the plaintiff."
R.F.V. Heuston, Salmond on the Law of Torts 46 (17th ed.
1977) .
2. The doctrine that, particularly in constitutional law,
courts do not decide what they do not need to decide.
"jus tertii ... says nothing about the nature of legal
argument on the merits of a case once formed, but as
a symbol for the separability of cases is a useful term of
art. Translated, however, it reads 'right of a third person.'
It may once have been associated with a presumption of
common-law jurisprudence that one cannot be harmed
by an action that achieves its effect through effects upon
others, cannot be 'indirectly' harmed," Joseph Vining, Legal
Identity 120 (1978).
justice. (17c) 1. The fair and proper administration of
laws.
commutative justice (b-myoo-ta-tiv or kom-YJ
tay-tiv). (1856) Justice concerned with the rela
tions between |
-ta-tiv or kom-YJ
tay-tiv). (1856) Justice concerned with the rela
tions between persons and esp. with fairness in the
exchange ofgoods and the fulfillment ofcontractual
obligations.
condign justice. An outcome according to what the
litigants deserve; esp., justice based on the kind and
degree of punishment that is appropriate for a given
offense.
distributive justice. (16c) Justice owed by a commu
nity to its members, including the fair allocation
of common advantages and sharing of common
burdens.
Jedburgh justice (jed-bJr-J). A brand ofjustice involv
ing punishment (esp. execution) first and trial after
wards . The term alludes to Jedburgh, a Scottish
border town where in the 17th century raiders were
said to have been hanged without the formality of a
trial. Jedburgh justice differs from lynch law in that
the former was administered by an established court
(albeit after the tact). -Also termed Jeddart ;ustice;
Jedwood justice. Cf. LIDFORD LAW; LYNCH LAW.
justice in personam. See personal justice.
justice in rem. See social justice.
natural justice. Justice as defined in a moral, as opposed
to a legal, sense. -Also termed justitia naturalis. Cf.
NATURAL LAW.
"Although the judges have frequently asserted that
a foreign judgment which contravenes the principles
of natural justice cannot be enforced in England, it is
extremely difficult to fix with precision the exact cases
in which the contravention is sufficiently serious tojustify
a refusal of enforcement. Shadwell v.-c. once said that
'whenever it is manifest that justice has been disregarded,
the court is bound to treat the decision as a matter of no
value and no substance.' [Price v. Dewhurst, 8 Sim 279, 302
(1837).] But this goes too far.... The expression 'contrary
943
to natural justice' has, however, figured so prominently in
judicial statements that it is essential to fix, if possible, its
exact scope. The only statement that can be made with any
approach to accuracy is that in the present context, the
expression is confined to something glaringly defective in
the procedural rules of the foreign law .... In other words,
what the courts are vigilant to watch is that the defendant
has not been deprived of an opportunity to present his
side of the case." G.c. Cheshire, Private International Law
675 (6th ed. 1961).
personal justice. (16c) Justice between parties to a
dispute, regardless of any larger principles that might
be involved. Also termed justice in personam;
popular justice; social justice.
popular justice. (17c) Demotic justice, which is usu.
considered less than fully fair and proper even though
it satisfies prevailing public opinion in a particular
case. Cf. social justice.
"Nothing is more treacherous than popularjustice in many
of its manifestations, subject as it is to passion, to fallacy,
and to the inability to grasp general notions or to distin
guish the essential from the inessential." Carleton K. Allen,
Law in the Making 387 (7th ed. 1964).
positive justice. (l7c) Justice as it is conceived, recog
nized, and incompletely expressed by the civil law or
some other form of human law. Cf. POSITIVE LAW.
preventive justice. Justice intended to protect against
probable future misbehavior. -Specific types of
preventive justice include appointing a receiver or
administrator, issuing a restraining order or injunc
tion, and binding over to keep the peace.
social justice. (1902) 1. Justice that conforms to a moral
principle, such as that all people are equal. 2. One
or more equitable resolutions sought on behalf of
individuals and communities who are disenfran
chised, underrepresented, or otherwise excluded
from meaningful partiCipation in legal, economic,
cultural, and social structures, with the ultimate
goal ofremoving barriers to participation and effect
ing social change. Also termed justice in rem. Cf.
personal justice; CAUSE LAWYERING.
substantial justice. (l7c) Justice fairly administered
according to rules of substantive law, regardless of
any procedural errors not affecting the litigant's sub
stantive rights; a fair trial on the merits.
2. A judge, esp. of an appellate court or a court oflast
resort. -Abbr. J. (and, in plural, JJ. [Cases: Judges
1.]
associate justice. (lSc) An appellate-court justice other
than the chief justice.
chiefjustice. (I5c) The presiding justice of an appellate
court, usu. the highest appellate court in a jurisdic
tion and esp. the U.S. Supreme Court. -Abbr. c.J.
circuit justice. (18c) 1. A justice who sits on a circuit
court. 2. A U.S. Supreme Court justice who has juris
diction over one or more of the federal circuits, with
power to issue injunctions, grant bail, or stay exe
cution in those circuits. [Cases: Federal Courts C=>
446.} justiciability
circuit-riding justice. Hist. A U.S. Supreme Court
justice who, under the Judiciary Act of 1789, was
required to travel within a circuit to preside over
trials. _ In each of three circuits that then existed,
two justices sat with one district judge. See CIRCUIT
RIDING.
3. Hist. Judicial cognizance ofcauses or offenses; juris
diction.
high justice. Hist. Jurisdiction over crimes of every
kind, including high crimes.
low justice. Hist. Jurisdiction over petty offenses.
justice-broker. Archaic. A judge who sells judicial deci
sions.
justice court. See COCRT.
justice ejectment. See EJECTMENT.
justice in eyre (air). Hist. One ofthe itinerant judges who,
in medieval times, investigated allegations of wrongdo
ing, tried cases, and levied fines. -Also termed justicia
errante;justiciar in itinere. See EYRE.
justicement. Archaic. 1. The administration ofjustice.
2. (pl.) All things relating to justice.
justice of the peace. (lSc) A local judicial officer having
jurisdiction over minor criminal offenses and minor
civil disputes, and authority to perform routine civil
functions (such as administering oaths and performing
marriage ceremonies). -Abbr. J.P. Cf. MAGISTRATE
(3). [Cases: Justices of the Peace C:=> 1, 31.]
;ustice-of-the-peace court. See justice court under
COURT.
justice of the quorum. 1. A judge on a panel desig
nated to hear appeals. -In Massachusetts, the panel is
sometimes called a quorum. 2. Hist. A county justice
or justice of the peace, designated by the governor in a
commission of peace, who had to be present or else a
court could not sit. 3. Hist. A distinction conferred on
a justice of the peace by directing in the commis
sion authorizing the holding of quarter sessions that
from among those holding court must be two or more
specially so named. -The distinction was conferred on
some, or occasionally all, of the justices ofthe peace of
a county in England.
justicer, n. Archaic. One who administers justice; a
judge.
justiceship. 1. Ihe office or authority of a justice. 2. The
period ofa justice's incumbency.
justice's warrant. See peace warrant under WARRANT
(1).
justiciability Oa-stish-ee-a-bil-a-tee orja-stish-a-bil-a
tee), n. (15c) The quality or state of being appropriate
or suitable for adjudication by a court. See MOOTNESS
DOCTRINE; RIPENESS. Cf. STANDING. [Cases: Action
6; Federal Courts C:=> 12.1.]
"Concepts ofjusticiability have been developed to identify
appropriate occasions for judicial action.... The central
concepts often are elaborated into more specific categories
ofjusticiability -advisory opinions, feigned and collusive
cases, standing, ripeness, mootness, political questions,
944 justiciable
and administrative questions." 13 Charles Alan Wright et
aI., Federal Practice and Procedure 3529, at 278-79 (2d
ed.1984).
justiciable (jd-stish-ee-d-bd] or jds-tish-d-bdl), adj. (Of
a case or dispute) properly brought before a court of
justice; capable of being disposed of judicially <a jus
ticiable controversy>. [Cases: Action C=,6; Federal
Courts
justicia errante. See J"GSTICE IN EYRE.
justiciar (jd-stish-ee-dr), n. 1. Hist. A royal judicial
officer in medieval England; esp., a justice presiding
over a superior court. 2. JUSTICIARY (2). Also spelled
justicier.
justiciarii itinerantes (jds-tish-ee-air-ee-I J-tin-d-ran
teez), n. [Latin "itinerant justices") Justices in eyre. See
JUSTICE IN EYRE.
justiciarii residentes (jds-tish-ee-air-ee-I rez-i-den-teez),
n. [Latin "resident justices"] Hist. Justices who usu. held
court in Westminster, as opposed to traveling with the
eyre. Cf. EYRE.
justiciar in itinere. See JUSTICE IN EYRE.
justiciary (j;:l-stish-ee-er-ee), adj. Of or relating to the
administration of justice; pertaining to the law. See
HIGH COURT OF JUSTICIARY.
justiciary (ja-stish-ee-er-ee), n. 1. A justice or judge. 2.
Hist.The chief administrator ofboth government and
justice. From the time of the Norman Conquest in
1066 until the reign ofHenry III (1216-1272), the jus
ticiary presided in the King's Court and in the Exche
quer, supervising all governmental departments and
serving as regent in the king's absence. These functions
were later divided among several officials such as the
Lord Chancellor, the ChiefJustice, and the Lord High
Treasurer. Also termed justiciar; chief justiciar; cap
italis justiciarius. 3. Scots law. The administration of
justice, esp. ofcriminal law.
justicier. See JUSTICIAR.
justicies (ja-stish-ee-eez). Hist. A writ empowering the
sheriff to allow certain debt cases in a county court.
The writ was so called because of the Significant word
in the writ's opening clause, which stated in Latin,
"We command you that you do justice to [a person
named]."
justicing room. Hist. A room in which cases are heard
and justice is administered; esp., such a room in the
house of a justice of the peace.
justifiable, adj. Capable ofbeing legally or morally justi
fied; excusable; defensible.
justifiable homicide. See HOMICIDE.
justifiable war. See BELLUM JUSTUM.
justification, n. (l4c) 1. A lawful or sufficient reason for
one's acts or omissions; any fact that prevents an act
from being wrongful. 2. A showing, in court, ofa suffi
cient reason why a defendant acted in a way that, in the
absence ofthe reason, would constitute the offense with
which the defendant is charged . Under the Model Penal Code, the defendant must show that the harm
or evil that resulted from taking the action was less
than the harm or evil that the law creating the offense
charged was seeking to prevent. Model Penal Code
3.02. Also termed justification defense; necessity
defense. See lesser-evils defense under DEFENSE (1).
[Cases: Criminal Law C:::::> 38.] 3. A surety's proof of
having enough money or credit to provide security for
the party for whom it is required. -justify, vb. jus
tificatory (jas-ti-fi-k<l-tor-ee), adj.
"'A little bit of history: the term 'justification' was formerly
used for cases where the aim of the law was not frustrated,
while 'excuse' was used for cases where It was not thought
proper to punish. Killing a dangerous criminal who had
tried to avoid arrest was justified, since the law (if one may
personify) wished this to happen, whereas killing in self
defence was merely excused. The distinction was important
because justification was a defence to the criminal charge
while an excuse was not, being merely the occasion for a
royal pardon. By the end of the middle ages (it is difficult
to assign a fixed date) even excuses were recognised by
the courts, since when there has been no reason to distin
guish between justification and excuse." Glanville Williams,
Textbook ofCriminal Law 39 (1978).
defensive-force justification. A justification defense
available when an aggressor has threatened harm
to the particular interest that is the subject of the
defense usu. to the actor (self-defense), to other
persons (defense of others), or to property (defense
of property). [Cases: Assault and Battery ~67,68;
Homicide ~757,758, 766-809.]
imperfect justification. (1853) A reason or cause that
is insufficient to completely justify a defendant's
behavior but that can be used to mitigate criminal
punishment. [Cases: Sentencing and Punishment
~72.)
judicial-authority justification. A justification defense
available when an actor has engaged in conduct con
stituting an offense in order to comply with a court
order. [Cases: Assault and BatteryC=64; Homicide
C=)756.]
public-authority justification. A justification defense
available when an actor has been specifically autho
rized to engage in the conduct constituting an offense
in order to protect or further a public interest. [Cases:
Assault and Battery ~64;Homicide
justification defense. Criminal & tort law. A defense that |
ases:
Assault and Battery ~64;Homicide
justification defense. Criminal & tort law. A defense that
arises when the defendant has acted in a way that the
law does not seek to prevent . Traditionally, the follow
ing defenses were justifications: consent, self-defense,
defense ofothers, defense ofproperty, necessity (choice
ofevils), the use offorce to make an arrest, and the use
offorce by public authority. Sometimes shortened
to justification. Cf. EXCUSE (2). [Cases: Action
Criminal Law Torts ~121.]
justificator (jas-td-fi-kay-tar). Hist. 1. A compurgator; a
person who testifies under oath in defense of an accused
person. 2. A juror.
Justinian Code (jds-tin-ee-;:ln). Roman law. A collection
ofimperial constitutions drawn up by a commission of
ten persons appointed by the Roman emperor Justinian,
945
and published in A.D. 529. eTen jurists, headed by Tri
bonian, carried out the project beginning in February
A.D. 528 and ending in April 529. It replaced all prior
imperial law, but was in force only until A.D. 534, when
it was supplanted by a revision, the Codex Repetitae
Praelectionis. The precise contents of the first work
are unknown. But the second work, containing the 12
books ofthe revised code, includes the imperial consti
tutions ofthe Gregorian, Hermogenian, and Theodo
sian Codes, together with later legislation, revised and
harmonized into one systematic whole. It deals with
ecclesiastical law, criminal law, administrative law, and
private law. In modern writings, the A.D. 534 version
is the work referred to as the Justinian Code. -Also
termed Justinianean Code (jas-tin-ee-an-ee-;m); Code
ofJustinian; Codex Justinianus (koh-deks-jas-tin-ee
ay-nas); Codex Vetus COld Code"); Codex Iustinianus
Repetitae Praelectionis.
"By the time when the Digest and Institutes had been com
pleted it was obvious that the Codex, published little more
than four years earlier, was incomplete, since in the interval
justinian ... had promulgated other new constitutions.
Tribonian, therefore, was appointed to revise the Code,
so as to bring it fully up to date, and at the end of the
year A.D. 534 this new Code, known as the Codex Repeti
tae Praelectionis, was promulgated, and is the only Code
which survives to the present day. justinian seem to have
laboured under the erroneous impression that the system
he had framed would be adequate for all time. But as there
is nothing static about law, further legislative enactments,
termed Novellae Constitutiones, were issued during his
reign.... In modern times justinian's various compilations
came to be called collectively the Corpus Juris Civilis: the
Corpus being regarded as a single work, made up of the
Institutes, the Digest, the Codex Repetitae Praelectionis,
and the Novels." R.W. Leage, Roman Private Law 44 (C.H.
Ziegler ed., 2d ed. 1930).
Justinianist (j<l-stin-ee-a-nist), n. 1. One who is knowl
edgeable about the Institutes of Justinian_ 2. One who
has been trained in civil law.
Justinian's Institutes. See INSTITUTE.
justitia (jds-tish-ee-<l), n. [Latin] Justice.
justitia denegata (jas-tish-ee-a dee-na-gay-ta). See
DENIAL OF JUSTICE.
justitia naturalis (jas-tish-ee-<l nach-d-ray-lis). See
natural justice under rUSTICE (1).
justitium (jas-tish-ee-am), n. [Latin] Civil law. A suspen
sion or intermission ofthe administration ofjustice in
the courts, as for vacation time.
justo tempore (jas-toh tem-pa-ree). [Latin "at the right
time"] Hist. In due time.
jus tripertitum (jds trr-p<lr-tI-tdm). [Latin "law in three
parts"] Roman law. The law ofwills in the time of Jus
tinian, deriving from the praetorian edicts, from the
civil law, and from the imperial constitutions. See tes
tamentum tripertitum under TESTAMENTUM.
jus trium liberorum (jds tn-am lib-d-ror-dm). [Latin]
See JUS LIBERORUM.
just title. See TITLE (2).
justum matrimonium. See JUSTAE NUPTIAE. Juvenile Delinquency Prevention Act
just value. See fair market value under VALUE (2).
just war. 1. BELLUM JUSTUM. 2. See rUST-WAR DOCTRINE.
just-war doctrine. Int'llaw. The principle that a war
should have a morally and legally sufficient cause, and
must be conducted with restraint. Precisely what is
morally or legally sufficient depends on the norms of
a time and place. Over the centuries the doctrine has
been invoked to justify wars waged in self-defense, to
avenge injuries and punish wrongs, and over religious
differences. Restraint means that the least amount of
force possible under the circumstances should be used
and only when necessary. Also termed just-war
theory. See BELLUM JUSTUM.
jus urbanorum praediorum. See urban servitude (2)
under SERVITUDE (2).
jus utendi (jdS yoo-ten-dI), n. [Latin "right of using"]
Roman & civil law. The right to use another's property
without consuming it or destroying its substance. See
USUFRUCT. Cf. JUS ABUTENDI.
jus vindicandi (jas vin-di-kan-dl). Roman law. An
owner's right to recover lost possession even from a
bona fide possessor who has given value . This right,
which generally does not exist under modern law, had
many exceptions_ See R.W. Lee, An Introduction to
Roman-Dutch Law 433 (4th ed. 1946).
jus vitae necisque (jas VI-tee ni-sis-kwee). [Latin "right of
life and death "] Roman law. The power held by the head
of the household over persons under his paternal power
and over his slaves . This right was greatly dimin
ished under later Roman law. See patria potestas under
POTESTAS.
juvenile (joo-v<l-n<ll or -ml), n. (18c) A person who has
not reached the age (usu. 18) at which one should be
treated as an adult by the criminal-justice system;
MINoR.[Cases: Infants ~68.5.1 -juvenile, adj.
juvenility (joo-va-nil-a-tee), n.
certified juvenile. (1971) A juvenile who has been certi
fied to be tried as an adult.
juvenile court. See COURT.
juvenile-court judge. See JeDGE.
juvenile delinquency. (1816) Antisocial behavior by a
minor; esp., behavior that would be criminally pun
ishable if the actor were an adult, but instead is usu.
punished by special laws pertaining only to minors. Cf.
INCORRIGIBIUTY. [Cases: Infants (:::::> 153.J
"'juvenile delinquency; when employed as a technical term
rather than merely a descriptive phrase, is entirely a leg
islative product ...." Rollin M. Perkins & Ronald N. Boyce,
Criminal Law940 (3d ed. 1982).
Juvenile Delinquency Prevention Act. A federal statute
whose purpose is (1) to help states and local communi
ties provide preventive services to youths who are in
danger ofbecoming delinquent, (2) to help in training
personnel employed in or preparing for employment in
occupations that involve the provision ofthose services,
and (3) to give technical assistance in this field. 42
USCA 3801 et seq.
juvenile delinquent. (1816) A minor who is guilty of
criminal behavior, usu. punishable by special laws
not pertaining to adults. Sometimes shortened to
delinquent. Also termed juvenile offender; youthful
offender; delinquent minor. See OFFENDER. Cf. delin
quent child under CHILD. [Cases; Infants
Juvenile Justice and Delinquency Prevention Act.
A federal statute that provides funding, assistance,
training, and support to state-operated juvenile-jus
tice programs, initiatives, and court systems. 42 USCA
5601-5785.
juvenile-justice system. The collective institutions
through which a youthful offender passes until any
charges have been disposed of or the assessed pun
ishment has been concluded. -'{he system comprises
juvenile courts (judges and lawyers), law enforcement
(police), and corrections (probation officers and sodal
workers).
juvenile offender. See JUVENILE DEI.INQUENT.
juvenile officer. See OFFlCER (1). juvenile parole. See PAROLE.
juvenile petition. See PETITION.
juxta (j;)ks-t<}). [Latin] Near; following; according to.
juxta conventionem O;Jks-ta k;m-ven-shee-oh-n<lm).
[Latin] According to the covenant.
juxta formam statuti Oaks-ta for-m<lm sta-t[y]oO-tI).
[Latin] According to the form ofthe statute.
juxtaposition (jaks-ta-p<l-zish-,m), n. (17c) 1. The act or
an instance of plaCing two or more things side by side
or near one another. 2. Patents. See AGGREGATION.
juxtapose (jaks-ta-pohz), vb. juxtapositional, adj.
juxta ratam Oaks-ta ray-ti1m). [Latin] At or after the
rate.
juxta tenorem sequentem (j;Jks-t<'l ti1-nor-<lm si'I-kwen
ti'lm). [Latin] According to the tenor following.
juzgado (hoos-gah-doh). [Spanish "court"] 1. A court
oflaw, esp. one presided over by a Single judge. 2. A
courthouse.
K
K. abbr. Contract.
k/a. abbr. Known as.
Kaldor-Hicks efficiency. See WEALTH MAXIMIZATION.
kalendar. Archaic. See CALENDAR.
kalendarium (kal-Jn-dair-ee-Jm). [Latin] Roman law. 1.
A book of accounts in which a moneylender recorded
the names of debtors and the principal and interest due.
2. A written register ofbirths, recorded daily.
Kalends. See CALENDS.
kangaroo court. See COURT.
K.B. abbr. KING'S BENCH.
K.C. abbr. KING'S COUNSEL.
k.d., adj. abbr. (In a bill of lading) knocked down; not
assembled or set up . When goods, equipment, or the
~ike are shifped"in disassembled form, the bill oflading
IS marked k.d.
keelage (kee1-ij). Rist. 1. The right to demand payment
ofa toll by a ship entering or anchoring in a harbor. 2.
The toll so paid.
keelhaul (keel-hawl), vb. (17c) 1. Hist. To drag (a person)
through the water under the bottom of a ship as punish
ment or torture. 2. To rebuke or reprimand harshly.
Keeling Schedule. English law. A device that shows how
an existing statute will read if a proposed amendment
is adopted . A Keeling Schedule is usu. included as an
appendix to the proposed amendment. The schedule is
named for E.H. Keeling, a member ofParliament who
began promoting the use of schedules in 1938 as a way
to avoid amending legislation by reference. It is rarely
used today.
keeper. (15c) One who has the care, custody, or manage
ment of something and who usu. is legally responsible
for it <a dog's keeper> <a keeper oflost property>.
Keeper of the Briefs. See CUSTOS BREVIUM.
Keeper of the Broad Seal. See KEEPER OF THE GREAT
SEAL.
Keeper of the Great Seal. In England and Scotland,
an officer who has custody of the Great Seal and who
authenticates state documents of the highest impor
tance. In England, the duties of the Keeper of the
Great Seal are now discharged by the Lord Chancel
lor. Also termed Lord Keeper ofthe Great Seal; Lord
Keeper; Keeper ofthe Broad Seal; Custos Sigilli.
Keeper of the Hanaper. Hist. The head of the receiv
ing and accounting department in Chancery . The
Hanaper received fees collected on charters and letters
granted under the Great Seal and fines for Chancery
writs, paid Chancery staff wages, purchased office supplies, and accounted for the Chancery's revenues
and expenses.
Keeper of the King's Conscience. See LORD CHANCEL
LOR.
Keeper of the Privy Seal (priv-ee). 1. LORD PRIVY SEAL.
2. In Scotland and Cornwall, an officer similar to the
English Lord Privy Seal.
Keeper ofthe Rolls. See CUSTOS ROTULORUM.
Kellogg-Briand Pact. Int'llaw. A 1928 treaty under
which the United States, France, and (by 1933) 63 other
nations purported to outlaw war and pledged to settle
future differences through diplomacy . Among the
signatories were Germany, Japan, and Italy nations
whose acts ofaggression lead to World War II. 46 Stat.
2343, T.S. No. 796. Also termed Pact ofParis.
kenning to a terce |
343, T.S. No. 796. Also termed Pact ofParis.
kenning to a terce. Hist. Scots law. The sheriff's deter
mination ofwhich tracts or parts of a decedent's land
belong to a widow; esp., a sheriff's assignment of
dower.
Keogh plan (kee-oh). (1952) A tax-deferred retirement
program developed for the self-employed . This plan
is also known as an H.R. 10 plan, after the House of
Representatives bill that established the plan. -Also
termed self-employed retirement plan. Cf. INDIVIDUAL
RETIREMENT ACCOUNT. [Cases: Internal Revenue
4381.]
Ker-Frisbie rule. (1974) The principle that the gov
ernment's power to try a criminal defendant is not
impaired by the defendant's having been brought back
illegally to the United States from a foreign country.
Ker v. Illinois, 119 U.S. 436, 7 S.Ct. 225 (1886); Frisbie
v. Collins, 342 U.S. 519,72 S.Ct. 509 (1952).
Ketubah (ke-too-vah), n. Jewish law. A prenuptial agree
ment, signed by at least two independent witnesses, in
which a husband promises to support his wife and to
pay her a certain sum of money ifthe couple divorces.
Ifthe couple is still married when the husband dies,
the sum promised upon divorce becomes the primary
debt to be paid out of the husband's estate. The terms of
a Ketubah are often enforceable in secular courts under
general contract-law principles.
keyage (kee-;}j). See QUAYAGE.
KeyCite, vb. (1997) To determine the subsequent history
of(a case, statute, etc.) by using the online citator ofthe
same name to establish that the point being researched
is still good law. KeyCiting, n.
key-employee life insurance. See LIFE INSURANCE.
key encryption. A software-cryptography system that
generates and employs a secure key pair, one public
key and one private key, to verify a digital signature
and decipher a secure, coded document. The public
948 key-executive insurance
key is known to all possible receivers ofa message. The
private key is known only to the message's sender. Key
encryption transforms the message's characters into an
indecipherable "hash." A person who has the signer's
public key can decipher the message and detect whether
it has been altered and whether it was transmitted using
the sender's private key. It does not necessarily identify
the sender; identity is verified using a digital certifi
cate. Also termed public-key encryption. -Abbr.
PKE. See DIGITAL CERTIFICATE; HASH.
key-executive insurance. See key-employee insurance
under INSURANCE.
key man. See KEY PERSON.
key-man insurance. See key-employee life insurance
under LIFE INSURANCE.
key money. (1948) 1. Payment (as rent or security)
required from a new tenant in exchange for a key to
the leased property. [Cases: Landlord and Tenant 9
88(2).]2. Payment made (usu. secretly) bya prospective
tenant to a landlord or current tenant to increase the
chance of obtaining a lease in an area where there is a
housing shortage. -Key money in the first sense is a
legal transaction; key money in the second sense is usu.
an illegal bribe that violates hOUSing laws.
key-number system. (1909) A legal-research indexing
system developed by West Publishing Company (now
the West Group) to catalogue American caselaw with
headnotes. _ In this system, a number designates a
point oflaw, allowing a researcher to find all reported
cases addressing a particular point by referring to its
number.
key person. An important officer or employee; a person
primarily responsible for a business's success. -Also
termed key man.
key-person insurance. See key-employee insurance
under INSURANCE.
kickback, n. (I920) A return of a portion ofa monetary
sum received, esp. as a result of coercion or a secret
agreement <the contractor paid the city official a 5%
kickback on the government contract>. -Also termed
payoff. Cf. BRIBERY.
kicker. 1. An extra charge or penalty, esp. a charge added
to a loan in addition to interest. 2. An equity partici
pation that a lender seeks as a condition for lending
money, so that the lender may participate in rentals,
profits, or extra interest.
kickout clause. (1983) A contractual provision allowing
a party to end or modify the contract ifa specified event
occurs <under the kickout clause, the company could
refuse to sell the land if it were unable to complete its
acquisition ofthe new headquarters>.
kiddie tax. See TAX.
kidnap, vb. (l7c) To seize and take away (a person) by
force or fraud, often with a demand for ransom.
kidnapping. (17c) 1. At common law, the crime offorcibly
abducting a person from his or her own country and
sending the person to another. -This offense amounted to false imprisonment aggravated by moving the victim
to another country. 2. The crime ofseizing and taking
away a person by force or fraud. Also termed simple
kidnapping; (loosely) abduction; (archaically) mansteal
ing. See ABDUCTION. [Cases: Kidnapping C='14.]
"At early common law, kidnapping required a forcible
asportation of the victim to another country. Under modern
statutes, the asportation need not be this extensive."
Arnold H. Loewy, Criminal Law in a Nutshell 64 (2d ed.
1987).
aggravated kidnapping. (1943) Kidnapping accompa
nied by some aggravating factor (such as a demand
for ransom or injury of the victim).
child-kidnapping. (1978) The kidnapping of a minor,
often without the element offorce or fraud (as when
someone walks off with another's baby). -Also
termed child-stealing; baby-snatching; childnapping.
kidnapping by cesarean. The kidnapping ofa newborn
baby by a person who causes the unlawful and forcible
delivery of the baby by cesarean section without the
mother's consent. -The kidnapper is usu. a woman
of childbearing age who has lost a baby or is unable
to bear one. -Also termed newborn kidnapping by
cesarean section.
kidnappingfor ransom. (1909) The offense of unlaw
fully seizing a person and then confining the persoll,
usu. in a secret place, while attempting to extort
ransom. _ This grave crime is sometimes made a
capital offense. In addition to the abductor, a person
who acts as a go-between to collect the ransom is gen
erally considered guilty ofthe crime. [Cases: Kidnap
ping (;::::> 19.]
newborn-kidnapping by cesarean section. See kidnap
ping by cesarean.
parental kidnapping. (1984) The kidnapping of a
child by one parent in violation of the other parent's
custody or visitation rights. See PARENTAL KIDNAP
PING PREVENTION ACT.
simple kidnapping. (1943) Kidnapping not accompa
nied by an aggravating factor.
kidnapping by cesarean. See KIDNAPPING.
kill, vb. (14c) To end life; to cause phYSical death. -The
word is also used figuratively in putting an end to
something <opponents were able to kill the proposed
amendment>.
killer amendment. See AMENDMENT (3).
killing by misadventure. See ACCIDENTAL KILLING.
killing with malice. See MALICIOUS KILLING.
kin, n. (bef. 12c) l. One's relatives; family. Also termed
kindred. [Cases: Descent and Distribution C=:20-43;
Wills C:.:J 508.J 2. A relative by blood, marriage, or
adoption, though usu. by blood only; a kinsman or
kinswoman. See NEXT OF KIN.
kinbote. See manbote under BOTE (2).
kind arbitrage. See ARBITRAGE.
949
kindlie (kInd-lee). Scots law. A tenant's right to a lease's
renewal.
kindred. 1. See KIN. 2. See KINSHIP.
king. 1. A man who possesses, in his own right, the sov
ereignty and royal power in a monarchy. Cf. QUEEN
(1). 2. (cap.) English law. 1he British government; the
Crown. See CROWN.
"In modern times it has become usual to speak of the Crown
rather than of the King, when we refer to the King in his
public capacity as a body politic. We speak of the property
of the Crown, when we mean the property which the King
holds in right of his Crown. So we speak of the debts due
by the Crown, of legal proceedings by and against the
Crown, and so on. The usage is one of great convenience,
because it avoids a difficulty which is inherent in all speech
and thought concerning corporations sole, the difficulty,
namely, of distinguishing adequately between the body
politic and the human being by whom it is represented and
whose name it bears." John Salmond, Jurisprudence 341-42
(Glanville L. Williams ed., 10th ed. 1947).
King's advocate. See LORD ADVOCATE.
King's Bench. Historically, the highest common
law court in England, presided over by the reigning
monarch. _ When a queen begins to reign, the name
automatically changes to Queen's Bench. In 1873,
during Queen Victoria's reign, the court's jurisdiction
was transferred to the Queen's Bench Division of the
High Court of Justice. Abbr. K.B. Also termed
Court oiKing's Bench; Coram Rege Court. Cf. QUEEN'S
BENCH; QUEEN'S BENCH DIVISION.
'The court of King's Bench is the highest court of ordinary
justice in criminal cases within the realm, and paramount to
the authority ofjustices of gaol delivery. and commissions
of oyer and terminer. It has jurisdiction over all criminal
causes, from high treason down to the most trivial misde
meanor or breach of the peace." 1Joseph Chitty, A Practical
Treatise on the Criminal Law 156 (2d ed. 1826).
King's Chambers. In the United Kingdom, waters lying
within an imaginary line drawn from headland to
headland around the coast of Great Britain.
King's Counsel. In the United Kingdom, Canada, and
territories that have retained the rank, an elite, senior
level barrister or advocate. -Originally, a King's
Counsel was appointed to serve as counsel to the
reigning monarch. -Also termed senior counsel. -
Abbr. K.c. Cf. QUEEN'S COUNSEL.
King's Court. See CURIA REGIS.
King's evidence. See Queen's evidence under
EVIDENCE.
King's Great Sessions in Wales. See COURT OF GREAT
SESSIONS IN WALES.
King's peace. Hist. A royal subject's right to be protected
from crime (to "have peace") in certain areas subject
to the king's immediate control, such as the king's
palace or highway. _ A breach of the peace in one of
these areas subjected the offender to punishment in the
King's Court. Over time, the area subject to the King's
peace grew, which in turn increased the jurisdiction
of the royal courts. -Also written King's Peace. Cf.
AGAINST THE PEACE AND DIGNITY OF THE STATE. knight-service
"A breach of the King's Peace was at one time the most
comprehensive of all offences against the Crown; it indeed
included, and still includes, all the more serious crimes. At
one time, in fact, every indictment charged the accused
with an offence 'against the peace of our Sovereign Lord
the King'; and, though this form is no longer employed,
that is mainly because the imperative duty of not disturb
ing the King's Peace has by now evolved into an elaborate
system of Criminal Law." Edward Jenks, The Book ofEnglish
Law 134 (P.B. Fairest ed., 6th ed. 1967).
King's proctor. See QUEEN'S PROCTOR.
King's silver. Hist. Money paid in the Court of Common
Pleas for a license to levy a feudal fine; an amount due
on granting a conge d'accorder in levying a fine oflands.
-It amounted to three-twentieths of the supposed
annual value of the land, or ten shillings for every five
marks of land. -Also termed post-fine. See CONGE
D'ACCORDER; FINE (1).
kinship. Relationship by blood, marriage, or adoption.
Also termed kindred.
kinsman. See RELATIVE.
kinta!. See QUlNTAL.
kissing the Book. Hist. The practice of touching one's
lips to a copy of the Bible (esp. the New Testament) after
taking an oath in court. _ This practice -formerly
used in England was replaced by the practice of
placing one's hand on the Bible while swearing.
kitchen cabinet. See CABINET.
kiting. 1. CHECK-KITING. 2. Slang. Commercial law.
Raising money on credit, often by using accommoda
tion paper.
Klaxon doctrine (klak-s;m). (1966) Conflict oflaws. The
principle that a federal court exercising diversity juris
diction must apply the choice-of-Iaw rules of the state
where the court sits . In Klaxon Co. v. Stentor Elee.
lvlfg. Co., the Supreme Court extended the rule of Erie v.
Tompkins to |
. Stentor Elee.
lvlfg. Co., the Supreme Court extended the rule of Erie v.
Tompkins to choice-of-Iaw issues. 313 U.S. 487, 61 S.Ct.
1020 (194l). -Also termed Erie/Klaxon doctrine. See
ERIE DOCTRINE. [Cases: Federal Courts ~409.1.1
kleptomania (klep-td-may-nee-d), n. (1830) A compul
sive urge to steal, esp. without economic motive.
kleptomaniac, n. & adj.
knight. (bef. 12c) 1. Hist. In the Middle Ages, a person
of noble birth who, haVing been trained in arms and
chivalry, was bound to follow an earl, baron, or other
superio'r lord into battle. 2. In modern Britain, a man
upon whom the monarch has bestowed an honorary
dignity (knighthood) as a reward for personal merit of
some kind. -The status of knighthood no longer relates
to birth or possessions and does not involve military
service.
knight bachelor. See BACHELOR (3).
knight ofthe post. Hist. A hired perjurer.
knight-service. Hist. A type of lay tenure in which a
knight held land of another person or the Crown in
exchange for a pledge of military service. Also
termed knight's service; (Scots law) ward holding. Cf
BASE SERVICE; SOCAGE; VILLEINAGE.
"By far the greater part of England is held of the king by
knight's service (per servitium militare): it is comparatively
rare for the king's tenants in chief to hold by any of the
ather tenures. In order to understand this tenure we must
farm the conception of a unit of military service. That
unit seems to be the service of one knight or fully armed
horseman (servitium unius militis) to be dane to the king in
his army for forty days in the year, if it be called for." 1 Fred
erick Pollock & Frederic W. Maitland, The History ofEnglish
Law Before the Time of Edward I 254 (2d ed. 1898).
knight's fee. Hist. 1be amount ofland that gave rise to the
obligation ofknight-service . The amount varied from
less than a hide to more than six hides. See HIDE.
knight's service. See KNIGHT-SERVICE.
knock-and-announce rule. (1969) Criminal procedure.
The requirement that the police knock at the door
and announce their identity, authority, and purpose
before entering a residence to execute an arrest or
search warrant. ~Also termed knock-and-notice rule.
Cf. no-knock search warrant under SEARCH WARRANT;
no-knock search under SEARCH. (Cases: Searches and
Seizures ~54,143.1.]
knock-for-knock agreement. (1949) An arrangement
between insurers whereby each will pay the claim of
its insured without claiming against the other party's
insurance.
knock in, vb. To rap on the courtroom door to announce
the entry of(one or more judges) <the law clerk, acting
as bailiff, knocked in the judges>.
knock off, vb. (1879) 1. To make an unauthorized copy
of (another's product), usu. for sale at a substantially
lower price than the original <the infringer knocked
off popular dress designs>. 2. Slang. To murder <the
gang leader was knocked offby one ofhis lieutenants>.
3. Slang. To rob or burglarize <the thieves knocked off
the jewelry store in broad daylight>.
knockoff, n. (1966) Intellectual property. An unauthor
ized counterfeit and usu. inferior copy of another's
product, esp. one protected by patent, trademark, trade
dress, or copyright, usu. passed off at a substantially
lower price than the original.
knock-out auction. See AUCTION.
know all men by these presents. (16c) Take note. _
This archaic form of address - a loan translation of
the Latin noverint universi per praesentes ~was tradi
tionally used to begin certain legal documents such as
bonds and powers of attorney, but in modern drafting
style the phrase is generally considered deadwood. See
NOVERINT UNIVERSI PER PRAESENTES. Cf. PATEAT UNI
VERSIS PER PRAESENTES.
know-how. (1838) The information, practical knowledge,
techniques, and skill required to achieve some practi
cal end, esp. in industry or technology. Know-how is
considered intangible property in which rights may be
bought and sold. See TRADE SECRET.
knowing, adj. (14c) 1. Having or showing awareness
or understanding; well-informed <a knowing waiver
of the right to counsel>. 2. Deliberate; conscious <a knowing attempt to commit fraud>. -knowingly,
adv.
knowing consent. See informed consent under CONSENT
(1).
knowledge. (14c) 1. An awareness or understanding ofa
fact or circumstance; a state ofmind in which a person
has no substantial doubt about the existence of a fact.
Cf. INTENT (1); NOTICE (1), (2); SCIENTER.
"It is necessary ... to distinguish between producing a
result intentionally and prodUCing it knowingly. Inten
tion and knowledge commonly go together, for he who
intends a result usually knows that it will follow, and he
who knows the consequences of his act usually intends
them. But there may be intention without knowledge. the
consequence being deSired but not foreknown as certai n
or even probable. Conversely, there may be knowledge
without intention, the consequence being foreknown as
the inevitable concomitant of that which is deSired, but
being itself an object of repugnance rather than desire,
and therefore not intended. When King David ordered Uriah
the Hittite to be set in the forefront of the hottest battle,
he intended the death of Uriah only, yet he knew for a
certainty that many others of his men would fall at the
same time and place." John Salmond, Jurisprudence 380-81
(Glanville L. Williams ed., 10th ed. 1947).
'''Knowingly' or 'knowledge' has a broad sweep when used
in connection with the element of a crime, and an untrue
representation has been 'knowingly' made if by one who
knows it is untrue, believes it is untrue or is quite aware
that he has not the slightest notion whether it is true or
not." Rollin M. Perkins & Ronald N. Boyce, Criminal Law
379 (3d ed. 1982).
"[BJecause there are several areas of the criminal law
in which there may be good reason for distinguishing
between one's objectives and [one's] knowledge, the
modern approach is to define separately the mental states
of knowledge and intent .... This is the approach taken in
the Model Penal Code [ 2.02(2)(a) & (b)]." Wayne R. LaFave
& Austin W. ScottJr., Criminal Law 218 (2d ed. 1986).
actual knowledge. (16c) 1. Direct and clear knowledge,
as distingUished from constructive knowledge <the
employer, haVing witnessed the accident, had actual
knowledge of the worker's injury>. Also termed
express actual knowledge. 2. Knowledge of informa
tion that would lead a reasonable person to inquire
further <under the discovery rule, the limitations
period begins to run once the plaintiff has actual
knowledge of the injury>. ~Also termed (in sense
2) implied actual knowledge.
"The third issue in section 523(a)(3) is the meaning of
'notice or actual knowledge.' Under the Uniform Commer
cial Code knowledge means actually knowing something;
notice means having received information from which
one could infer the existence of the relevant fact. What
the adjective 'actual' adds to the idea of 'knowledge' is
unclear." David G. Epstein et aI., Bankruptcy 7-27, at 516
(1993).
common knowledge. See COMMON KNOWLEDGE.
constructive knowledge. (18c) Knowledge that one
using reasonable care or diligence should have, and
therefore that is attributed by law to a given person
<the court held that the partners had constructive
knowledge ofthe partnership agreement even though
none ofthem had read it>.
express actual knowledge. See actual knowledge (1).
firsthand knowledge. See personal knowledge.
implied actual knowledge. See actual knowledge (2).
imputed knowledge. (18c) Knowledge attributed to
a given person, esp. because of the person's legal
responsibility for another's conduct <the principal's
imputed knowledge ofits agent's dealings>.
personal knowledge. (17c) Knowledge gained through
firsthand observation or experience, as distinguished
from a belief based on what someone else has said.
Rule 602 of the Federal Rules of Evidence requires lay
witnesses to have personal knowledge ofthe matters
they testify about. An affidavit must also be based on
personal knowledge, unless the affiant makes it clear
that a statement relies on "information and belief."
Also termed firsthand knowledge. [Cases: Witnesses
(;::::37(2).J
reckless knowledge. (1911) A person's awareness that
a prohibited circumstance may exist, regardless of
which the person accepts the risk and goes on to
act.
scientific knowledge. (17c) Evidence. Knowledge that is
grounded on scientific methods that have been sup
ported by adequate validation. -Four primary factors
are used to determine whether evidence amounts to
scientific knowledge: (1) whether it has been tested; (2) whether it has been subjected to peer review and
publication; (3) the known or potential rate of error;
and (4) the degree of acceptance within the scientific
community. See DAUBERT TEST; SCIENTIFIC METHOD.
[Cases: Criminal Law (>::::>486; Evidence (>::::>555.]
superior knowledge. (17c) Knowledge greater than that
of another person, esp. so as to adversely affect that
person <in its fraud claim, the subcontractor alleged
that the general contractor had superior knowledge
of the equipment shortage>. [Cases: Fraud 17,
23; Negligence (>::::> 1088, 1286(2).]
2. Archaic. CARNAL KNOWLEDGE.
knowledge-of-falsity exclusion. See EXCLUSION (3).
known creditor. See CREDITOR.
known heir. See HEIR.
known-loss doctrine. Insurance. A principle denying
insurance coverage when the insured knows before
the policy takes effect that a specific loss has already
happened or is substantially certain to happen.
Also termed known-risk doctrine. [Cases: Insurance
C:"=-2101,226l.]
koop (ka-w;lp), n. [Dutch] Dutch law. Purchase;
bargain.
koopbrief(ka-w;lp-breef). [Dutch] Dutch law. A deed
ofsale.
L
1. abbr. 1. LAW (5). 2. LORD (1). 3. LOCUS. 4. LATIN.
1. A measure of the money supply, including M3 items
plus banker's acceptances, T-bills, and similar long
term investments. See M3.
label, n. (17c) 1. Trademarks. An informative display
of written or graphic matter, such as a logo, title, or
similar marking, affixed to goods or services to identify
their source . A label may be put on the packaging or
container of a manufactured product, or on the pack
aging or surface ofa natural substance. [Cases: Trade
marks 1057(1). 2. Any writing (such as a codicil)
attached to a larger writing. 3. A narrow slip of paper
or parchment attached to a deed or writ in order to
hold a seal.
label-and-significant-characteristics test. Securities.
The rule that an instrument will be governed by the
securities laws if it is labeled a stock and has the sig
nificant characteristics typically associated with shares
of stock.
labeHng. Under the Federal Food, Drug, and Cosmetic
Act, any label or other written, printed, or graphic
matter that is on a product or its container, or that
accompanies the product . To come within the Act,
the labeling does not need to accompany the product.
It may be sent before or after delivery of the product, as
long as delivery of the product and the written material
are part of the same distribution program. [Cases: Food
C=>15; Health C-~31l.]
label license. See LICENSE.
labes realis quae rei inhaeret (lay-beez ree-ay-lis kwee
ree-I in-heer-it). [Latin] Scots law. A real defect that
attaches to the thing. Cf. VITIUM REALE.
"Theft, also, constitutes a {abes realis in the title of any
one holding the subject stolen, no matter how honestly he
may have acquired it; and on this defect, which attaches
to it until it return to his possession, the true owner may
vindicate his right, and recover his subject wherever it can
be found." John Trayner, Trayner's Latin Maxims 312 (4th
ed,1894).
labina (l;)-bI-na), n. Archaic. Land covered by water;
swampland.
la bomba (I;) bom-ba). (sometimes cap.) An incendiary
device consisting of a plastic bag filled with fuel and
placed inside a paper bag stuffed with tissue and rigged
with a fuse . A person who uses such a device to start
a fire violates the federal arson statute. See 18 USCA
844(j). [Cases: Explosives C=>4.]
labor, n. 1. Work ofany type, including mental exertion
<the fruits of one's labor>. _ The term usu. refers to
work for wages as opposed to profits.
child labor. See CHILD LABOR.
spousal labor. See SPOUSAL LABOR. 2. Workers considered as an economic unit or a politi
cal element <a dispute between management and labor
over retirement benefits>. 3. A Spanish |
ers considered as an economic unit or a politi
cal element <a dispute between management and labor
over retirement benefits>. 3. A Spanish land measure
equal to 1771/7 acres. This measure has been used in
Mexico and was once used in Texas.
labor, vb. (I4c) 1. To work, esp. with great exertion
<David labored long and hard to finish the brief on
time>. 2. Archaic. To tamper with or improperly
attempt to influence (a jury). This sense derives from
the idea that the tamperer "endeavors" to influence the
jury's verdict. See EMBRACERY. -laborer, n.
labor agreement. See COLLECTIVE-BARGAINING AGREE
MENT.
laborariis (lay-b;)-rair-ee-is), n. [Latin "about laborers"]
Hist. An ancient writ against a person who had no other
means of support but refused to work throughout the
year.
laboratory conditions. Labor law. The ideal condi
tions for a union election, in which the employees
may exercise free choice without interference from the
employer, the union, or anyone else. [Cases: Labor and
Employment C=; 1193.]
labor contract. See COLLECTIVE-BARGAINING AGREE
MENT.
labor-desert model. The view that the inventive process
results from the inventor's labor to create something of
added value to society, and that this added value justifies
some social reward ("just deserts") to the inventor.
Also termed value-added model. Cf. EUREKA MODEL;
LABOR MODEL.
labor dispute. (1907) A controversy between an employer
and its employees concerning the terms or conditions
of employment, or concerning the association or rep
resentation of those who negotiate or seek to negotiate
the terms or conditions of employment. [Cases: Labor
and Employment C=> 1340.]
Labor Disputes Act. See NORRIS-LAGUARDIA ACT.
laborer. (l4c) 1. A person who makes a living by physical
labor. 2. WORKER.
laborer's lien. See mechanic's lien under LIEN.
laboring a jury. See EMBRACERY.
labor law. The field of law governing the relationship
between employers and employees, esp. law govern
ing the dealings of employers and the unions that rep
resent employees. Also termed industrial law. See
NATIONAL LABOR RELATIONS ACT. [Cases: Labor and
Employment (;:::::960.]
labor-management relations. (1947) The broad
spectrum of activities concerning the relationship
between employers and employees, both union and
953
nonunion. See FAIR LABOR STANDARDS ACT; NATIONAL
LABOR RELATIONS ACT; NATIONAL LABOR RELATIONS
BOARD.
Labor-Management Relations Act. A federal statute,
enacted in 1947, that regulates certain union activities,
permits suits against unions for proscribed acts, pro
hibits certain strikes and boycotts, and provides steps
for settling strikes involving national emergencies. 29
USCA 141 et seq. Also termed Taft-Hartley Act.
See NATIONAL LABOR RELATIONS BOARD.
labor model. The view that the inventive process is the
product of the inventor's labor, and the invention is
therefore the property of the inventor by natural right.
See LOCKE AN LABOR THEORY. Cf. EUREKA MODEL,
LABOR-DESERT MODEL.
labor organization. See UNION.
labor-relations act. (1935) A statute regulating relations
between employers and employees. -Although the
Labor-Management Relations Act is the chief federal
labor-relations act, various states have enacted these
statutes as welL
Labor Relations Board. See NATIONAL LABOR RELA
TIONS BOARD.
labor theory. See LOCKEAN LABOR THEORY.
labor union. See GNION.
lacca. See LACTA.
Lacey Act. A federal law, originally enacted in 1900, that
permits states to enforce their own game laws prohib
iting the importation of animals from other states
or countries. 16 USCA 661 et seq. See GAME LAW.
[Cases: Game
la chambre des esteilles (l~ shahm-bra da zes-tay), n.
[French] Hist. The Star Chamber. See STAR CHAMBER,
COURT OF.
laches (Iach-iz). [Law French "remissness; slackness"]
(l4c) 1. Unreasonable delay in pursuing a right or
claim almost always an equitable one -in a way that
prejudices the party against whom relief is sought.
Also termed sleeping on rights. lCases: Equity (>67.]
"Early in Its history, Chancery developed the doctrine that
where the plaintiff in equity delayed beyond the period of
the statute applicable at law, relief would be refused on
the ground of laches even though no specific prejudice to
the defendant was shown. Today. in most states, there are
statutes of limitations applying to suits in equity. Despite
these, however, the doctrine still holds that even if the
delay is for a shorter period of time than that of the statute,
it may still bar equitable relief if it is unreasonable and
prejudicial to the defendant." John F. O'Connell, Remedies
in a Nutshell 16 (2d ed. 1985).
prosecution laches. Patents. In a claim for patent
infringement, the eqUitable defense that the patentee
did not timely enforce the patent rights. [Cases:
Patents (>289(2).]
2. The equitable doctrine by which a court denies
relief to a claimant who has unreasonably delayed in
asserting the claim, when that delay has prejudiced the 189S;0 9normis
party against whom reHefis sought. Cf. LIMITATION (3).
[Cases: Equity (>67.]
''The doctrine of laches ... is an instance of the exercise of
the reserved power of equity to withhold relief otherwise
regularly given where in the particular case the granting
of such relief would be unfair or unjust." William F. Walsh,
A Treatise on Equity 472 (1930).
laches, estoppel by. See estoppel by laches under
ESTOPPEL
Lackey claim. A prisoner's assertion that incarcera
tion on death row for a protracted period is cruel and
unusual punishment. Lackey v. Texas, 514 U.S. 1045,
ll5 S.Ct. 1421 (1995) (denying cert.). [Cases: Sentencing
and Punishment (>1795.]
lack-of-antecedent-basis rejection. See REJECTION.
lack of capacity. The disability of a person to create or
enter into a legal relation because ofsome special char
acteristic. See CAPACITY (2).
lack ofenablement. See NONENABLEMENT.
lack-of-enablement rejection. See nonenablement rejec
tion under REJECTION (3).
lack of jurisdiction. See WANT OF JURISDICTION.
lack ofprosecution. See WANT OF PROSECUTION.
lack-of-utility rejection. See REJECTION.
lacta (lak-t~), n. [Law Latin] His/. Lack of or defect in the
weight of money. -Also termed lacca.
l'acte de l'etat civil. See ACTE (1).
lada (lay-dd), n. [Law Latin]l. Hist. A court ofjustice.
2. A canal for draining marshy ground; a watercourse;
a lade.
lade (layd), n. Hist. The mouth ofa river. -Also spelled
lode.
i laden in bulk, adj. Maritime law. (Of a vessel) loaded
, with a cargo that lies loose in the hold instead of
packaged. -Cargoes of corn, salt, and similar items
are usu. shipped in bulk.
lading, bill of. See BILL OF LADING.
i lady. (bef. 12c) In Britain, a title belonging to the wife
ofa peer, (by courtesy) the wife ofa baronet or knight,
or any Single or married woman whose father was a
I nobleman carrying a rank ofearl or higher.
lady-court. Hist. The court ofa lady of the manor.
i Lady Day. See quarter day under DAY.
lady's friend. Hist. The title of an officer in the English
House of Commons, whose duty was to secure a suitable
provision for a wife when her husband sought a parlia
mentary divorce. _ In 1857, parliamentary divorces and
the office oflady's friend were abolished by statute.
laenland. See LOANLAND.
laesa majestas (Iee-zd m~-jes-tas). See LESE MAJESTY.
laesio enormis (Iee-shee-oh i-nor-mis). [Law Latin
"excessive loss" or "abnormal loss of more than half"]
Roman c.~ civil law. 1. The sale ofa thing for which the
buyer paid less than half of its real value. -The seller
954 laesio ultra dimidium vel enormis
could rescind the sale, but the buyer could keep the
item purchased by paying the full value. Generally,
this doctrine was limited to land sales. 2. The injury
sustained by one party to an onerous contract when
the overreaching party receives twice the value ofthat
party's money or property, such as a purchaser who
pays less than halfofthe value ofthe property sold, or
a seller who receives more than double the property's
value. If coowner coheirs partition or sell property,
laesio enormis may exist when the purchaser pays less
than one-fourth of the value rather than one-half.
See La. Civ. Code arts. 824, 1406. -Also spelled lesio
enormis. -Also termed lesion; enorm lesion; (in full)
laesio enormis vel ultra dimidium (lee-shee-oh i-nor
mis vel al-tra di-mid-ee-Clm); (in Louisiana) lesion
beyond moiety.
"Lesion (/aesio enormis) was the rule, established very late,
that a seller could rescind a contract if he had received less
than half its real value .... [l]n spite of its imperfections,
lesion not only was adopted in all modern civilian systems
(French Code Civil 1674-1683), but became the means of
testing the validity of contracts generally by their fairness,
a principle embodied in the German Civil Code (section
138) and the Swiss Code of Obligations (section 21). Such
a test is no more difficult to apply in law than in eqUity,
where it has long been established in our system. As the
Romans applied it, it was a clumsy and inadequate way of
reaching this result. In modern courts, in ciVil-law coun
tries, it invests judges with a discretion not very likely to be
abused, but sufficient to act as a deterrent to the grosser
forms of economic exploitation." Max Radin, Handbook of
Roman Law 233-34 (1927).
laesio ultra dimidium vel enormis. See LAESIO
ENORMIS.
laesiwerp (lee-za-wClrp), n. [Saxon fr. laisus "bosom" +
werpire "to surrender"] Hist. A thing surrendered to
another's hands or power; a thing given or delivered.
laet (layt), n. Hist. A person of a class between servile
and free.
laga. See LAGE.
lagan (lag-Cln), n. (17c) 1. Goods that are abandoned at
sea but attached to a buoy so that they may be recov
ered. Also termed lagend; lagon; ligan; ligen; logan.
Cf. FLOTSAM; JETSAM; WAVESON. 2. Archaic. Wreckage
or cargo lying on the seabed.
lage (law or lay), n. [fro Saxon lag "law"] Hist. 1. Law. 2.
The territory in which certain law was in force, such
as danelage, mercenlage, and West-Saxon lage . This
term is essentially an obsolete form ofthe word law.
Also termed lagh; laga; lagu. See DANELAW; MERCEN
LAGE; WEST-SAXON LAW.
lage day (law day). A law day; a juridical day; a day of
open court. Also termed lagh day.
lageman (law-man or lay-man). See LEGALIS HOMO.
lagend (lag-and). See LAGAN.
lagging economic indicator. See ECONOMIC INDICA
TOR.
lagging indicator. See INDICATOR.
lagh day. See LAGE DAY. lagon (lag-an). See LAGAN.
lagu. See LAGE.
lahman (law-mCln or lay-man), n. [Saxon fro lah "law"]
Archaic. A lawyer. Also termed lagemannus.
laicus (laY-Cl-kas), n. [Law Latin] Rist. A layman; one who
is not in the ministry.
Laidlaw vacancy. Under the National Labor Relations
Act, a genuine opening in an employer's workforce,
resulting from the employer's expanding its work
force or discharging a particular employee, or from
an employee's resigning or otherwise leaving the
employment . The opening must be offered to striking
workers, in order of seniority, after a strike has been
resolved. Laidlaw Corp. v. NLRB, 414 F.2d 99 (7th Cir.
1969).
lairwite (lair-WIt), n. [fro Saxon lagan "to lie" + wite
"a fine"] Rist. A fine for adultery or fornication paid
to the lord of the manor; esp., a lord's privilege of
receiving a fine for fornication with the lord's female
villeins. -Also termed lairesite; lecherwite (lech-Clr
WIt); legerwite; leirwita; leyerwite; legenita (la-jen-Cl-tCl);
legruita (lCl-groo-a-ta).
lais gents (lay zhon[ tsD, n. pl. [Law French] R |
Cl-groo-a-ta).
lais gents (lay zhon[ tsD, n. pl. [Law French] Rist. Laymen;
a jury.
laissez-faire (les-ay-fair), n. [French "let (people) do
(as they choose),'] (1825) 1. Governmental abstention
from interfering in economic or commercial affairs.
2. The doctrine favoring such abstention. -laissez
faire, adj.
laity (laY-Cl-tee). (I5c) Collectively, persons who are not
members ofthe clergy. [Cases: Religious Societies C:=c
7.]
lake, n. (l2c) 1. A large body of standing water in a
depreSSion ofland or basin supplied from the drainage
of an extended area; esp., a natural depression in the
surface ofthe earth containing a reasonably permanent
body ofwater that is substantially at rest. [Cases: Waters
and Water Courses ~-::> 108.2. A widened or expanded
part ofa river.
Lambeth degree (lam-bath). Hist. A degree conferred by
the Archbishop ofCanterbury, rather than by a univer
sity, as authorized under the Ecclesiastical Licenses Act
of 1533 (25 Hen. 8, ch. 21). 'The degrees were conferred
in music, theology, law, and medicine.
Lamb-Weston rule. Insurance. The doctrine that, when
two insurance policies provide coverage for a loss, and
each of them contains an other-insurance clause
creating a conflict in the order or apportionment of
coverage both ofthe other-insurance clauses will
be disregarded and liability will be prorated between
the insurers. Lamb-Weston, Inc. v. Oregon Auto. Ins.
Co., 341 P.2d 110 (Or. 1959). [Cases: Insurance
2112,2762.]
lame duck. (1910) An elected official serving out a term
after a successor has been elected. [Cases: Officers and
Public Employees C:=cSO.]
lame-duck amendment. See TWENTIETH AMENDMENT.
955 land
lame-duck session. See SESSION (I).
Lammas. See quarter day under DAY.
lammas land. See LAND.
land, n. (bef. 12c) 1. An immovable and indestructible
three-dimensional area consisting of a portion of the
earth's surface, the space above and below the surface,
and everything growing on or permanently affixed to it.
2. An estate or interest in real property. [Cases: Estates
in Property C=> 1.]
"In its legal significance, 'land' is not restricted to the
earth's surface, but extends below and above the surface.
Nor is it confined to solids, but may encompass within its
bounds such things as gases and liquids. A definition of
'land' along the lines of 'a mass of physical matter occupy
ing space' also is not sufficient, for an owner of land may
remove part or all of that physical matter, as by digging
up and carrying away the soil, but would nevertheless
retain as part of his 'land' the space that remains. Ulti
mately, as a juristic concept, 'land' is simply an area of
three-dimensional space, its pOSition being identified by
natural or imaginary points located by reference to the
earth's surface. 'Land' is not the fixed contents of that
space, although, as we shall see, the owner of that space
may well own those fixed contents. Land is immoveable,
as distinct from chattels, which are moveable; it is also, in
its legal significance, indestructible. The contents of the
space may be physically severed, destroyed or consumed,
but the space itself, and so the 'land', remains immutable."
Peter Butt, Land Law 9 (2d ed. 1988).
accommodation land. (1843) Land that is bought by a
builder or speculator who erects houses or improve
ments on it and then leases it at an increased rent.
acquired federal land. (usu. pI.) Federal land that was
never in the public domain. Seefederal land.
acquired land. Land acquired by the government
from private hands or from another governmental
entity; esp., property acquired by the federal govern
ment from private or state ownership . This term is
frequently contrasted with publiC domain. -Also
termed acquired lands. See PUBLIC DOMAIN (1).
[Cases: Public Lands ~,)4.]
"'Acquired lands' are lands the United States acquired
from private or state owners by gift, purchase, exchange,
or condemnation. In most but not all cases, such lands
actually have been 'reacquired,' because the United States
previously had purchased or won them from foreign and
Indian sovereigns. Distinguishing between lands because
of ownership origins that go back over a century is a policy
with little to recommend it, but some statutes and judicial
opinions maintain the distinction." George Cameron
Coggins, Public Natural Resources Law 1.02[11 (1990).
arable land (ar-;1-b;1l). (16c) Land fit for cultivation.
Formerly also termed araturia; aralia; aratia.
bounty land. A portion ofpublic land given or donated
as a reward, esp. for military service. See MILITARY
BOUNTY LAND. [Cases: Public Lands (:::::>46.]
certificate land. Land in the western part of Pennsyl
vania set apart after the American Revolution to be
bought with certificates that the soldiers received in
lieu of pay. Cf. donation land.
Crown land. Demesne land of the Crown; esp., in
England and Canada, land belonging to the sovereign
personally, or to the government, as distinguished from land held under private ownership. -Also
termed demesne land of the Crown. See demesne
land.
demesne land (di-mayn or di-meen). Hist. Land
reserved by a lord for personal use.
donation land. Land granted from the public domain
to an individual as a gift, usu. as a reward for services
or to encourage settlement in a remote area . The
term was initially used in Pennsylvania to reward
Revolutionary War soldiers. Cf. certificate land.
[Cases: Public Lands ~~4S.J
earned land. Public land that is conveyed by a land
patent to a private person who has performed a
certain condition, usu. one spelled out in an earlier
grant. See PATENT (2).
enclosed land. (17c) Land that is actually enclosed and
surrounded with fences.
fabric land. Hist. Land given toward the maintenance,
repair, or rebuilding of a cathedral or other church.
This term derives from funds given ad fabricam
ecclesiae reparandam ("to repair the fabric of the
church").
"Fabrick-Lands are lands given towards the maintenance,
rebuilding, or repair of Cathedrals or other churches ....
In antient time almost everyone gave by his Will more or
less to the Fabrick of the Cathedral or Parish-Church where
he liv'd." Thomas Blount, Noma-Lexicon: A Law-Dictionarv
(1670).
fast land. (often pl.) (16c) Land that is above the high
water mark and that, when flooded by a government
project, is subjected to a governmental taking.
Owners of fast lands are entitled to just compensa
tion for the taking. See TAKING (2). [Cases: Eminent
Domain (:::::>2.17(5).]
federal land. (usu. pl.) Land owned by the United States
government. Federal lands are classified as public
lands (also termed "lands in the public domain") or
acquired federal lands, depending on how the land
was obtained. See acquired federal land. [Cases: Public
Lands C=>4.J
government land. See public land.
hide land. Hist. See HIDE.
improved land. (17c) Land that has been developed;
esp., land occupied by buildings and structures . The
improvements mayor may not enhance the value of
the land.
indemnity land. See INDEMNITY LAND.
lammas land (lam-;)s). Hist. Land over which persons
other than the owner have the right of pasturage
during winter, from lammas (reaping time) until
sowing time.
lieu land (loa). Public land within indemnity limits
granted in lieu of those lost within place limits.
[Cases: Public Lands C=>S3, 81.]
life land. Hist. Land leased for a term measured by
the life of one or more persons. -Also termed life
hold.
956 land,lawof
made land. Artificially formed land, usu.land that has
been reclaimed by filling or created by dredging.
mineral land. (18c) Land that contains deposits of
valuable minerals in quantities justifying the costs
of extraction and using the land for mining, rather
than agricultural Of other purposes.
place land. See INDEMNITY LAND.
public land. (17c) Lands Of land interests held by the
government, without regard to how the government
acquired ownership; unappropriated land belonging
to the federal or state government. Also termed
public lands; government land; public ground. [Cases:
Public Lands C=:> 1.]
'The terms 'public lands' and 'federal lands' may ... include
less than full fee interests, such as severed mineral estates.
They usually do not, however, refer to submerged lands
off the seacoasts (over which the United States asserts
jurisdiction but not title), or lands held in trust for Indians."
George Cameron Coggins et aI., Federal Public Land and
Resources Law 3 (3d ed. 1993).
reserved land. See RESERVATION (3).
riparian land. 1. Land that includes part ofthe bed
of a watercourse or lake. [Cases: Waters and "Vater
Courses C=:>40, 89, 109, In.] 2. Land that borders on a
public watercourse or public lake whose bed is owned
by the public. [Cases: Waters and Water Courses C=:>
39.]
school land. (18c) Public real estate set apart for sale
or exploitation by a state to establish and fund public
schools. [Cases: Public Lands G-'-::>51.J
seated land. (1822) Land that is occupied, cultivated,
improved, reclaimed, farmed, or used as a place of
residence, with or without cultivation.
settled land. Any land -or any interest in it that is
the subject ofany document that limited it to, or put
it into trust for, a person by way ofsuccession.
swamp and overflowed land. (1853) Land that, because
of its boggy, marshy, fenlike character, is unfit for cul
tivation, requiring drainage or reclamation to render
it available for beneficial use. -Such lands were
granted out of the U.S. public domain to the littoral
states by acts of Congress in 1850 and thereafter. 43
USCA 981 et seq. [Cases: Public Lands C=:>58.]
tideland. See TIDELAND.
unimproved land. 1. Raw land that has never been
developed, and usu. that lacks utilities. 2. Land that
was formerly developed but has now been cleared of
all buildings and structures.
withdrawn land. See RESERVATION (3).
land, law of. See LAW OF THE LAND.
land agent. See LAND MANAGER.
land bank. (1921) 1. A bank created under the Federal
Farm Loan Act to make loans at low interest rates
secured by farmland. [Cases: Agriculture ~;)3.2.]
2. A program in which land is retired from agricul
tural production for conservation or tree-cultivation purposes. Also termed soil bank. See FEDERAL HOME
LOAN BANK.
land boundary. See BOUNDARY.
land certificate. A document entitling a person to receive
from the government a certain amount ofland by fol
lowing prescribed legal steps . It contains an official
description ofthe land, as well as the name and address
of the person receiving the entitlement, and is prima
facie evidence of the truth of the matters it contains.
Also termed land warrant. [Cases: Public Lands
174.]
landcheap. Hist. A customary fine paid in money
or cattle when any real property within a manor or
borough was transferred.
land-conservation agreement. See land-conservation
easement under EASEMENT.
land-conservation easement. See EASEMENT.
land contract. See contract for deed under CONTRACT.
land cop. Hist. The sale ofland evidenced by the transfer
in court of a rod or festuca as a symbol of possession.
The seller handed the rod to the reeve and the reeve
handed it to the purchaser. The conveyance occurred
in court to provide better evidence of the transfer and
to bar the claims of expected heirs.
land court. See COURT.
land damages. See just compensation under COMPEN
SATION.
land department. A federal or state bureau that deter
mines factual matters regarding the control and
transfer ofpublic land . The federal land department
includes the General Land Office headed by the Secre
tary of the Interior. See DEPARTMENT OF THE INTERIOR.
[Cases: Public Lands C:::>94.]
land description. See LEGAL DESCRIPTION.
land district. See DISTRICT.
landed, adj. (lSc) 1. (Of a person) having an estate in
land. 2. (Of an estate, etc.) consisting ofland.
landed estate. See ESTATE (1).
landed-estates court. See COURT.
landed property. See landed estate under ESTATE (1).
landed security. See SECURITY.
landed servitude. See servitude appurtenant under SER
VITUDE (2).
landefricus (lan-dd-frI-bs). Hist. A landlord or lord of
the soil.
landegandman (lan-d,,-gand-m.m or lan-d"-g"nd-mdn).
Hist. A customary or inferior tenant of a manor.
land flip. (1988) Real estate. A transaction in which a
piece ofproperty is purchased for one price and imme
diately sold, usu. to a fictitious entity, for a much higher
price, to dupe a lender or later purchaser into thinking
that the property is more valuable than it actually |
, for a much higher
price, to dupe a lender or later purchaser into thinking
that the property is more valuable than it actually is.
land forces. See UNITED STATES ARMY.
land-gavel (land-gav-al). Hist. A tax or rent issuing from
land. Also spelled landgable; land-gabel; land-gafol.
See GAVEL (1), (2).
land grant. (1862) A donation ofpublic land to an indi
vidual, a corporation, or a subordinate government.
[Cases: Public Lands C--="42.]
private land grant. (1861) A land grant to a natural
person. See land patent under PATENT (2).
landhlaford (land-[h]lav-ard). Hist. A proprietor ofland;
a lord of the soil.
landholder. (17c) One who possesses or owns land.
land improvement. See IMPROVEMENT.
landing. (15c) 1. A place on a river or other navigable
water for loading and unloading goods, or receiving
and delivering passengers and watercraft. 2. The ter
mination point on a river or other navigable water for
these purposes. 3. The act or process of coming back
to land after a voyage or flight.
landing law. A law prohibiting the possession or sale
of fish or game that have been taken illegally. [Cases:
Fish 12.]
land lease. See ground lease under LEASE.
landlocked, adj. (17c) 1. Surrounded by land, with no way
to get in or out except by crossing the land of another
<because the tract was landlocked, the buyer claimed
an easement of necessity across the seller's property>.
2. (Of a country) surrounded by other nations, with no
access to major navigable waterways <the landlocked
nation had always been at a mercantile disadvantage to
its seafaring neighbors>.
landlord. (bef. 12c) 1. At common law, the feudal
lord who retained the fee of the land. -Sometimes
shortened to lord. 2. One who leases real property to
another. -Also termed (in sense 2) lessor. [Cases:
Landlord and Tenant (;:::> 1.]
absentee landlord. A landlord who does not live on the
leased premises; usu., one who lives far away. -Also
termed absentee management.
landlord-and-tenant relationship. See LANDI,ORD-TEN
ANT RELATIONSHIP.
landlord's hypothec. See HYPOTHEC.
landlord's lien. See LIEN.
landlord's warrant. See WARRANT (1).
landlord-tenant relationship. (1921) The legal relation
ship between the lessor and lessee of real estate . The
relationship is contractual, created by a lease (or agree
ment for lease) for a term ofyears, from year to year,
for life, or at will, and exists when one person occupies
the premises of another with the lessor's permission
or consent, subordinated to the lessor's title or rights.
There must be a landlord's reversion, a tenant's estate,
transfer ofpossession and control ofthe premises, and
(generally) an express or implied contract. - Also
termed landlord-and-tenant relationship. See LEASE.
[Cases: Landlord and Tenant 1.] landman. (1923) Oil & gas. A person responsible for
acquiring oil and gas leases, negotiating arrange
ments for development ofleases, and managing leased
properties. In this field, both men and women are
commonly known as landmen.
land manager. Oil & gas. A person who, usu. on behalf
of an oil company, contracts with landowners for the
mineral rights to their land. Also termed exploration
manager; land agent; landman.
landmark. (bef. 12c) 1. A feature of land (such as a
natural object, or a monument or marker) that demar
cates the boundary of the land <according to the 1891
survey, the crooked oak tree is the correct landmark
at the property's northeast corner>. [Cases: Boundar
ies C=c4, 5.] 2. A historically significant building or
site <the schoolhouse built in 1898 is the county's most
famous landmark>. See MONUMENT. [Cases: Environ
mental Law (;::::>61-103.]
landmark decision. (1913) A judicial decision that sig
nificantly changes existing law . Examples are Brown
v. Board of Educ., 347 U.S. 483, 74 S.Ct. 686 (1954)
(holding that segregation in public schools violates the
Equal Protection Clause), and Palsgraf v. Long Island
R.R., 162 N.E. 99 (N.Y. 1928) (establishing that a defen
dant's duty in a negligence action is limited to plaintiffs
within the apparent zone ofdanger that is, plaintiffs
to whom damage could be reasonably foreseen). Also
termed landmark case. Cf. LEADING CASE.
land office. (17c) A government office in which sales of
public land are recorded. [Cases: Public Lands
94.]
landowner. One who owns land.
landowner's royalty. See ROYALTY (2).
land patent. See PATENT (2).
land-poor, adj. (1873) (Of a person) owning a substan
tial amount of unprofitable or encumbered land, but
lacking the money to improve or maintain the land or
to pay the charges due on it.
land-preservation agreement. See land-conservation
easement under EASEMENT.
landreeve. Hist. A person charged with (1) overseeing
certain parts of a farm or estate, (2) attending to the
timber, fences, gates, buildings, private roads, and
watercourses, (3) stocking the commons, (4) watching
for encroachments of all kinds, (5) preventing and
detecting waste and spoliation by tenants and others,
and (6) reporting on findings to the manager or land
steward.
land revenue. See REVENUE.
Landrum-Griffin Act. A federal law, originally enacted
in 1959 as the Labor-Management Reporting and Dis
closure Act, designed to (1) curb corruption in union
leadership and undemocratic conduct in internal union
affairs, (2) outlaw certain types ofsecondary boycotts,
and (3) prevent so-called hot-cargo provisions in col
lective-bargaining agreements. See HOT CARGO.
958 lands
lands, n. pl. (14c) 1. At common law, property less exten
sive than either tenements or hereditaments. 2. By
statute in some states, land including tenements and
hereditaments. See HEREDITAMENTS; TENEMENT.
land sales contract. See contract for deed under
CONTRACT.
land scrip. A negotiable instrument entitling the holder,
usu. a person or company engaged in public service,
to possess specified areas of public land. See SCRIP (1).
[Cases: Public Lands (;::::J 135(1).]
lands, tenements, and hereditaments. (16c) Real
property. -The term was traditionally used in wills,
deeds, and other instruments.
land tax. See property tax under TAX.
land-tenant. See TERRE-TENANT.
Land Titles and Transfer Act. Hist. An 1875 statute
establishing a registry for titles to real property, and
providing for the transfer of lands and recording of
those transfers. 38 & 39 Vict., ch. 87. -The act is analo
gous in some respects to American recording laws, such
as those providing for a registry of deeds. A system
of title registration superseded this registry system in
1925.
land trust. See TRUST.
land trust certificate. An instrument granting the holder
a share ofthe benefits ofproperty ownership, while the
trustee retains legal title. See land trust under TRUST.
land-use planning. (1939) The deliberate, systematic
development of real estate through methods such as
zoning, environmental-impact studies, and the like.
Also spelled landuse planning. Also termed urban
planning. [Cases: Zoning and Planning
land-use regulation. An ordinance or other legisla
tive enactment governing the development or use of
real estate. Also spelled landuse regulation. [Cases:
Zoning and Planning (;::::J 1.]
"Public regulation of the use and development of land
comes in a variety of forms which generally focus on four
aspects of land use: (1) the type of use, such as whether
it will be used for agricultural, commercial, industrial, or
residential purposes; (2) the density of use, manifested
in concerns over the height, width, bulk, or environmen
tal impact of the physical structures on the land; (3) the
aesthetic impact of the use, which may include the design
and placement of structures on the land; and (4) the effect
of the particular use of the land on the cultural and social
values of the community, illustrated by community conflicts
over adult entertainment, housing for service-dependent
groups such as low income families and developmentally
disabled persons, and whether the term family should be
defined in land use regulations to include persons who are
not related by blood or marriage." Peter W. Salsich Jr., Land
Use Regulation 1 (1991).
land waiter. English law. A customhouse officer with the
responsibility ofexamining, tasting, weighing, measur
ing, and accounting for merchandise landing at any
port.
land warfare. See WARFARE.
land warrant. See LAND CERTIFICATE. Langdell system. See CASEBOOK METHOD.
langeman (lan-ja-m.:m), n. Hist. A lord of a manor. PI.
langemanni (lan-ja-man-I).
language. (14c) 1. Any organized means of convey
ing or communicating ideas, esp. by human speech,
written characters, or sign language <what language
did they speak?>. 2. The letter or grammatical import
ofa document or instrument, as distinguished from its
spirit <the language ofthe statute>.
languidus (lang-gwi-d;)s), n. [Law Latin "sick"] Hist. At
common law, a return of process made by the sheriff
when a defendant whom the sheriff had taken into
custody was too sick to be removed.
Lanham Act (lan-am). A federal trademark statute,
enacted in 1946, that provides for a national system
of trademark registration and protects the owner of
a federally registered mark against the use of similar
marks if any confusion might result or if the strength
ofa strong mark would be diluted. -The Lanham Act's
scope is independent of and concurrent with state
common law. 15 USCA 1051 et seq. Also termed
Federal Trademark Act; Trademark Act of1946.
lapidation (lap-::>-day-sh;)n), n. An execution by stoning
a person to death. -lapidate (lap-::>-dayt), vb.
lappage (Iap-ij). Interference; lap and overlap; conflict. -
Lappage applies when two different owners claim under
deeds or grants that, in part, cover the same land.
lapping. (1939) An embezzlement technique by which
an employee takes funds from one customer's accounts
receivable and covers it by using a second customer's
payment to pay the first account, then a third cus
tomer's payment to pay the second account, and so on.
[Cases: Embezzlement (;::::J 12.]
lapse, n. (16c) L The termination ofa right or privilege
because ofa failure to exercise it within some time limit
or because a contingency has occurred or not occurred.
2. Wills & estates. The failure of a testamentary gift,
esp. when the beneficiary dies before the testator. See
ANTILAPSE STATUTE. Cf. ADEMPTION. [Cases: Wills
774-777.J
lapse, vb. (18c) 1. (Of an estate or right) to pass away or
revert to someone else because conditions have not been
fulfilled or because a person entitled to possession has
failed in some duty. See lapsed policy under INSURANCE
POLICY. 2. (Of a devise, grant, etc.) to become void.
lapsed devise. See DEVISE.
lapsed legacy. See LEGACY.
lapsed policy. See INSURANCE POLICY.
lapse patent. See PATENT (2).
lapse statute. See ANTILAPSE STATUTE.
lapsus bonis (lap-s;)s boh-nis). [Latin] Scots law. Reduced
in worldly circumstances. -The phrase appeared in
reference to a person who was having temporary finan
cial difficulties.
959 laron
larcenable (lahr-sCl-I1J-bCll), adj. (1920) Subject to larceny
<because it cannot be carried away, real estate is not
larcenable>. [Cases: LarcenyC=>4-1O.]
larcenist, n. (1803) One who commits larceny. See
LARCENY.
larcenous (lahr-sCl-nJs), adj. (18c) 1. Of, relating to, or
characterized by larceny <a larcenous taking>. 2. (Of a
person) contemplating or tainted with larceny; thievish
<a larcenous purpose>.
larcenous intent. See INTENT (1).
larceny (lahr-sCl-nee), n. (15c) The unlawful taking and
carrying away ofsomeone else's personal property with
the intent to deprive the possessor of it permanently.
Common-law larceny has been broadened by some
statutes to include embezzlement and false pretenses,
all three ofwhich are often subsumed under the statu
tory crime of"theft. Cf. ROBBERY. [Cases: Larceny C:::)
1.]
'The criminal offence of larceny or theft in the Common Law
was intimately connected with the civil wrong of trespass.
'Where there has been no trespass,' said Lord Coleridge,
'there can at law common be no larceny.' Larceny. in other
words, is merely a particular kind of tres |
,
'there can at law common be no larceny.' Larceny. in other
words, is merely a particular kind of trespass to goods
which, by virtue of the trespasser's intent, is converted
into a crime. Trespass is a wrong, not to ownership but to
possession, and theft, therefore, is not the violation of a
person's right to ownership, but the infringement of his
possession, accompanied with a particular criminal intent."
4 Stephen's Commentaries on the Laws of Eng/and 72-73
(l. Crispin Warmington ed., 21st ed. 1950).
"[Tlhe distinctions between larceny, embezzlement and
false pretenses serve no useful purpose in the criminal
law but are useless handicaps from the standpoint of the
administration of criminal justice. One solution has been
to combine all three in one section of the code under the
name of 'larceny.' This has one disadvantage, however,
because it frequently becomes necessary to add a modifier
to make clear whether the reference is to common-law
larceny or to statutory larceny." Rollin M. Perkins & Ronald
N. Boyce, Criminal Law 389 (3d ed. 1982).
aggravated larceny. (1831) Larceny accompanied by
some aggravating factor (as when the theft is from a
person). -Also termed compound larceny. [Cases:
Larceny~23.]
complicated larceny. See mixed larceny.
compound larceny. 1. See aggravated larceny. 2. See
mixed larceny.
constructive larceny. (1827) Larceny in which the per
petrator's felonious intent to appropriate the goods is
construed from the defendant's conduct at the time
of asportation, although a felonious intent was not
present before that time. [Cases: Larceny (;:::::3(2).]
grand larceny. (1828) Larceny ofproperty worth more
than a statutory cutoff amount, usu. $100. Cf. petit
larceny. [Cases; Larceny C=>23.]
''The English law, as the result of an early statute [the Statute
of Westminster I, ch. 15 (1275)]. classified this offense
[larceny] as either (1) grand larceny or (2) petit larceny (now
frequently written petty larceny), the former being a capital
offense and the latter punishable by forfeiture of goods
and whipping, but not death. Both, as mentioned earlier,
were felonies. The offense was grand larceny if the value
of the property stolen exceeded twelve pence and petit larceny if it did not. Modern statutes very generally retain
this same classification (sometimes without using these
labels) but with different penalties and different values set
as the dividing line." Rollin M. Perkins & Ronald N. Boyce,
Criminal Law 335 (3d ed. 1982).
larceny by a constructive trespass. Larceny that occurs
when a property owner mistakenly gives another
person more property than is due, and the recipient
knows about the error but does not disclose it before
taking the excess property with the intent ofconvert
ing it to his or her own use.
larceny by bailee. Larceny committed by a bailee who
converts the property to personal use or to the use of
a third party. [Cases: Embezzlement (;:::::-, 16; Larceny
(;::::> 15.]
larceny by extortion. See theft by extortion under
THEFT.
larceny byfraud and deception. See larceny by trick.
larceny by trick. (1898) Larceny in which the taker
misleads the rightful possessor, by misrepresentation
of fact, into giving up possession of (but not title to)
the goods. - Also termed larceny by trick and decep
tion; larceny by trick and device; larceny by fraud and
deception. Cf. FALSE PRETENSES; cheating by false pre
tenses under CHEATING. [Cases: Larceny ~14.J
larceny from the person. (18c) Larceny in which the
goods are taken directly from the person, but without
violence or intimidation, the victim usu. being
unaware ofthe taking. Pickpocketing is a typical
example. This offense is similar to robbery except that
violence or intimidation is not involved. Cf. ROBBERY.
[Cases: LarcenyC=>19.]
larceny ofproperty lost, mislaid, or delivered by
mistake. See theft ofproperty lost, mislaid, or deliv
ered by mistake under THEFT.
mixed larceny. (18c) 1. Larceny accompanied by aggra
vation or violence to the person. Cf. simple larceny.
2. Larceny involving a taking from a house. -Also
termed compound larceny; complicated larceny.
petit larceny. (I6c) Larceny ofproperty worth less than
an amount fixed by statute. usu. $100. -Also spelled
petty larceny. Cf. grand larceny. [Cases: Larceny
23.]
simple larceny. (I8c) Larceny unaccompanied by aggra
vating factors; larceny ofpersonal goods unattended
by an act ofviolence. Cf. mixed larceny (1).
larger parcel. (1895) Eminent domain. A portion ofland
that is not a complete parcel, but is the greater part of
a bigger tract, entitling the owner to damages both for
the parcel taken and for its severance from the larger
tract. To grant both kinds of damages, a court gen
erally requires the owner to show unity ofownership,
unity of use, and contiguity ofthe land. But some states
and the federal courts do not require contiguity when
there is strong evidence ofunity ofuse. See ECONOMIC
UNIT. [Cases: Eminent Domain ~96, 135.]
laron (lar-dn), n. [Law French] Hist. A thief.
Larrison rule (lar-<>-s<}n). (19S2) Criminal law. The ! last heir. Hist. The person -either the lord ofthe manor
doctrine that a defendant may be entitled to a new trial
on the basis ofnewly discovered evidence offalse testi
mony by a government witness if the jury might have
reached a different conclusion without the evidence
and it unfairly surprised the defendant at trial. Larrison
v. United States, 24 F.2d 82 (7th Cir. 1928). [Cases:
Criminal Law (;=>942.]
"The most usual rule in cases in which it is claimed that
there was false testimony at the trial or that the witness
has since recanted is the 'Larrison rule,' taking its name
from the Seventh Circuit case in which it was announced.
This is that three requirements must be met before a new
trial will be granted on this ground: '(a) [That the] the court
is reasonably well satisfied that the testimony given by a
material witness [was] false. (b) That without it the jury
might have reached a different conclusion. (c) That the
party seeking the new trial was taken by surprise when the
false testimony was given and was unable to meet it for it
did not know of its falsity until after the triaL'" 3 Charles
Alan Wright, Federal Practice and Procedure 557.1, at 343
(2d ed. 1982) (quoting Larrison, 24 F.2d at 87-88).
lascivious (l<>-siv-ee-ds), adj. (1Sc) (Of conduct) tending
to excite lust; lewd; indecent; obscene.
lascivious cohabitation. See illicit cohabitation under
COHABITATION.
L'Association Litteraire et Artistique Internationale.
Copyright. An organization of authors, artists, and
other supporters ofinternational copyright protection.
In 1878, the Association drafted five resolutions that
would become the starting point for the Berne Conven
tion. In 1883, the organization called the first meeting
in Berne, Switzerland for the purpose of creating a
union to enforce international copyrights. Often
shortened to the International Association. -Abbr.
ALAI.
last, n. Hist. 1. A burden. 2. A measure of weight used
for bulky commodities.
last antecedent, rule ofthe. See RULE OF THE LAST ANTE
CEDENT.
last-dear-chance doctrine. (1904) Torts. The rule that a
plaintiff who was contributorily negligent may none
theless recover from the defendant ifthe defendant had
the last opportunity to prevent the harm but failed to
use reasonable care to do so (in other words, if the
defendant's negligence is later in time than the plain
tiff's). This doctrine allows the plaintiff to rebut the
contributory-negligence defense in the few jurisdic
tions where contributory negligence completely bars
recovery. Also termed discovered-peril doctrine;
humanitarian doctrine; last-opportunity doctrine;
subsequent-negligence doctrine; supervening-negligence
doctrine; doctrine ofultimate negligence; doctrine ofdis
covered peril; doctrine ofsubsequent negligence. [Cases:
Automobiles (;=>227; Negligence (;=>S30, 1297.)
last-employer rule. The doctrine that liability for an
occupational injury or illness falls to the employer
who exposed the worker to the injurious substance just
before the first onset of the disease or injury. Also
termed last-injurious-exposure rule. [Cases: Workers'
Compensation (;=>201.] or the sovereign -to whom lands come by escheat
when there is no lawful heir.
last illness. (1904) The sickness ending in the person's
death. Also termed last sickness.
last-in, first-out. (1934) An accounting method that
assumes that the most recent purchases are sold or
used first, matching current costs against current
revenues. Abbr. LIFO. Cf. FIRST-IN, FIRST-OUT;
NEXT-IN, FIRST-OUT. [Cases: Internal Revenue
31OS.1.]
last-injurious-exposure rule. See LAST-EMPLOYER
RULE.
last-in-time-marriage presumption. Family law. A pre
sumption that the most recently contracted marriage is
valid. -This presumption generally arises in a situation
similar to this: A person, believing himself or herself
to be divorced, remarries. This person dies, and the
new spouse makes a claim for the decedent's pension
benefits. Then a former spouse, claiming that there was
never a valid divorce, also claims the right to receive
the benefits. The last-in-time-marriage presumption
operates so that the former spouse bears the burden
of proving that there was no valid divorce. [Cases:
Marriage C"-:J40(S).]
last-link doctrine. (198S) The rule that an attorney
need not divulge nonprivileged information if doing
so would reveal information protected by the attor
ney-client privilege, particularly if the information
would provide essential evidence to support indicting
or convicting the client of a crime . This doctrine is
often relied on as an exception to the rule that a client's
identity is not privileged. For example, ifdivulging the
client's name would supply the last link of evidence
to indict or convict that client, the attorney need not
disclose the client's name. [Cases: Privileged Commu
nications and Confidentiality (;=> 146.]
last-opportunity doctrine. See LAST-CLEAR-CHANCE
DOCTRINE.
last-proximate-act test. (1961) Criminal law. A common
law test for the crime ofattempt, based on whether the
defendant does the final act necessary to commit an
offense (such as pulling the trigger of a gun, not merely
aiming it) . Most courts have rejected this test as being
too lenient. See ATTEMPT (2). [Cases: Criminal Law(;=>
44.]
last resort, court of. See court of last resort under
COURT.
last sickness. See LAST ILLNESS.
last-straw doctrine. Employment law. The rule that the
termination of employment may be justified by a series
of incidents of poor performance, not one of which
alone would justify termination, followed by a final
incident shOWing a blatant disregard for the employ
er's interests.
last-survivor life insurance. See LIFE INSURANCE.
961 lator
last-treatment rule. The doctrine that, for an ongoing
physician-patient relationship, the statute oflimita
tions on a medical-malpractice claim begins to run
when the treatment stops or the relationship ends.
[Cases: Limitation of Actions (:::::>55(3).]
last will. See WILL.
last will and testament. See last will under WILL.
lata culpa. See CULPA.
lata neglegentia (lay-tJ neg-1J-jen-shee-J). See NEGLE
GENTIA.
latching. A survey of a mine; an underground survey.
late, adj. (bel'. 12c) 1. Tardy; coming after an appointed
or expected time <a late filing>. 2. (Of a person) only
recently having died <the late Secretary of State>.
late charge. See CHARGE.
latecomer. See JU~IOR USER.
latens (lay-tenz), adj. [Latin] Hidden or unapparent.
latent (lay-tJnt), adj. (I5c) Concealed; dormant <a latent
defect>. Cf. PATENT.
latent ambiguity. See AMBIGUITY.
latent deed. See DEED.
latent defect. See hidden defect under DEFECT.
latent equity. See EQUITY.
latent intent. See dormant legislative intent under LEG
ISLATIVE INTENT.
latent intention. See dormant legislative intent under
LEGISLATIVE INTE~T.
lateral departure. See DEPART1lRE.
lateral sentencing. See lateral departure under DEPAR
TURE.
lateral support. See SUPPORT (4).
laterare (lat-J-ra |
under DEPAR
TURE.
lateral support. See SUPPORT (4).
laterare (lat-J-rair-ee). [Law Latin] Hist. To lie sideways,
rather than endways . lhis term was formerly used in
land descriptions.
late-term abortion. See ABORTION.
latifundium (lat-J-f;Jn-dee-dm), n. [Latin fro latus
"broad" +fundus "land"] Roman law. A large private
estate, common in the late Republic.
Latin. The language of the ancient Romans and a primary
language of the civil and canon law, and formerly of the
common law.
"The value of the Latin has always consisted in its peculiar
expressiveness as a language of law terms, in its superior
conciseness which has made it the appropriate language
of law maxims, and in its almost unlimited capacity of
condensation by means of abbreviations and contractions,
many of which are retained in popular use at the present
day." 2 Alexander M. Burrill, A Law Dictionary and Glossary
131 (2d ed. 1867).
"The Latin maxims have largely disappeared from argu'
ments and opinions. In their original phraseology they
convey no idea that cannot be well expressed in modern
English." William C. Anderson, Law Dictionaries, 28 Am. L.
Rev. 531, 532 (1894). latinarius (lat-d-nair-ee-ds), n. [Latin] Hist. An inter
preter of Latin.
Latini Juniani (ld-tI-m joo-nee-ay-m), n. pl. [Latin
"Junian Latins"] Roman law. Informally manumit
ted slaves who acqUired some rights and privileges
as free people, but not Roman citizenship . They
were a special class offreedmen (libertini) who could
become citizens. Ifa Latinus Junianus did not become
a citizen, then upon death that person's status reverted
to slavery, and his or her patron acquired all the dece
dent's property. Also termed libertine lunian Latins.
See LEX TUNIA NORBANA. Cf. INGENUUS; SERV1lS.
"Upon all these persons ... a new and definite status was
conferred; they were henceforth to be known as Latini
juniani, their position being based upon Latinitas, a
status which had been enjoyed by certain latin colonists.
A Latinus junianus had no public rights .... But he had
part ofthe commercium, i.e. he could acquire proprietary
and other rights inter vivos, but not mortis causa. A Latinus
junianus, therefore, could neither take under a will ... nor
could he make one .... But, subject to these disabilities, a
Latinus junianus was a free man, and his children, though
not, like the children of citizens, under his potestas, were
free-born citizens." R.W. Leage, Roman Private Law 68-69
(C.H. Ziegler ed., 2d ed. 1930).
latitat (lat-d-tat), n. [Law Latin "he lurks"] Hist. A writ
issued in a personal action after the sheriff returned
a bill of Middlesex with the notation that the defen
dant could not be found . The writ was called latitat
because ofits fictitious recital that the defendant lurks
about in the county. It was abolished by the Process in
Courts of Law at Westminster Act of 1832 (St. 2, Will.
4, ch. 39). See BILL OF MIDDLESEX; TESTATUM.
"Latitat is a writ by which all men in personal actions are
originally called in the king's bench to answer. And it is
called latitat, because it is supposed by the writ that the
defendant cannot be found in the county of Middlesex, as it
appears by the return of the sheriff of that county, but that
he lurks in another county: and therefore to the sheriff of
that county is this writ directed to apprehend him." Termes
de la Ley 277 (1 st Am. ed. 1812).
latitatio (lat-d-tay-shee-oh), n. [Law Latin] Civil law. A
lurking; a hiding; a concealment, esp. to avoid a trial.
Latium majus (Iay-shee-dm may-jds). [Latin] Roman
law. 1he greater rights conferred on the inhabitants
of Latium and, later, of colonies outside Italy, giving
citizenship to all members of the local curia or town
council and their children. Cf. LATIUM MINUS.
"Under the Principate there is a distinction between Latium
maius and Latium minus. The former referred to the rights
granted to colonies founded as a coloniae Latinae outside
Italy, combined with the concession of Roman citizenship
to a larger group of individuals than Latium minus, in
which only the municipal magistrates and members of the
municipal council ... were rewarded with Roman citizen
Ship." Adolf Berger, Encyclopedic Dictionary ofRoman Law
537-38 (1953).
Latium minus (lay-shee-dm IDI-nds). [Latin] Roman law.
The right ofcitizenship granted to the superior mag
istrates of provincial colonies. -Also termed minus
Latium. Cf. LATIUM MAIUS.
lator (lay-t;}r), n. [Latin "a bearer, proposer"] Civil law. 1.
A bearer; a messenger. 2. A maker or giver oflaws.
962 latori praesentium
lator; praesentium (lay-tor-I or l<l-tor-I pri-sen-shee-"rn).
[Law Latin) Scots law. To the bearer of these presents.
The phrase appeared in reference to written notes or
bonds made payable to an unnamed creditor.
lato sensu (lay-toh sen-s[yJoo). [Latin] Hist. In a wide
sense; in a broad sense.
latro (la-troh), n. [Latin] Roman law. A robber; a
brigand.
latrocination (la-tr<l-s<l-nay-sh;m). [fro Latin latrocinium
"highway robbery") Archaic. The act ofrobbing; a dep
redation; a theft. -Also termed latrociny; latrocinium.
See LARCENY; THEFT.
latrocinium (la-trd-sin-ee-"m), n. [Latin fr. Zatro "a
robber"] Hist. 1. LATROCINATION. 2. Something stolen.
3. The right to judge and execute thieves.
latrociny (la-tr<l-s<l-nee). See LATROCINATION.
laudamentum (law-d<l-men-t<'lm), n. Hist. A jury
award.
laudare (law-dair-ee), vb. [Latin] 1. CivilZaw. To name;
to cite or quote as authority. 2. Hist. To determine or
pass upon (a case, etc.) judicially.
laudatio (law-day-shee-oh), n. [Latin] Roman law.
Court testimony concerning an accused person's good
behavior and integrity oflife . This testimony resem
bles the practice in modern criminal trials of calling
persons to speak favorably about a defendant's charac
ter. PI. laudationes (law-day-shee-oh-neez).
laudator (law-day-t<lr), n. [Latin]l. Roman law. A char
acter witness in a criminal trial. 2. Hist. An arbitrator.
PI. laudatores (law-d<'l-tor-eez).
laudatory words. Patents. In a patent claim, descrip
tive but self-serving and conclusory words about the
invention's quality or features, such as "faster" or "more
effective." Laudatory words are usu. not allowed in
the claims of utility-patent applications, but they are
allowed in plant-patent applications.
laudemium (law-dee-mee-<lm), n. [Law Latin] Hist.
A sum paid to a landowner by a person succeeding
to a particular form of land contract by gift, devise,
exchange, or sale; HERIOT . 1he payment equaled 2%
ofthe purchase money, and was paid to the landowner
for acceptance ofthe successor. -Also termed (in old
English law) acknowledgment money. See EMPHYTEU
SIS.
laudere auctorem (law-deer-ee awk-tor-dm). See NOMI
NATIO AUCTORIS.
laudum (law-d"m), n, [Law Latin] Hist. An arbitrament.
See ARBITRAMENT.
laughe, n. See FRANKPLEDGE.
laughing heir. See HEIR.
launch, n. (I8c) 1. The movement of a vessel from the
land into the water, esp. by sliding along ways from the
stocks on which the vessel was built. 2. A large open
boat used in any service; LIGHTER.
laundering, n. See MONEY-LAUNDERING. laundry list. (1958) Slang. An enumeration of items, as
in a statute or court opinion <Texas's consumer-pro
tection law contains a laundry list of deceptive trade
practices>.
laureate (lor-ee-it), n. (l6c) 1. Hist. An officer ofthe sov
ereign's household, who composed odes annually on
the sovereign's birthday, on the new year, and occa
sionally on the occurrence of a remarkable victory. 2.
A person honored for great achievement in the arts and
sciences, and esp. in poetry.
laus Deo (laws dee-oh or lows day-oh). [Latin] Archaic.
Praise be to God. This was a heading to a bill of
exchange.
law. (bef. 12c) 1. The regime that orders human activi
ties and relations through systematic application ofthe
force ofpolitically organized society, or through social
pressure, backed by force, in such a society; the legal
system <respect and obey the law>. 2. The aggregate
of legislation, judicial precedents, and accepted legal
principles; the body ofauthoritative grounds ofjudicial
and administrative action; esp., the body ofrules, stan
dards, and principles that the courts of a particular
jurisdiction apply in deciding controversies brought
before them <the law ofthe land>. 3. The set ofrules or
principles dealing with a specific area ofa legal system
<copyright law>. 4. The judicial and administrative
process; legal action and proceedings <when settlement
negotiations failed, they submitted their dispute to the
law>. 5. A statute <Congress passed a law>. Abbr.
1. 6. COMMON LAW <law but not equity>. 7. The legal
profession <she spent her entire career in law>.
"Some twenty years ago I pointed out two ideas running
through definitions of law: one an imperative idea, an idea
of a rule laid down by the lawmaking organ of a politically
organized society, deriving its force from the authority
of the sovereign; and the other a rational or ethical idea,
an idea of a rule of right and justice deriving its authority
from its intrinsic reasonableness or conformity to ideals
of right and merely recognized, not made, by the sover
eign." Roscoe Pound, "More About the Nature of law," in
Legal Essays in Tribute to Orrin Kip McMurray at 513, 515
(1935).
"All law is the law of a group of individuals or of groups
made up of individuals. No one can make a law purely
for himself. He may form a resolution, frame an ambition.
or adopt a rule, but these are private prescriptions, not
laws." Tony Honore, Making Law Bind: Essays Legal and
Philosophical 33 (1987).
"It will help to distinguish three senses of the word 'law.'
The first is law as a distinctive social institution; that is the
sense invoked when we ask whether primitive law is really
law. The second is law as a collection of sets of proposi
tions the sets we refer to as antitrust law, the law of
torts, the Statute of Frauds, and so on. The third is law as
a source of rights, duties, and powers, as in the sentence
'The law forbids the murdering heir to inherit. Richard A,
Posner, The Problems ofJurisprudence 220-21 (1990).
adjective law. See ADJECTIVE LAW.
canon law. See CANO~ LAW.
caselaw. See CASELAW.
dvillaw. See CIVIL LAW.
common law. See COMMON LAW.
963
consuetudinary law (kon-swd-t[y]oo-dd-ner-ee). [fro
Latin consuetudo "custom"] Hist. Ancient customary
law that is based on an oral tradition.
conventional law. See CONVENTIONAL LAW.
customary law. See CUSTOMARY LAW.
divine law. See DIVINE LAW.
enacted law. Law that has its source in legislation;
WRITTEN LAW.
federal law. See FEDERAL LAW.
general law. 1. Law that is neither local nor confined
in application to particular persons. _ Even ifthere is
only one person or entity to which a given law applies
when enacted, it is general law ifit purports to apply
to all persons or places ofa specified class throughout
the jurisdiction. -Also termed general statute; law of
a general nature. Cf. special law. [Cases: Statutes (;::)
68.] 2. A statute that relates to a subject of a broad
nature.
imperative law. A rule in the form of a command; a
rule of action imposed on people by some authority
that enforces obedience.
"Strictly speaking, it is not possible to say that impera
tive law is a command in the ordinary sense of the word.
A 'command' in the ordinary meaning of the word is an
expression of a wish by a person or body as to the conduct
of another person, communicated to that other person. But
(1) in the case of the law there is no determinate person
who as a matter of psychological fact commands all the
law. We are all born into a community in which law already
exists, and at no time in our lives do any of us command
the whole law, The most that we do is to play our part in
enforcing or altering particular portions of it. (2) Ignorance
of the law is no excuse; thus a rule of law is binding even
though not communicated to the subject of the law." John
Salmond, Jur |
no excuse; thus a rule of law is binding even
though not communicated to the subject of the law." John
Salmond, Jurisprudence 21 n,(c) (Glanville L. Williams ed.,
10th ed. 1947).
internal law. 1. Law that regulates the domestic affairs
ofa country. Cf. INTERNATIONAL LAW. 2. LOCAL LAW
(3).
local law. See LOCAL LAW.
moral law. See MORAL LAW.
natural law. See NATURAL LAW.
partial law. A statute deSigned (usu. intentionally)
to affect the rights of only one particular person or
only certain classes of people, rather than all people.
[Cases: Statutes (::::>77.]
permanent law. A statute that continues in force for
an indefinite time.
positive law. See POSITIVE LAW.
procedural law. See PROCEDURAL LAW.
prospective law. See prospective statute under STAT
UTE.
special law. A law that pertains to and affects a par
ticular case, person, place, or thing, as opposed to the
general public. -Also termed special act; private law.
Cf. general law (1). [Cases: Statutes (::::J77.]
state law. See STATE LAW. law and literature
sumptuary law. See SUMPTUARY LAW.
tacit law. A law that derives its authority from the
people's consent, without a positive enactment.
unenacted law. Law that does not have its source in
legislation; UNWRITTEN LAW (1).
unwritten law. A rule, custom, or practice that has not
been enacted in the form of a statute or ordinance.
_ The term traditionally includes caselaw. -Also
termed jus non scriptum; jus ex non scripta; lex non
scripta; jus moribus constitutum. See CASELAW. Cf.
written law.
"[Tlhe very words of the court promulgating the opinion
and making the decision do not determine absolutely
the rule of law but. . the rule of law is ascertained by
discovering what general proposition was essential to the
result reached, and by using the words of the opinion as a
mere aid in the ascertaining of that rule, so that, although
opinions are written, the authoritative rules derived from
them are sometimes not written, but are ascertained by the
use of reason, causing case law to be classed as unwritten
law lex non scripta, to use the Latin phrase." William M.
Lile et aI., Brief Making and the Use of Law Books 335 (3d
ed.1914),
"In the common law it is not too much to say that the judges
are always ready to look behind the words of a precedent
to what the previous court was trying to say, or to what
it would have said if it could have foreseen the nature of
the cases that were later to arise, or if its perception of
the relevant factors in the case before it had been more
acute. There is, then, a real sense in which the written
words of the reported decisions are merely the gateway to
something lying behind them that may be called, without
any excess of poetic license, 'unwritten law.'" Lon L. Fuller,
Anatomy of the Law 145 (1968).
written law. Statutory law, together with constitutions
and treaties, as opposed to judge-made law. -Also
termed jus scriptum; lex scripta. Cf. unwritten law.
law agent. Scots law. See SOLICITOR (4).
law and economics. (often cap.) (1979) 1. A diScipline
advocating the economic analysis of the law, whereby
legal rules are subjected to a cost-benefit analysis
to determine whether a change from one legal rule
to another will increase or decrease allocative effi
ciency and social wealth. -Originally developed as
an approach to antitrust policy, law and economics is
today used by its proponents to explain and interpret
a variety oflegal subjects. 2. Ibe field or movement in
which scholars devote themselves to this discipline. 3.
The body ofwork produced by these scholars.
law and literature. (often cap.) (1997) 1. Traditionally,
the study of how lawyers and legal institutions are
depicted in literature; esp., the examination of law
related fiction as sociological evidence of how a given
culture, at a given time, views law, Also termed
law in literature. 2. More modernly, the application of
literary theory to legal texts, focusing esp. on lawyers'
rhetoric, logic, and style, as well as legal syntax and
semantics. -Also termed law as literature. 3. The field
or movement in which scholars devote themselves to
this study or application. 4. lhe body ofwork produced
by these scholars.
964 law arbitrary
law arbitrary. A law not found in the nature of things,
but imposed by the legislature's mere will; a bill not
immutable.
law as literature. See LAW AND LITERATURE (2).
law between states. See INTERNATIONAL LAW.
lawbook. (16c) A book, usu. a technical one, about the
law; esp., a primary legal text such as a statute book or
book that reports caselaw. -Also written law book.
lawbreaker, n. (I5c) A person who violates or has violated
the law.
lawburrows (law-b;;!r-ohz). Scots law. 1. An action requir
ing security for the peaceable behavior of a party. 2.
Security obtained by a party apprehensive of danger
to safeguard the peace.
law clerk. 1. See CLERK (4). 2. See PARALEGAL (2).
law commission. (often cap.) An official or quasi-offi
cial body of people formed to propose legal reforms
intended to improve the administration of justice.
Such a body is often charged with the task ofreviewing
the law with an eye toward systematic development and
reform, esp. through codification.
law court. 1. See COURT (1). 2. See COURT (2). -Also
written law-court.
law court of appeals. Hist. An appellate tribunal,
formerly existing in South Carolina, for hearing appeals
from the courts oflaw.
law-craft, n. (l6c) The practice oflaw.
'This quest for ever broader empirical understanding must,
of course, be kept under reasonable control in practical
law-craft, lest it delay necessary decisions in a continu
ally expanding and pointlessly expensive factfinding
spiral." Bruce A. Ackerman, Reconstructing American Law
30 (1984).
law day. 1. Archaic. The yearly or twice-yearly meeting
of one ofthe early common-law courts. 2. Archaic. The
day appointed for a debtor to discharge a mortgage or
else forfeit the property to the lender. [Cases: Mort
gages (;:::::::'301, 335, 599(1).] 3. (cap.) A day on which
American schools, public assemblies, and courts draw
attention to the importance oflaw in modern society.
Since 1958, the ABA has sponsored Law Day on May
1 ofeach year.
law department. A branch of a corporation, government
agency, university, or the like charged with handling
the entity's legal affairs.
law enforcement. (1895) 1. The detection and punish
ment ofviolations of the law. _ This term is not limited
to the enforcement of criminal laws. For example, the
Freedom of Information Act contains an exemption
from disclosure for information compiled for law
enforcement purposes and furnished in confidence.
That exemption is valid for the enforcement of a variety
of noncriminal laws (such as national-security laws)
as well as criminal laws. See 5 USCA 552(b)(7). 2.
CRIMINAL TlJSTICE (2). 3. Police officers and other
members of the executive branch of government charged with carrying out and enforcing the criminal
law.
Law Enforcement Assistance Administration. A former
federal agency (part ofthe Department ofJustice) that
was responsible for administering law-enforcement
grants under the Omnibus Crime Control and Safe
Streets Act of 1968. -It has been replaced by a variety
offederal agencies, including the National Institute of
Corrections and National Institute ofJustice. -Abbr.
LEAA.
Law Enforcement Information Network. A computer
ized communications system that some states use to
document driver's-license records, automobile regis
trations, wanted-persons' files, and the like. -Abbr.
LEIN.
law-enforcement officer. A person whose duty is to
enforce the laws and preserve the peace. See PEACE
OFFICER; SHERIFF. (Cases: Municipal Corporations
(;::::c 180(1).1
law-enforcement system. See CRIMINAL-JUSTICE
SYSTEM.
law firm. (1852) An association oflawyers who practice
law together, usu. sharing clients and profits, in a
business organized traditionally as a partnership but
often today as either a professional corporation or a
limited-liability company . Many law firms have a
hierarchical structure in which the partners (or share
holders) supervise junior lawyers known as "associ
ates," who are usu. employed on a track to partnership.
[Cases: Attorney and Client (;:::::::030.]
captive law firm. A law firm staffed by employees of
an insurance company. _ These lawyers typically
defend insureds in lawsuits covered under the insur
er's liability policies. The insurer's use ofa captive firm
to defend an insured raises ethical questions about
whether the lawyers will act in the insured's best
interests. Often shortened to captive firm. [Cases:
Attorney and Client C--::>32(4), 32(9).]
Law French. (17c) The corrupted form of the Norman
French language that arose in England in the centuries
after William the Conqueror invaded England in 1066
and that was used for several centuries as the primary
language ofthe English legal system; the Anglo-French
used in medieval England in judicial proceedings,
pleadings, and lawbooks. Also written law French. -
Abbr. L.F. See NORMAN FRENCH.
uTo the linguist, law French is a corrupt dialect by defi
nition. Anglo-French was in steady decline after 1300.
Lawyers such as Fortescue, on the other hand, were
probably serious in maintaining that it was the vernacu
lar of France which was deteriorating by comparison with
the pristine Norman of the English courts. That Fortescue
could make such a claim, while living in France, is in itself
a clear demonstration that by the middle of the fifteenth
century there was a marked difference between the French
of English lawyers and the French of France." J.H. Baker, A
Manual ofLaw F,.encn 11 (1979).
"Law French refers to the AngloNorman patois used in
legal documents and all judicial proceedings from the
12605 to the reign of Edward III (1327-1377), and used with
frequency in legal literature up to the early 18th century.
965
When first introduced into England, this brand of French
was the standard language used in Normandy; by the
BOOs, through linguistic isolation, it became a corrupted
language by French standards, at any rate." Bryan A.
Garner. A Dictionarv of Modern Legal Usage 504-05 (2d
ed. 1995).
"That Law French was barbarous in its decrepitude does
not in the least diminish the value of it to our law when it
was full of vitality. It helped to make English law one of
the four indigenous systems of the civilized world, for it
exactly expressed legal ideas in a technical language which
had no precise equivalent." Percy H. Winfield, The Chief
Sources ofEnglish Legal History 14 (1925).
lawful, adj. (13c) Not contrary to law; permitted by law
<the police officer conducted a lawful search of the
premises>. See LEGAL.
lawful admission. (1899) Immigration. Legal entry into
the country, including under a valid immigrant visa.
_ Lawful admission is one of the requirements for an
immigrant to receive a naturalization order and certifi
cate. 8 USCA 1l0l(a)(20), 1427(a)(l), 1429.
lawful age. (I6c) 1. See age ofcapacity under AGE. 2. See
age ofmajority (1) under AGE.
lawful arrest. See ARREST.
lawful authorities. (16c) Those persons (such as the
police) with the right to exercise public power, to
require obedience to their lawful commands, and to
command or act in the public name.
lawful cause. See good cause under CAUSE (2).
lawful condition. See CONDITION (2).
lawful damages. See DAMAGES.
lawful deed. See good deed under DEED.
lawful dependent. See DEPENDENT.
lawful entry. See ENTRY (1).
lawful fence. (17c) A strong, substantial, and well
suited barrier that is sufficient to prevent animals
from escaping property and to protect the property
from trespassers. -Also termed legal fence; good and
lawful fence. Cf. SPITE FENCE. [Cases: Animals
Fences (;:::> 1, 19.]
lawful goods. (l6c) Property that one may legally hold,
sell, or export; property that is not contraband.
lawful heir. See HEIR (1).
lawful interest. See INTEREST (3).
lawful issue. See ISSCE (3).
lawful man. See LEGALIS HOMO.
lawful money. See MONEY.
lawful process. See legal process under PROCESS.
lawful representative. See REPRESENTATIVE.
Jawgiver. (14c) 1. A legislator, esp. one who promulgates
an entire code of laws. 2. A judge with the power to
interpret law. lawgiving, adj. & n.
'john Chipman Gray in his The Nature and Sources of the
Law (1921) repeats a number of times a quotation from
Bishop Hoadley [1676-1761 l: 'Whoever hath an absolute
authority to interpret any written or spoken laws, it is he
who is truly the Lawgiverto |
: 'Whoever hath an absolute
authority to interpret any written or spoken laws, it is he
who is truly the Lawgiverto all intents and purposes, and Law Lord
not the person who first wrote or spoke them.''' Lon L.
Fuller, Anatomy of the Law 23-24 (1968).
law guardian. See guardian ad litem under GUARDIAN.
law-hand. Hist. An outmoded rococo method of hand
writing once used by scribes in preparing legal docu
ments.
law in action. The law as applied in the day-to-day
workings of the legal system, as opposed to the law
found in books. -Sometimes written law-in-action.
See LEGAL REALISM. Cf. LAW IN BOOKS.
law in books. The legal rules to be found in texts; esp.,
sterile, oft-repeated rules that seem to depart from the
way in which the law actually operates in the day-to
day workings of the legal system. -Sometimes written
law-in-books. Cf. LAW IN ACTION.
law in literature. See LAW AND LITERATURE (1).
law journal. 1. A legal periodical or magazine, esp. one
published by a bar association. Abbr. 1.1. 2. LAW
REVIEW (1).
Law Latin. (16c) A corrupted form of Latin formerly
used in law and legal documents, including judicial
writs, royal charters, and private deeds. _ It primar
ily consists of a mixture of Latin, French, and English
words used in English sentence structures. -Abbr.
L.L.; L. Lat. Also written law Latin.
"LAW LATIN. A technical kind of Latin, in which the pleadings
and proceedings of the English courts were enrolled and
recorded from a very early period to the reign of George
II .... The principal peculiarities of this language consist
first, in its construction, which is adapted so closely to the
English idiom as to answer to it sometimes word for word;
and, secondly, in the use of numerous words 'not allowed
by grammarians nor having any countenance of Latin,' but
framed from the English by merely adding a Latin termina
tion, as murdrumfrom murder ...." 2 Alexander M. Burrill,
A Law Dictionary and Glossary 135 (2d ed. 1867).
"Law Latin, sometimes formerly called 'dog Latin,' is the
bastardized or debased Latin formerly used in law and
legal documents. For the most part, we have escaped its
clutches. In 1730, Parliament abolished Law Latin in legal
proceedings, but two years later found it necessary to
allow Latin phrases that had previously been in common
use, such as fieri facias, habeas corpus, ne exeat, and nisi
prius. As Blackstone would later say, some Latinisms were
'not ... capable of an English dress with any degree of serio
ousness.' 3 William Blackstone. Commentaries 323 (1768)."
Bryan A. Garner, A Dictionarv ofModern Legal Usage 505
(2d ed. 1995).
law list. (ISc) 1. A published compilation of the names
and addresses of practicing lawyers and other infor
mation of interest to the profession, such as legal
organizations, court calendars, rosters of specialists,
court reporters, and the like. 2. A legal directory that
provides biographical information about lawyers, such
as Martindale-Hubbell. -Many states and large cities
have law lists or directories. See MARTINDALE-HUBBELL
LAW DIRECTORY.
Law Lord. (I8c) A member of the appellate committee
ofthe House of Lords, consisting ofthe Lord Chancel
lor, the salaried Lords ofAppeal in Ordinary, and any
peer who holds or has held high judicial office. Also
written law lord.
966 lawmaker
lawmaker. See LEGISLATOR.
lawmaking. See LEGISLATION (1).
law martial. See MARTIAL LAW.
law merchant. A system ofcustomary law that developed
in Europe during the Middle Ages and regulated the
dealings ofmariners and merchants in all the com
mercial countries ofthe world until the 17th century .
Many ofthe law merchant's principles came to be incor
porated into the common law, which in turn formed the
basis ofthe Uniform Commercial Code. Also termed
commercial law; lex mercatoria.
lawnote. See NOTE (2).
law ofa general nature. See general law under LAW.
law ofarms. See ARMS, LAW OF.
law ofcapture. See RULE OF CAPTURE.
law ofCitations. See CITATIONS, LAW OF.
law ofcompetence. A law establishing and defining the
powers ofa government official, including the circum
stances under which the official's pronouncements con
stitute laws. -Also termed power-delegating law. See
jural act under ACT; JURAL AGENT. [Cases: Officers and
Public Employees (;::::; 103.J
law ofdeceit. Hist. The body of 19th-century common
law torts that developed into the modern laws oftrade
mark, securities fraud, deceptive trade practices, and
unfair competition.
law ofevidence. See EVIDENCE (4).
law officer. 1. A police officer, sheriff, or other person
with law-enforcement authority. 2. In most common
law jurisdictions, a senior administrator ofjustice, such
as an attorney general, solicitor general, or other high
level minister or officer ofjustice.
law of Langobardi. See LOMBARD LAW.
law of Lombardy. See LOMBARD LAW.
law ofmarque (mahrk). A rule of reprisal allOWing one
who has been wronged but cannot obtain justice to take
the goods ofthe wrongdoer found within the wronged
person's precinct, in satisfaction ofthe wrong.
law of nations. See INTERNATIONAL LAW.
law of nature. See NATURAL LAW.
law of nature and nations. See INTERNATIONAL LAW.
law of obligations. The category of law dealing with
proprietary rights in personam -namely, the rela
tions between obligor and obligee . It is one of the
three departments into which civil law was tradition
ally divided. See IN PERSONAM. Cf. LAW OF PROPERTY;
LAW OF STATUS.
law of persons. (17c) The law relating to persons; the
law that pertains to the different statuses ofpersons .
This is also commonly known as the jus personarum,
a shortened form ofjus quod ad personas pertinet nhe
law that pertains to persons"). See JUS PERSONARt:M.
law ofproperty. The category oflaw dealing with propri
etary rights in rem, such as personal servitudes, predial servitudes, and rights of real security . It is one ofthe
three departments into which civil law was tradition
ally divided: persons, property, and modes of acquir
ing property (obligations). In modern civil codes that
follow the model ofthe German Civil Code, civil law is
divided into five books: general principles, obligations,
family law, property, and succession. See IN REM. Cf.
LAW OF OBLIGATIONS; LAW OF STATUS.
law of remedy. See REMEDY.
law of shipping. The part of maritime law relating to
the building, equipping, registering, owning, inspect
ing, transporting, and employing of ships, along with
the laws applicable to shipmasters, agents, crews, and
cargoes; the maritime law relating to ships. -Also
termed shipping law. See MARITIME LAW; JONES ACT.
law ofstatus. The category oflaw dealing with personal
or nonproprietary rights, whether in rem or in
personam . It is one ofthe three departments into
which civil law is divided. Cf. LAW OF OBLIGATIONS;
LAW OF PROPERTY.
law ofthe apex. Mining law. The principle that title to a
given tract ofmineral land, with defined mining rights,
goes to the person who locates the surface covering the
outcrop or apex.
law of the case. (18c) 1. The doctrine holding that a
decision rendered in a former appeal ofa case is binding
in a later appeal. lCases: Appeal and Error (;::::; 1097;
Courts (;::::;99, 917.J 2. An earlier decision giving rise to
the application ofthis doctrine. Cf. LAW OF THE TRIAL;
RES JUDICATA; STARE DECISIS.
law of the circuit. (1861) 1. The law as announced and
followed by a U.S. Circuit Court of Appeals. [Cases:
Courts (;::::;96(4).] 2. The rule that one panel of judges
on a U.S. Circuit Court ofAppeals should not overrule
a decision ofanother panel ofjudges on the same court.
[Cases: Courts (;::::.'90(2).] 3, The rule that an opinion
of one U.S. Circuit Court of Appeals is not binding
on another circuit but may be considered persuasive.
[Cases: Courts C=96(5).]
law ofthe flag. Maritime law. The law ofthe nation whose
flag is flown by a particular vessel where it is registered .
That nation's laws govern the ship's internal affairs.
See McCulloch v. Sociedad de Marineros de Honduras,
372 U.S. 10 (1963). [Cases: Shipping (;.-::>2.]
law of the forum. See LEX FORI.
Law of The Hague. The first widely accepted body of
international law ofwar, as approved by conventions in
The in 1899 and 1907. The Law of The Hague
set up procedures for mediation and arbitration of
disputes to avoid war, and attempted to regulate the
type and use ofweapons in warfare. See LIEBER CODE.
law ofthe land. (15c) 1. The law in effect in a country and
applicable to its members, whether the law is statutory,
administrative, or case-made. 2. Due process oflaw. See
DUE PROCESS. Also termed lex terrae; ley de terre.
[Cases: Constitutional Law (;::::;3840-484L]
967 lawsuit
law ofthe partnership. The rule that the parties' agree
ment controls the features ofa partnership.
law of the place. (1947) Under the Federal Tort Claims
Act, the state law applicable to the place where the
injury occurred. Under the Act, the federal gov
ernment waives its sovereign immunity for specified
injuries, including certain wrongful acts or omis
sions of a government employee causing injury that
the United States, if it were a private person, would be
liable for under the law of the state where the incident
occurred. 28 FSCA 1346(b). [Cases: United States
(;:::>78(14).]
law of the road. The collective statutes, rules, and
customs that regulate travel on public highways and
streets.
law ofthe sea. The body of international law governing
how nations use and control the sea and its resources.
Cf. GENERAL MARITIME LAW; MARITIME LAW. [Cases:
International Law (;:::> 7.]
law ofthe staple. Hist. The law administered in the court
of the mayor of the staple; the law merchant. See STAPLE
(1), (2).
law ofthe trial. A legal theory or court ruling that is not
objected to and is used or relied on in a trial <neither
party objected to the court's jury instruction, so it
became the law of the trial>. Cf. LAW OF THE CASE.
[Cases: Criminal Law Trial (;:::>284.)
law of things. '{he law pertaining to things; the law that
is determined by changes in the nature of things . This
is also commonly known as the jus rerum, a shortened
form ofjus quod ad res perrinet ("the law that pertains
to things"). See JUS RERUM.
law practice. (17c) An attorney's professional business,
including the relationships that the attorney has with
clients and the goodwill associated with those rela
tionships. Cf. PRACTICE OF LAW. [Cases: Attorney and
Client (;:::>30.]
law question. See QUESTION OF LAW.
law reform. (1846) The process of, or a movement
dedicated to, streamlining, modernizing, or other
wise improving a body of law generally or the code
governing a particular branch of the law; speci., the
investigation and discussion ofthe law on a topic (e.g.,
bankruptcy), usu. by a commission or expert commit
tee, with the goal offormulating proposals for change
to improve the operation of the law. Also termed
science oflegislation; censorial jurisprudence.
law report. See REPORT (3).
law reporter. See REPORT (3).
law review. (1845) 1. A journal containing scholarly
articles, essays, and other commentary on legal topics
by professors, judges, law students, and practitioners.
Law reviews are usu. published at law schools and
edited by law students <law reviews are often grossly
overburdened with substantive footnotes>. 2. The law
student staff and editorial board ofsuch a journal <she made law review>. Abbr. 1. Rev. Also termed law
journal. See LAW JOURNAL.
law Salique (sa-leek), See SALIC LAW.
law school. (17c) An institution for formal legal edu
cation and training. Graduates who complete the
standard program, usu. three years in length, receive a
Juris Doctor (or, formerly, a Bachelor of Laws).
accredited law school. (1905) A law school approved
by the state and the Association of American Law
Schools, or by the state and the American Bar Associ
ation. In all states except California, only graduates
of an accredited law school may take the bar examina
tion. [Cases: Colleges and Universities (;:::> 1.)
Law School Admissions Test. A standardized examina
tion purporting to measure the likelihood of success
in law school. Most American law schools use the
results ofthis examination in admissions decisions.
Abbr. LSAT.
Law Society. A professional organization in England,
chartered in 1845, governing the education, practice,
and conduct of articled clerks and solicitors . A clerk
or solicitor |
45, governing the education, practice,
and conduct of articled clerks and solicitors . A clerk
or solicitor must be enrolled with the Law Society to be
admitted to the legal profession.
Law Society of Scotland. A professional organization
established by statute in 1949, governing the admission,
conduct, and practice of solicitors enrolled to practice
in Scotland.
Laws of Amalfi (ah-mahl-fee). See AMALPHITAN CODE.
laws of Oleron (oh-la-ron or aw-Iay-ron). The oldest col
lection ofmaritime laws, thought to be a code existing
at Oleron (an island off the coast of France) during
the 12th century . It was introduced into England,
with certain additions, in the reign ofRichard 1(1189
1199).
laws ofthe several states. State statutes and state-court
decisions on questions ofgeneral law.
laws of Visby (vis-bee). A code of maritime customs
and decisions adopted on the island of Gothland (in
the Baltic Sea), where Visby was the principal port.
Most scholars believe that this code postdates the
laws of Oleron. The code was influential throughout
northern Europe. In recognition of the ancient code,
the Visby Protocol to amend the Hague Rules was
Signed in Visby. The Hague-Visby Rules govern most of
the world's liner trade. Also spelled laws ofWisby.
Also termed Gothland sea laws.
laws ofwar. Int'llaw. The rules and principles agreed on
by most nations for regulating matters inherent in or
incident to the conduct of a public war, such as the rela
tions of neutrals and belligerents, blockades, captures,
prizes, truces and armistices, capitulations, prisoners,
and declarations of war and peace. Cf. GENEVA CON
VENTIONS OF 1949.
laws ofWisby. See LAWS OF VISBY.
law spiritual. See ECCLESIASTICAL LAW.
lawsuit, n. See SUIT.
lawsuit, vb. Archaic. To proceed against (an adversary)
in a lawsuit; to sue.
law-talk, n. 1. LEGALESE. 2. Discussion that is heavilv
laced with lawyers' concerns and legal references. '
law-worthy, adj. Hist. Entitled to or deserving the benefit
and protection of the law. Also termed law-worth.
See L1BERAM LEGEM AMITTERE; LEGALIS HOMO; LIBERA
LEX.
law writer. (1852) A person who writes on legal subjects,
usu. from a technical, non popular point ofview.
lawyer, n. (14c) One who is licensed to practice law.
Cf. ATTORNEY. [Cases: Attorney and Client G=9.]
lawyerly, lawyerlike, adj. lawyerdom, n.
certified military lawyer. A person qualified to act as
counsel in a general court-martial. _ To be qualified,
the person must be (1) a judge advocate of the Army,
Navy, Air Force, or Marine Corps, or a law specialist
ofthe Coast Guard, (2) a graduate of an accredited
law school, or a member ofa federal-court bar or the
bar ofthe highest court of a state, and (3) certified
as competent to perform such duties by the Judge
Advocate General of the armed force that the person
is a member of. [Cases: Military Justice (;::> 1240.]
criminal lawyer. (18c) A lawyer whose primary work is
to represent criminal defendants. -This term is rarely
if ever applied to prosecutors despite their integral
involvement in the criminal-justice system.
guardhouse lawyer. See JAILHOUSE LAWYER.
headnote lawyer. Slang. A lawyer who relies on the
headnotes ofjudicial opinions rather than taking the
time to read the opinions themselves.
jailhouse lawyer. See JAILHOUSE LAWYER.
public-interest lawyer. An attorney whose practice is
devoted to advocacy on behalf ofa public institution
or nongovernmental organization, or to adviSing and
representing indigent clients and others who have
limited access to legal aid. -Public-interest lawyers
often practice in fields such as civil rights and immi
gration law.
transactional lawyer. (1990) A lawyer who works pri
marily on transactions such as licenSing agreements,
mergers, acquisitions, joint ventures, and the like.
lawyer, vb. (l8c) 1. To practice as a lawyer <associates
often spend their days and nights lawyering, with little
time for recreation>. 2. To supply with lawyers <the
large law-school class will certainly help lawyer the
state>. -lawyering, n.
lawyer-client privilege. See attorney-client privilege
under PRIVILEGE (3).
lawyer-referral and information service. See LAWYER
REFERRAL SERVICE.
lawyer-referral service. A program, usu. offered by a bar
association, that helps nonindigent clients clarify their
legal problems and provides either contact informa
tion for lawyers who practice in the appropriate field or
information about government agencies or consumer organizations that may be able to provide services.
Also termed lawyer referral and information service.
lawyer-witness rule. (1982) The principle that an attorney
who will likely be called as a fact witness at trial may
not participate as an advocate in the case, unless the
testimony will be about an uncontested matter or the
amount of attorney's fees in the case, or if disqualify
ing the attorney would create a substantial hardship for
the client. -The rule permits an attorney actively par
ticipating in the case to be a witness on merely formal
matters but discourages testimony on other matters on
behalfofa client. Model Rules ofProfessional Conduct
Rule 3.7 (1983). Also termed advocate-witness rule;
attorney-witness rule. [Cases: Attorney and Client
22; Witnesses (;:::::,67.]
lay, adj. (14c) 1. Not ecclesiastical; not ofthe clergy. 2.
Not expert, esp. with reference to law or medicine; non
professionaL
lay, n. Maritime law. A share ofthe profits ofa fishing or
whaling trip, akin to wages, allotted to the officers and
seamen. (Cases: Seamen C-'='28.J
lay, vb. (14c) To allege or assert.
'The Laying of Damages.-" At common law the declaration
must 'lay damages.'" Edwin E. Bryant, The Law of Pleading
Under the Codes of Civil Procedure 209 (2d ed. 1899).
layaway. An agreement between a retail seller and a
consumer to hold goods for future sale. -The seller sets
the goods aside and agrees to sell them to the consumer
at an agreed price in the future. The consumer deposits
with the seller some portion of the price ofthe goods,
and may agree to other conditions with the seller, such
as progress payments. The consumer receives the goods
once the full purchase price has been paid.
lay corporation. See CORPORATION.
lay damages, vb. To allege damages, esp. in the com
plaint. See AD DAMNUM CLAUSE.
layday, Maritime law. A day allowed by a voyage char
terparty for the charterer to load or unload cargo. -If
more time is used, the vessel's owner is entitled to com
pensation for the delay, usu. in the form ofdemurrage.
Ifless time is used, the owner may pay dispatch. Also
written lay day. See DEMURRAGE; DISPATCH; LAYTIME.
Cf. day ofdemurrage under DAY. [Cases: Shipping
45, 47.J
lay fee. See FEE (2).
lay impropriator (im-proh-pree-ay-t;lr). Eccles. law. A
layperson holding a benefice or other spiritual impro
priation.
laying a foundation. Evidence. Introducing evidence of
certain facts needed to render later evidence relevant,
material, or competent. _ For example, propounding a
hypothetical question to an expert is necessary before
the expert may render an opinion. (Cases: Criminal
Law G=404.1O, 444, 485; Evidence ~-;,117,366-381.]
laying ofthe venue. (lSc) A statement in a complaint
naming the district or county in which the plaintiff
969
proposes that any trial ofthe matter should occur. See
VENU E. [Cases; Pleading (;::;45.]
lay investiture. Eccles. law. The ceremony by which a
layperson places a bishop in possession oflands, money
revenues, and other diocesan temporalities.
lay judge. See JUDGE.
layman. (lSe) 1. A person who is not a member of the
clergy. [Cases: Religious Societies 2. A person
who is not a member of a profession or an expert on a
particular subject. -Also termed layperson. [Cases;
Criminal Law (;::;449.1.]
layoff. (1868) The termination of employment at the
employer's instigation; esp., the termination -either
temporary or permanent -ofmany employees in a
short time. -Also termed reduction in force. -lay
off, vb.
mass layoff. Labor law. Under the Worker Adjustment
and Retraining Notification Act, a reduction in force
that results in the loss of work at a single site, of 30
days or more, for at least 500 full-time employees,
or 50 or more full-time employees if they make up
at least 33%of the employees at that site. 29 USCA
2101(a)(3). See WORKER ADJUSTMENT AND RETRAIN
ING NOTIFICATION ACT. [Cases: Labor and Employ
ment C-='3220.J
layoff bet. See BET.
layoff bettor. A bookmaker who accepts layoffbets from
other bookmakers. See layoff bet under BET. [Cases;
Gaming (;::;62, 73.]
lay on the table. Parliamentary law. 1. To postpone
the consideration of (a matter before a deliberative
assembly); TABLE. -Some parliamentary writers prefer
the form "to lay on the table" and disapprove of the
form "to table." 2. British English. To schedule for con
sideration.
lay opinion testimony. See TESTIMONY.
layperson. 1. See LAYMAN. 2. Hist. See JUROR.
lay system. Maritime law. A system in which a fishing
vessel's catch is sold by contract or at auction, and
after costs are paid and the shipowner is compensated,
the net profits are divided among the crew members
according to agreed-on percentages.
lay tenure. See TENURE.
lay time. Maritime law. Time allowed by a voyage char
terparty for the charterer to load or unload cargo. -If
more time is used, the vessel's owner is entitled to com
pensation for the delay, usu. in the form ofdemurrage.
Ifless time is used, the owner may pay dispatch. -See
DEMURRAGE; DISPATCH; LAYDAY. [Cases: Shipping
47, 181.]
lay witness. See WITNESS.
LBO. See leveraged buyout under BUYOUT.
LC. abbr. 1. LETTER OF CREDIT. 2. LETTER OF
CREDENCE. -Also written LIe. leading question
L-Claim proceeding. (1997) A hearing under the Rack
eteer Influenced and Corrupt Organizations Act,
intended to ensure that property ordered to be for
feited belongs solely to the defendant. _ A petition for
an L-Claim proceeding is filed by a third party who
claims an interest in the property. The purpose is not
to divide the assets among competing claimants, and
general creditors of the defendant are not be allowed
to maintain an L-Claim petition. The name refers to its
legal basis in subsection Iof RICO's penalty provision.
18 USCA 1963(1)(2). [Cases; Forfeitures (;::;5.]
LEAA. abbr. LAW ENFORCEMENT ASSISTANCE ADMIN
ISTRATION.
leaching (leech-ing). (18c) The process by which moving
fluid separates the soluble components of a material.
Under CERCLA, leaching is considered a release of
contaminants. The term is sometimes used to describe
the migration of contaminating materials, by rain or
groundwater, from a fixed source, such as a landfill. 42
USCA 9601(22).
lead counsel. See COUNSEL.
leader. See LOSS LEADER.
leading case. (17c) 1. A judicial decision that first defini
tively settled an important legal rule or principle and
that has since been often and consistentlv followed.
An example is Miranda v. Arizona, 384U.S. 436, 86
S.Ct. 1602 (1966) (creating the exclUSionary rule for
evidence improperly obtained from a suspect being
interrogated while in police custody). Cf. LANDMARK
DECISION. 2. An important, often the most important,
judicial precedent on a particular legal issue. 3. Loosely,
a reported case that is cited as the dispositive authority
on an issue being litigated. -Also termed (in sense 3)
ruling case.
leading counsel. See lead counsel under COUNSEL.
leading economic indicator. See ECONOMIC INDICA
TOR.
leading indicator. See INDICATOR.
leading-object rule. See MAIN-PURPOSE RULE.
leading ofa use. Hist. In a deed, the specification, before
the levy ofa fine ofland, ofthe person to whose use the
fine will inure. -If the deed is executed after the fine,
it "declares" the use.
"As if A., tenant in tail, with reversion to himself in fee,
would settle his estate on B. for life, remainder to C. in
tail, remainder to D. in fee .... He therefore usually, after
making the settlement proposed, covenants to levy a
fine ... and directs that the same shall enure to the uses
in such settlement mentioned. This is now a deed to lead
the uses of the fine or recovery, and the fine when levied,
or recovery when suffered, shall enure to the uses so spe |
the uses of the fine or recovery, and the fine when levied,
or recovery when suffered, shall enure to the uses so speci
fied, and no other." 2 William Blackstone, Commentaries
on the Laws of England 363 (1766).
leading question. (1824) A question that suggests the
answer to the person being interrogated; esp., a question
that may be answered by a mere "yes" or "no." -Leading
questions are generally allowed only in cross-examina
tion. Also termed categorical question; suggestive
970 lead-lag study
question; suggestive interrogation. [Cases: Witnesses
<::=239.]
lead-lag study. A survey used to determine the amount
ofworking capital that a utility company must reserve
and include in its rate base, by comparing the time the
company has to pay its bills and the time taken by its
customers to pay for service. -The term comes from
the phrases "lead time" and "lag time." Lead time is
the average number of days between the company's
receipt and payment of invoices it receives. Lag time
is the average number of days between the company's
billing of its customers and its receipt ofpayment. By
analyzing the difference in timing between inward cash
flow and outward cash flow, the company can calculate
the amount of necessary reserves. [Cases: Electricity
C'-:::' 1l.3(2), 11.3(4).J
leads doctrine. Tax. In a tax-evasion case, the rule that
the government must investigate all the taxpayer's leads
that are reasonably accessible and that, if true, would
establish the taxpayer's innocence, or the government
risks having the trial judge presume that any leads not
investigated are true and exonerating. [Cases: Internal
Revenue
league. (I5c) 1. A covenant made by nations, groups,
or individuals for promoting common interests or
ensuring mutual protection. 2. An alliance or asso
ciation of nations, groups, or individuals formed by
such a covenant. 3. A unit of distance, usu. measuring
about three miles (chiefly, nautical). [Cases: Weights
and Measures
marine league. A geographical measure of distance
equal to one-twentieth part of a degree oflatitude, or
three nautical miles. [Cases: Weights and Measures
<::=3.]
League ofNations. An organization of nations formed in
1919 to promote international cooperation and peace. _
President Woodrow Wilson endorsed the League in an
address to Congress, but the United States never joined.
The League dissolved in 1946 and turned its assets over
to the United Nations.
leakage. (ISc) 1. The waste of a liquid caused by its
leaking from a storage container. 2. An allowance
against duties granted by customs to an importer of
liquids for losses sustained by this waste. 3. Intellec
tual property. Loss in value of a piece of intellectual
property because ofunauthorized copying. -The types
of intellectual property most susceptible to leakage
are recordable media such as compact discs and vid
eotapes. [Cases: Copyrights and Intellectual Property
<:;=>87(1).]
leal (lee!), adj. [Law French] Hist. Loyal.
lean, vb. (bef. 12c) 1. To incline or tend in opinion or pref
erence. - A court is sometimes said to "lean toward" or
"lean against" an advocate's position, meaning that the
court regards that position favorably or unfavorably. 2.
To yield; to submit.
leapfrog development. (1976) An improvement ofland
that requires the extension ofpublic facilities from their current stopping point, through undeveloped land that
may be scheduled for future development, to the site of
the improvement.
leap year. See YEAR.
learned (l<>r-nid), adj. (l4c) 1. Having a great deal of
learning; erudite. - A lawyer might refer to an adver
sary as a "learned colleague" or "learned opponent"
a comment that, depending on the situation and tone
ofvoice, may be either a genuine compliment or a sar
castic slight. 2. Well-versed in the law and its history.
-Statutes sometimes require that judges be "learned
in the law," a phrase commonly construed as meaning
that they must have earned a law degree and been
admitted to the bar.
learned intermediary. See informed intermediary under
INTERMEDIARY.
learned-intermediary doctrine. The principle that a pre
scription-drug manufacturer fulfills its duty to warn
of a drug's potentially harmful effects by informing
the prescribing phYSician, rather than the end-user, of
those effects. [Cases: Products Liability<::= 136.]
learned-treatise rule. (1946) Evidence. An exception
to the hearsay rule, by which a published text may
be established as authoritative, either by expert testi
mony or by judicial notice. -Under the Federal Rules
of Evidence, a statement in a published treatise, peri
odical, or pamphlet on sciences or arts (such as history
or medicine) can be established as authoritative and
thereby admitted into evidence for the purpose of
examining or cross-examining an expert witness
by expert testimony or by the court's taking judicial
notice of the authoritative nature or reliability of the
text. If the statement is admitted into evidence, it may
be read into the trial record, but it may not be received
as an exhibit. Fed. R. Evid. 803(18). [Cases: Criminal
Law Evidence <::=363.]
learning, n. 1. Hist. Legal doctrine. 2. The act ofacquir
ing knowledge.
lease, n. (l4c) 1. A contract by which a rightful possessor
of real property conveys the right to use and occupy
the property in exchange for consideration, usu. rent.
-The lease term can be for life, for a fixed period, or
for a period terminable at will. [Cases: Landlord and
Tenant (;:::>20.] 2. Such a conveyance plus all covenants
attached to it. 3. The written instrument memorial
izing such a conveyance and its covenants. Also
termed lease agreement; lease contract. 4. The piece of
real property so conveyed. 5. A contract by which the
rightful possessor of personal property conveys the
right to use that property in exchange for consider
ation. [Cases: Bailment <.r'=> 1.]
assignable lease. (1915) A lease that the lessee can
transfer to a successor. See SUBLEASE. [Cases:
Landlord and Tenant (::::-74.J
building lease. A long-term lease ofland that includes a
covenant to erect or alter a building or other improve
ment. Cf. ground lease. [Cases: Estates in Property
13.]
971
capital lease. See LEASE-PURCHASE AGREEMENT.
commercial lease. (1909) A lease for business purposes.
[Cases: Landlord and Tenant C=20.]
community lease. (1919) A lease in which a number of
lessors owning interests in separate tracts execute a
lease in favor ofa single lessee.
concurrent lease. (1946) A lease that begins before a
previous lease ends, entitling the new lessee to be paid
all rents that accrue on the previous lease after the
new lease begins, and to remedies against the holding
tenant.
"A landlord who has granted a lease may nevertheless
grant another lease of the same land for all or some of
the period of the first lease. The second lease does not
deprive the lessee under the first lease of the right to pos
session of the property, but is, in reality, a lease of the
reversion. Because the two leases operate concurrently
during at least some part of their respective durations,
they are known as 'concurrent leases.'" Peter Butt, Land
Law 233 (2d ed. 1988).
consumer lease. (1972) 1. A lease ofgoods by a person
who is in the business of selling or leasing a product
primarily for the lessee's personal or household use.
UCC 2A-103(l)(e). [Cases: Bailment (::::02.] 2. A resi
dential rather than commercial -lease.
derivative lease. See SUBLEASE.
durable lease. (1816) A lease that reserves a rent payable
annually, usu. with a right of reentry for nonpay
ment.
edge lease. Oil & gas. A lease located on the edge of
a field.
finance lease. (1966) A fixed-term lease used by a
business to finance capital equipment. The lessor's
service is usu. limited to financing the asset, and
the lessee pays maintenance costs and taxes and has
the option of purchasing the asset at lease-end for
a nominal price. Finance leases strongly resemble
security agreements and are written almost exclu
sively by financial institutions as a way to help a com
mercial customer obtain an expensive capital item that
the customer might not otherwise be able to afford.
UCC 2A-103(1)(g). Also termed full payout lease;
tripartite lease. [Cases: Bailment C:::;)2.j
"By carving out the 'finance lease' for special treatment,
the drafters of Article 2A have recognized a distinct species
of lease that is written almost exclusively by financial insti
tutions and although treated as a true lease does not
normally carry with it certain of the responsibilities that
the typical lessor bears under Article 2A." 2JamesJ. White
& Robert S. Summers, Uniform Commercial Code B-3,
at 4 (4th ed. 1995).
'A finance lease is the product of a three-party transac
tion. The supplier manufactures or supplies the goods
pursuant to the lessee's specification, perhaps even
pursuant to a purchase order, sales agreement, or lease
agreement between the supplier and the lessee. After the
prospective finance lease is negotiated, a purchase order,
sales agreement, or lease agreement is entered into by
the lessor (as buyer or prime lessee) or an existing order,
agreement, or lease is assigned by the lessee to the lessor,
and the lessor and the lessee then enter into a lease or
sublease of the goods. Due to the limited function usually
performed by the lessor, the lessee looks almost entirely lease
to the supplier for representations, covenants, and war
ranties. If a manufacturer's warranty carries through, the
lessee may also look to that. Yet, this definition does not
restrict the lessor's function solely to the supply of funds; if
the lessor undertakes or performs other functions, express
warranties, covenants, and the common law will protect
the lessee." UCC 2A-102 cmt. at 14-15 (Proposed Final
Draft, 30 Apr, 1999).
full-service lease. (1967) A lease in which the lessor
agrees to pay all maintenance expenses, insurance
premiums, and property taxes. [Cases: Landlord and
Tenant 148(1), 156.]
graduated lease. (1930) A lease in which rent varies
depending on future contingencies, such as operating
expenses or gross income.
gross lease. (1939) A lease in which the lessee pays a flat
amount for rent, out of which the lessor pays all the
expenses (such as fuel, water, and electricity).
ground lease. (1840) A long-term (usu. 99-year) lease
ofland only. Such a lease typically involves com
mercial property, and any improvements built by the
lessee usu. revert to the lessor. -Also termed ground
rent lease; land lease. [Cases: Estates in Property (::::0
13.]
headlease. See HEADLEASE.
index lease. A lease that provides for increases in rent
according to the increases in the consumer price
index. [Cases: Landlord and Tenant ~":)200.7.1
land lease. See ground lease.
leveraged lease. (1972) A lease that is collateral for the
loan through which the lessor acquired the leased
asset, and that provides the lender's only recourse for
nonpayment of the debt; a lease in which a creditor
provides nonrecourse financing to the lessor (who has
substantial leverage in the property) and in which the
lessor's net investment in the lease, apart from nonre
course financing, declines during the early years and
increases in later years. -Also termed third-party
equity lease; tax lease.
master lease. (1935) A contract that establishes a lease
hold's basic terms and conditions applicable to all
related contracts for rental properties.
mineral lease. A lease in which the lessee has the right
to explore for and extract oil, gas, or other minerals.
The rent usu. is based on the amount or value of
the minerals extracted. [Cases: Mines and Minerals
C=~56-81.]
mining lease. A lease of a mine or mining claim, in
which the lessee has the right to work the mine or
claim, usu. with conditions on the amount and type
ofwork to be done. -The lessor is compensated with
either fixed rent or royalties based on the amount of
ore mined. [Cases: Mines and Minerals
month-to-month lease. (1914) A tenancy with no
written contract. Rentis paid monthly, and usu. one
month's notice by the landlord or tenant is required
to terminate the tenancy. See periodic tenancy under
TENANCY. [Cases: Landlord and Tenant G-::::; 113.]
net lease. A lease in which the lessee pays rent plus
property expenses (such as taxes and insurance).
net-net-net lease. A lease in which the lessee pays all
the expenses, including mortgage interest and amor
tization, leaving the lessor with an amount free ofall
claims. -Also termed triple net lease.
oil-and-gas lease. (1892) A lease granting the right to
extract oil and gas from a specified piece of land.
Al |
ase. (1892) A lease granting the right to
extract oil and gas from a specified piece of land.
Although called a "lease," this interest is typically
considered a determinable fee in the minerals rather
than a grant ofpossession for a term ofyears. [Cases:
Mines and Minerals
operating lease. A lease of property (esp. equipment)
for a term that is shorter than the property's useful
life. Under an operating lease, the lessor is typi
cally responsible for paying taxes and other expenses
on the property. Cf. capital lease; LEASE-PURCHASE
AGREEMENT.
"or" lease. Oil & gas. A mineral lease with a drill
ing-delay rental clause structured so that the lessee
promises to start drilling operations or to pay delay
rentals from time to time during the primary term.
Ifthe lessee fails to do one or the other, the lease does
not automatically terminate, but the lessee is liable for
the delay-rental amount.
parol lease (pd-rohl or par-d\). A lease based on an oral
agreement; an unwritten lease. [Cases: Landlord and
Tenant C)23.]
percentage lease. A lease in which the rent is based on
a percentage of gross (or net) sales or profits, typi
cally with a set minimum rent. Landlord and
Tenant (;=:;c200.I.]
perpetual lease. 1. An ongoing lease not limited in
duration. 2. A grant oflands in fee with a reserva
tion ofa rent in fee; a fee farm. [Cases: Landlord and
Tenant C=~ 87.]
perpetually renewable lease. Hist. A lease that a tenant
may renew for another period as often as it expires,
usu. by making a payment upon exercising the right.
In 1922, this type oflease was effectively abolished in
England by the Law of Property Act, which provided
for the conversion ofexisting and future perpetually
renewable leases to term-of-years leases, and set the
maximum term at 2000 years.
proprietary lease. A lease between a cooperative apart
ment association and a tenant.
reversionary lease. A lease that will take effect when a
prior lease terminates.
sandwich lease. (1976) A lease in which the lessee sub
leases the property to a third party, esp. for more rent
than under the original lease.
short lease. (l7c) A lease of brief duration, often less
than six months.
sublease. See SUBLEASE.
synthetic lease. A method for financing the purchase
of real estate, whereby the lender creates a special-purpose entity that buys the property and then leases
it to the ultimate user (usu. a corporation) . A syn
thetic lease is treated as a loan for tax purposes and
as an operating lease for accounting purposes, so that
the "lessee" can deduct the property's depreciation
and the loan's interest yet keep both the asset and the
debt off its balance sheet.
tax lease. 1. The instrument or estate en to the pur
chaser of land at a tax sale when e law does not
permit the sale ofan estate in fee for nonpayment of
taxes but instead directs the sale ofan estate for years.
2. See leveraged lease.
third-party equity lease. See leveraged lease.
timber lease. (1853) A real-property lease that contem
plates that the lessee will cut timber on the leased
premises. [Cases: Logs and Logging
top lease. Oil & gas. A lease granted on property
already subject to an oil-and-gas lease . Generally,
any rights granted by a top lease grants are valid only
if the existing lease ends. [Cases: Mines and Minerals
(;=:;c56,73.]
tripartite lease. See finance lease.
triple net lease. See net-net-net lease.
"unless" lease. Oil & gas. An oil-and-gas lease with
a drilling-delay rental clause structured as a special
limitation to the primary term . Unless delay rentals
are paid or drilling operations are started from time
to time as specified, an "unless" lease automatically
terminates, and the lessee has no liability for its
failure to perform. [Cases: Mines and Minerals
78.1(3,9).]
lease, vb. (16c) l. To grant the possession and use of(land,
buildings, rooms, movable property, etc.) to another in
return for rent or other consideration <the city leased
the stadium to the football team>. [Cases: Bailment
1; Landlord and Tenant (;=:;c20.] 2. To take a lease of;
to hold by a lease <Carol leased the townhouse from
her uncle>.
lease agreement. See LEASE (3).
lease and release. Hist. A method of transferring seisin
without livery, whereby the owner and the transferee
would enter into a lease for a term of years, to take
effect only when the transferee entered the property,
whereupon the owner would release all interest in
the property to the transferee by written instrument.
Once the transferee owned both the term and the
freehold interest, the two interests would merge to form
one estate in fee simple. This lease-and-release proce
dure was fully acceptable to the courts, on the theory
that livery ofseisin to one already occupying the land
was unnecessary.
leaseback, n. (1947) The sale of property on the under
standing, or with the express option, that the seller may
lease the property from the buyer immediately upon
the sale. -Also termed sale and leaseback; sale-lease
back. [Cases: Landlord and Tenant
lease contract. See LEASE (3).
973
lease for life. Hist. A lease of land for the duration of a
specified number oflives instead of for a specified term
of years . Unlike a tenant for a term ofyears, a lessee
for life could recover the land if dispossessed.
'The rent payable was usually fairly small, but a fine was
paid when the lease was granted; a further fine was payable
when, on the termination of the lives, the tenant exercised
the right the lease gave him to replace them and so extend
the lease. If the lessor was a corporation such as a mon
astery or college, the fines were treated as income by the
then members of the corporation, to the disadvantage of
their successors. Leases for life finally lost their popularity
when legislation in the first half of the nineteenth century
compelled corporations to add such fines to their capital:'
Robert E. Megarry & M.P. Thompson, A Manual of the Law
ofReal Property 306 (6th ed. 1993l.
lease for years. See tenancy for a term under TENANCY.
leasehold, n. (I8c) A tenant's possessory estate in land or
premises, the four types being the tenancy tor years, the
periodic tenancy, the tenancy at will, and the tenancy
at sufferance . Although a leasehold has some of the
characteristics ofreal property, it has historically been
classified as a chattel real. Also termed leasehold
estate; leasehold interest. See TENANCY. Cf. FREEHOLD.
[Cases: Landlord and Tenant ~70, 113, 117.J
leaseholder royalty. See landowner's royalty under
ROYALTY (2).
leasehold improvements. (1845) Beneficial changes to
leased property (such as a parking lot or driveway)
made by or for the benefit ofthe lessee . The phrase is
used in a condemnation proceeding to determine the
share of compensation to be allocated to the lessee.
leasehold interest. (18c) 1. LEASEHOLD; esp., for purposes
of eminent domain, the lessee's interest in the lease
itself, measured by the difference between the total
remaining rent and the rent the lessee would pay for
similar space for the same period. [Cases: Eminent
Domain ~147.J 2. A lessor's or lessee's interest under
a lease contract. UCC 2A-103. [Cases: Bailment
7.3. WORKING INTEREST. [Cases: Landlord and Tenant
~20.J
leasehold mortgage. See MORTGAGE.
leasehold-mortgage bond. See BOND (3).
leasehold royalty. See landowner's royalty under
ROYALTY (2).
leasehold value. The value ofa leasehold interest. This
term usu. applies to a long-term lease when the rent
paid under the lease is lower than current market rates.
Some states permit the lessee to claim the leasehold
interest from the landlord in a condemnation pro
ceeding, unless the lease prohibits such a claim. Other
states prohibit these claims by statute. See LEASEHOLD
INTEREST; :O<O-BONUS CLAUSE.
lease insurance. See INSURANCE.
lease-lend. See LEND-LEASE.
lease option. See OPTION.
lease-purchase agreement. (1939) A rent-to-own
purchase plan under which the buyer takes posses
sion of the goods with the first payment and takes leave
ownership with the final payment; a lease of property
(esp. equipment) by which ownership of the property is
transferred to the lessee at the end of the lease term .
Such a lease is usu. treated as an installment sale. Under
a capital lease, the lessee is responsible for paying taxes
and other expenses on the property. -Also termed
lease-to-purchase agreement; hire-purchase agreement;
capital lease. Cf. operating lease under LEASE. [Cases:
Bailment C:>22; Sales (;=5.J
lease with an option to purchase. See lease option under
OPTION.
leasing-making. Hist. Scots law. Oral sedition.
least-intrusive-means doctrine. (1978) A doctrine
requiring the government to exhaust all other investi
gatory means before seeking sensitive testimony, as by
compelling an attorney to testify before a grand jury
on matters that may be protected by the attorney-client
privilege.
least-intrusive-remedy doctrine. (1989) The rule that
a legal remedy should provide the damaged party
with appropriate relief, without unduly penalizing
the opposing party or the jurisdiction's legal system,
as by striking only the unconstitutional portion of a
challenged statute while leaving the rest intact. [Cases:
Statutes (::~'64(l).J
least-restrictive educational environment. See LEAST
RESTRICTIVE ENVIRONMENT.
least-restrictive environment. Under the Individuals
with Disabilities Education Act, the school setting that,
to the greatest extent appropriate, educates a disabled
child together with children who are not disabled. 20
USCA 1412(5). -Also termed least-restrictive-edu
cational environment. Cf. MAINSTREAMING. [Cases:
Schools ~148(2).]
least-restrictive-means test. (1972) The rule that a law
or governmental regulation should be crafted in a way
that will protect individual civil liberties as much as
possible and should be only as restrictive as necessary
to accomplish a legitimate governmental purpose.
leaute (low-tay), n. [Law French "legality"] Hist. Legality;
the condition of a lawful man (legalis homo). See
LEGALIS HOMO.
! leave, n. (bef. 12c) 1. Departure; the act of going away
<took his leave>. 2. Extended absence for which one has
authorization; esp., a voluntary vacation from military
duties with the chance to visit home; furlough <on a
I three-month leave from the Army>. 3. Permission <by
leave of court>.
leave, vb. (bef. 12c) 1. To give by will; to bequeath or
devise <she left her ranch to her stepson> . This usage
has historically been considered loose by the courts,
and it is not always given testamentary effect. 2. To be
survived by <he left no brothers or sisters>. 3. To depart;
voluntarily go away; quit (a place). 4. To depart willfully
with the intent not to return <Nelson left Texas and
became a resident of Massachusetts>. 5. To deliver (a
: summons, money, an article, etc.) by dropping off at a
certain place, esp. to await the return ofsomeone; esp.,
to post (a copy ofa writ, etc.).
leave and license. In an action for trespass to land, the
defense that the plaintiff consented to the defendant's
presence.
leave no issue, vb. (16c) To die without any surviving
child or other descendant. _ The spouse of a deceased
child is usu. not issue. See FAILURE OF ISSUE. [Cases:
Wills
leave of absence. (18c) A worker's temporary absence
from employment or duty with the intention to return.
-Salary level and seniority typically are unaffected by
a leave of absence.
leave ofcourt. (18c) Judicial permission to follow a non
routine procedure <the defense sought leave of court
to allow the defendant to exit the courtroom when the
autopsy photographs are shown>. -Often shortened
to leave.
leave to sit. Parliamentary law. Permission from a delib
erative assemblv for a committee or other subordinate
body to meet while the assembly is meeting.
LEe. abbr. LOCAL-EXCHANGE CARRIER.
leccator (l..-kay-t ..r). [LatinJ Archaic. A debauched
person; a lecher. Also termed lecator.
lecherwite (lech-<'lr-wIt). See LAIRWITE.
lecture method. See HORNBOOK METHOD.
ledger (lej-<'lr). (16c) 1. A book or series ofbooks used for
recording financial transactions in the form ofdebits
and credits. Also termed general ledger. [Cases:
Evidence 2. Archaic. A resident ambassa
dor or agent. termed (in sense 2) leger; lieger.
ledo (lee-doh), n. [Latin] Hist. The rising water ofthe sea;
neap tide. See neap |
o (lee-doh), n. [Latin] Hist. The rising water ofthe sea;
neap tide. See neap tide under TIDE.
leet (leet). Hist. A criminal court. -The last leets were
abolished in England in 1977.
"Leet is a court derived out of the sheriff's turn, and
inquires of all offences under the degree of high treason
that are committed against the crown and dignity of the
king. But those offences which are to be punished with
loss of life or member, are only inquirable there, and to be
certified over to the justices of assise. See stat. 1 E. 3, c.
17:' Termes de 10 Lev 278-79 (lst Am. ed. 1812).
left-handed marriage. See morganatic marriage under
MARRIAGE (1).
legabilis (I<'l-gay-b<'l-lis), n. [Latin] Hist. Property or goods
that may be given by wilL -As an adjective, the term
also meant "bequeathable.
legable, adj. (Of property) capable of being
bequeathed.
legacy (Ieg-a-see), n. (15c) A gift by will, esp. ofpersonal
property and often of money. Cf. BEQUEST; DEVISE.
[Cases: Wills
absolute legacy. A legacy given without condition and
intended to vest immediately. Cf. vested legacy.
accumulated legacy. A legacy that has not yet been paid
to a legatee. accumulative legacy. See additional legacy.
additional legacy. A second legacy given to a legatee
in the same will (or in a codicil to the same will) that
gave another legacy. _ An additional legacy is supple
mentary to another and is not considered merely a
repeated expression of the same gift. -Also termed
accumulative legacy; cumulative legacy. [Cases: Wills
(:=585.]
alternate legacy. (1983) A legacy by which the testator
allows the legatee to choose one of two or more
items.
conditional legacy. (17c) A legacy that will take effect
or be defeated subject to the occurrence or nonoccur
rence ofan event. [Cases: Wills (;=>639-668.]
contingent legacy. (18c) A legacy that depends on
an uncertain event and thus has not vested. -An
example is a legacy given to one's granddaughter "if
she attains the age of21. [Cases: Wills (;=>628-638.]
cumulative legacy. See additional legacy.
demonstrative legacy (di-mon-str<'l-tiv). (18c) A legacy
paid from a particular source if that source has
enough money. -If it does not, the amount of the
legacy not paid from that source is taken from the
estate's general assets. lCases: Wills
failed legacy. See lapsed legacy.
general legacy. (18c) L A gift ofpersonal property that
the testator intends to come from the estate's general
assets, payable in money or items indistinguishable
from each other, such as shares of publicly traded
stock. [Cases: Wills 2. Civil law. A testator's
gift ofa fraction or proportion ofthe estate remaining
after particular legacies have been satisfied. 3. Civil
law. A testator's gift ofall, a fraction, or a proportion
of one of certain categories of property, as specified
by statute. See La. Civ. Code arts. 1586, 3506(28).
Also termed legacy under a general title. Cf. particular
legacy; universal legacy.
lapsed legacy. (18c) A legacy to a legatee who dies either
before the testator dies or before the legacy is payable.
-It falls into the residual estate unless the jurisdic
tion has an antilapse statute. Also termedfailed
legacy;failed gift. See ANTILAPSE STATUTE. [Cases:
Wills (;=>774-777.J
legacy under a general title. See general legacy.
legacy under a particular title. See particular legacy.
legacy under a universal title. Louisiana law. A testa
mentary disposition ofall immovable property, or all
movable property, or a fixed proportion ofall immov
able property or ofall movable property. La. Civ. Code
art. 1612. Cf. general legacy; particular legacy; univer
sal legacy. [Cases: Wills c~583.J
modal legacy (moh-d ..l). A legacy accompanied by
directions about the manner in which it will be
applied to the legatee's benefit <a modal legacy for
the purchase ofa business>.
975
particular legacy. Civil law. A testamentary gift that is
not expressed as a fraction or proportion and is less
than all the estate; any testamentary gift that does not
meet the definition ofa general legacy or a universal
legacy. See La. Civ. Code arts. 1587, 3506(28). -Also
termed legacy under a particular title. Cf. general
legacy; universal legacy. [Cases: Wills C=>586.]
pecuniary legacy (pi-kyoo-nee-er-ee). (18c) A legacy of
a sum ofmoney. [Cases: Wills C=>567.]
reSiduary legacy (ri-zij-oo-er-ee). (l8c) A legacy ofthe
estate remaining after the satisfaction of all claims
and all specific, general, and demonstrative legacies.
[Cases: Wills C=>586.]
special legacy. See spec~fic legacy.
specific legacy. (l8c) A legacy of a specific or unique
item ofproperty, such as any real estate or a particu
lar piece of furniture. Also termed specialZegacy.
[Cases: Wills 754.]
substitutional legacy. (1894) A legacy that replaces a
different legacy already given to a legatee.
trust legacy. A legacy of personal property to trustees
to be held in trust, with the income usu. paid to a
specified beneficiary.
universal legacy. Louisiana law. A testamentary dispo
sition ofall property, movable and immovable, to one
or more persons. La. Civ. Code art. 1585. Cf. general
legacy; legacy under a universal title; particular legacy.
[Cases: Wills C=>583.]
vested legacy. (18c) A legacy given in such a way that the
legatee has a fixed, indefeasible right to its payment.
A legacy is said to be vested when the testator's words
making the bequest convey a transmissible interest,
whether present or future, to the legatee. Thus, a legacy
to be paid when the legatee reaches the age of 21 is a
vested legacy because it is given unconditionally and
absolutely. Although the legacy is vested, the legatee's
enjoyment ofit is deferred. Cf. absolute legacy; contin
gent legacy. [Cases: Wills (:::'628-638.)
void legacy. (l8c) A legacy that never had any legal exis
tence. -The subject matter ofsuch a legacy is treated
as a part of the estate and passes under the residuary
clause of a will or (in the absence ofa residuary clause)
under the rules for intestate succession. [Cases: Wills
~849-872.]
legacy duty. See legacy tax under TAX.
legacy tax. See TAX.
legal, adj. (lSc) 1. Ofor relating to law; falling within
the province oflaw <pro bono legal services>. 2. Estab
lished, required, or permitted by law; LAWFUL <it is
legal to carry a concealed handgun in some states>.
3. Of or relating to law as opposed to equity. [Cases:
Action C=>21.J
legal act. (l5c) 1. Any act not condemned as illegal.
For example, a surgeon's incision is a legal act, while
stabbing is an illegal one. 2. An action or undertaking
that creates a legally recognized obligation; an act that
binds a person in some way. Legal Code
"A lunatic, though capable of holding property, was in
Roman law incapable of any legal act." Thomas E. Holland,
The Elements ofJurisprudence 354 (13th ed. 1924).
3. See act in the law under ACT. 4. See act of the law
under ACT.
legal-acumen doctrine (lee-gal a-kyoo-man). (1905) The
principle that ifa defect in, or the invalidity of, a claim
to land cannot be discovered without legal expertise,
then equ ity may be invoked to remove the cloud created
by the defect or invalidity.
legal-advice exception. 1. The rule that an attorney may
withhold as privileged the client's identity and infor
mation regarding fees, if there is a strong probability
that disclosing the information would implicate the
client in the criminal activity for which the attorney
was consulted. [Cases: Privileged Communications and
Confidentiality C=> 146.)2. An exemption contained in
open~meetings legislation, permitting a governmen
tal body to meet in closed session to consult with its
attorney about certain matters. [Cases: Administrative
Law and Procedure C=>124.]
legal age. (l8c) 1. See age ofcapacity under AGE. 2. See
age ofmajority (1) under AGE.
legal aid. (1890) Free or inexpensive legal services
provided to those who cannot afford to pay full price.
-Legal aid is usu. administered locally by a specially
established organization. See LEGAL SERVICES CORPO
RATION.
legal analyst. See PARALEGAL.
legal asset. See ASSET.
legal assistant. (1939) 1. PARALEGAL. 2. A legal secre
tary.
legal benefit. See BENEFIT (2).
legal brief. See BRIEF (1).
legal capital. See CAPITAL.
legal cause. See proximate cause under CAUSE (1).
legal centralism. The theory suggesting that state~con
structed legal entities form the center oflegallife and
control lesser normative systems (such as the family or
business networks) that define appropriate behavior
and social relationships. -Also termed legal centrism;
legocentrism (lee-goh-sen-triz-~m).
legal-certainty test. (1964) Civil procedure. A test
deSigned to determine whether the amOl1nt in contro
versy satisfies the minimum needed to establish the
court's jurisdiction. _ The amount claimed in the com
plaint will control unless there is a "legal certainty" that
the claim is actually less than the minimum amount.
See AMOUNT IN CONTROVERSY. [Cases: Federal Courts
C=>350, 359; Removal ofCases C=>75, 107(7).]
legal citology (sl-tol-a-jee). (1996) 'The study ofcitations
(esp. in footnotes) and their effect on legal scholar
ship. Often shortened to citology. legal citologist
(sI~tol-a-jist), n.
Legal Code. See CODE (2).
976 legal conclusion
legal conclusion. (l7c) A statement that expresses a legal
duty or result but omits the facts creating or supporting
the duty or result. Cf. CONCLUSION OF LAW; CONCLU
SION OF FACT; FINDING OF FACT.
legal consideration. See valuable consideration under
CONSIDERATION (1).
legal correlative. A legal status that has a corresponding
or reciprocal status, such as a right that corresponds to
a duty . Wesley Newcomb Hohfeld ofYale Law School
first introduced the bases for the concept oflegal correl
atives in two articles published in the Yale Law Journal
in 1913 and 1917. He polished the concept in the book
Fundamental Legal Conceptions, as Applied in Judicial
Reasoning and Other Legal Essays, published posthu
mously in 1919.
"Rights and duties have a distinct relationship and are
called legal correlatives by Hohfeld. In terms of intellectual
property, the right is a right to do certain things, such as
making copies of a work of copyright, making articles to
a design covered by a design right, or making products
in accordance with a patented invention. The correlative
duty is a duty owed by all others not to infringe the right.
This duty exists even if the person infringing the right
does not know of it. Looking at Hohfeld's scheme again,
it can be seen that there are associated privileges and' no
rights.' The right resulting from the operation of intellec
tual property gives the owner of that right a corresponding
privilege, that is the privilege to exploit the work. The cor
relative 'no right' is to the effect that persons other than
the owner do not have this privilege." David Bainbridge,
Intellectual Property 11 (5th ed. 2002),
legal cruelty. See CRUELTY.
legal custody. 1. See CUSTODY (2). 2. See CUSTODY (3). 3.
See DECISION-MAKING RESPONSIBILITY.
legal custom. See CUSTOM.
legal death. 1. See brain death under DEATH. 2. See civil
death (2) under DEATH. 3. See civil death (3) under
DEATH.
legal debt. See DEBT.
legal defense. See DEFENSE (1).
legal demand. See DEMAND (1).
legal dependent. See DEPENDENT.
legal description. (18c) A formal description of real
property, including a description of any part subject
to an easement or reservation, complete enough that a
particular piece ofland can be located and identified.
The description can be made by reference to a gov
ernment survey, metes and bounds, or lot numbers ofa
recorded plat. -Also termed land description. [Cases:
Deeds <>37.]
legal detriment. See DETRIMENT (2).
legal discretion. See judicial discretion under DISCRE
TION.
legal distributee. See DISTRIBUTEE.
legal drafting. See DRAFTING.
legal duty. See DUTY (1).
legal-elements test. (1980) Criminal law. A method of
determining whether one crime is a lesser included offense in relation to another crime, by examining the
components of the greater crime to analyze whether
a person who commits the greater crime necessarily
commits the lesser one too. Also termed same-ele
ments test. [Cases: Double Jeopardy <>;)162; Indictment
and Information <>189, 191.] |
ases: Double Jeopardy <>;)162; Indictment
and Information <>189, 191.]
legal entity. (18c) A body, other than a natural person,
that can function legally, sue or be sued, and make deci
sions through agents . A typical example is a corpora
tion. C[ artificial person under PERSON (3).
legalese (lee-ga-leez). (1914) The jargon characteristically
used by lawyers, esp. in legal documents <the partner
chided the associate about the rampant legalese in the
draft sublease>. -Also termed law-talk. See PLAIN
LANGUAGE MOVEMENT.
legal estate. See ESTATE (1).
legal estoppel. See ESTOPPEL.
legal ethics. (1828) 1. Standards ofprofessional conduct
applicable to members of the legal profeSSion. Ethical
rules consist primarily of the ABA Model Rules of Pro
fessional Conduct and the earlier ABA Model Code
of Professional Responsibility, together with related
regulatory judgments and opinions. The Model Rules
of Professional Conduct have been enacted into law,
often in a modified form, in most states. 2. The study
ofsuch standards. 3. A lawyer's practical observance of
or conformity to established standards ofprofeSSional
conduct. See MODEL RULES OF PROFESSIONAL CONDUCT.
[Cases: Attorney and Client <>32(2).]
"In one sense, the term 'legal ethics' refers narrowly to the
system of professional regulations governing the conduct
of lawyers. In a broader sense, however, legal ethics is
simply a special case of ethics in general, as ethics is
understood in the central traditions of philosophy and
religion. From this broader perspective, legal ethics cuts
more deeply than legal regulation: it concerns the funda
mentals of our moral lives as lawyers." Deborah L. Rhode
& David Luban, Legal EthicS 3 (1992).
legal etiquette. The profeSSional courtesy that lawyers
have traditionally observed in their professional
conduct, shown through civility and a strong sense of
honor. -Also termed etiquette ofthe profession.
legal evidence. See EVIDENCE.
legal excuse. See EXCUSE (2).
legal fact. See FACT.
legal father. See FATHER .
legal fence. See LAWFUL FENCE.
legal fiction. (l7c) An assumption that something is true
even though it may be untrue, made esp. in judicial rea
soning to alter how a legal rule operates; specif., a device
by which a legal rule or institution is diverted from its
original purpose to accomplish indirectly some other
object. The constructive trust is an example of a legal
fiction. -Often shortened to fiction. Also termed
fiction oflaw;fictio juris. [Cases: Trusts
"I ... employ the expression 'Legal Fiction' to signify any
assumption which conceals, or affects to conceal, the
fact that a rule of law has undergone alteration, its letter
remaining unchanged, its operation being modified ....
977
It is not difficult to understand why fictions in all their
forms are particularly congenial to the infancy of society.
They satisfy the desire for improvement, which is not quite
wanting, at the same time that they do not offend the
superstitious disrelish for change which is always present:'
Henry S. Maine, Ancient Law 21-22 (1 7th ed. 1901).
"legal fiction is the mask that progress must wear to pass
the faithful but blear-eyed watchers of our ancient legal
treasures. But though legal fictions are useful in thus miti
gating or absorbing the shock of innovation, they work
havoc in the form of intellectual confusion." Morris R.
Cohen, Law and the Social Order 126 (1933).
legal force. See reasonable force under FORCE.
legal formalism, n. (1895) The theory that law is a set of
rules and principles independent of other political and
social institutions . Legal formalism was espoused by
such scholars as Christopher Columbus Langdell and
Lon Fuller. Cf. LEGAL REALISM. legal formalist, n.
legal fraud. See constructive fraud (I) under FRAUD.
legal heir. See HEIR (1).
legal holiday. (1867) A day designated by law as exempt
from court proceedings, issuance of process, and the
like. Legal holidays vary from state to state. Some
times shortened to holiday. -Also termed nonjudicial
day. [Cases: Holidays (~L]
legal hybrid. Property. A cooperative housing unit in
which the same person holds a lease and also owns
stock in the cooperative association that owns or leases
the unit. [Cases: Landlord and TenantC=>350.]
legal impossibility. See IMPOSSIBILITY.
legal inconsistency. See legally inconsistent verdict under
VERDICT.
legal injury. See INJURY.
legal-injury rule. (1956) The doctrine that the statute of
limitations on a claim does not begin to run until the
claimant has sustained some legally actionable damage.
Under this rule, the limitations period is tolled until
the plaintiff has actually been injured. Also termed
damage rule. [Cases; Limitation of Actions C=>43.]
legal innocence. See INNOCENCE.
legal insanity. See INSANITY.
legal instrument. See INSTRUMENT (1).
legal interest. 1. INTEREST (2). 2. INTEREST (3).
legal interruption. See INTERRUPTION.
legal intromission. See INTROMISSION.
legal investments. See LEGAL LIST.
legalis homo (Ia-gay-lis hoh-moh). [Latin "lawful man"]
Hist. A person who has full legal capacity and full legal
rights; one who has not been deprived of any rights in
court by outlawry, excommunication, or infamy . A
legalis homo was said to stand rectus in curia ("right in
court"). A lawful man was able to serve as a juror and to
swear an oath. Pl.legales homines (la-gay-leez hom-a
neez). -Also termed legal man; lawful man; lageman;
liber et legalis homo. See RECTUS IN CURIA. legally
legalism, n. (1928) 1. Formalism carried almost to the
point of meaninglessness; an inclination to exalt the
importance oflaw or formulated rules in any area of
action.
"What is legalism? It is the ethical attitude that holds moral
conduct to be a matter of rule following, and moral rela
tionships to consist of duties and rights determined by
rules." Judith N. Shklar, Legalism: Law, Morals, and Political
Trials 1 (1964).
"If ... the law and the lawyer are to make a socially valuable
contribution to the operation of the social security system,
there must be abandoned old-established habits of
thought as to the nature of law and the whole gamut of
practices summed up in the layman's word of deadly insult,
'legalism' his word for rigid attachment to legal prec
edent, the substitution of legal rule for policy, the fettering
of discretion, the adversary style, the taking of technical
points, formality." leslie Scarman, English Law The New
Dimension 43 (1974).
2. A mode of expression characteristic oflawyers; a
jargonistic phrase characteristic of lawyers, such as
"pursuant to."
legalis moneta Angliae (la-gay-lis ma-nee-ta ang-glee
eel, n. [Latin] Lawful money of England.
legal issue. See ISSUE (1).
legalist, n. (1829) A person who views things from a
legal or formalistic standpoint; esp., one who believes
in strict adherence to the letter of the law rather than
its spirit.
legalistic, adj. (l7c) Characterized by legalism; exalting
the importance of law or formulated rules in any area
of action <a legalistic argument>.
legality. (ISc) 1. Strict adherence to law, prescription, or
doctrine; the quality ofbeing legal. 2. The principle that
a person may not be prosecuted under a criminal law
that has not been previously published. Also termed
(in sense 2) principle oflegality.
legalize, vb. (18c) 1. To make lawful; to authorize or
justify by legal sanction <the bill to legalize marijuana
never made it to the Senate floor>. 2. To imbue with the
spirit of the law; to make legalistic <as religions age,
they tend to become legalized>. -legalization, n.
legalized nuisance. See NUISANCE.
legal jeopardy. See JEOPARDY.
legal jointure. See JOINTURE (2).
legal liability. See LIABILITY (1).
legal life estate. See life estate under ESTATE (1).
legal life tenant, See LIFE TENANT.
legal list. A group of investments in which institutions
and fiduciaries (such as banks and insurance com
panies) may legally invest according to state statutes.
States usu. restrict the legal list to low-risk securi
ties meeting certain specifications. -Also termed
approved list; legal investments.
legally, adv. (16c) In a lawful way; in a manner that
accords with the law.
978 legally determined
legally determined, adj. (17c) (Of a claim, issue, etc.)
decided by legal process <liability for the accident was
legally determined>.
legally incapacitated person. (1919) A person, other than
a minor, who is temporarily or permanently impaired
by mental illness, mental deficiency, physical illness or
disability, or alcohol or drug use to the extent that the
person lacks sufficient understanding to make or com
municate responsible personal decisions or to enter into
contracts. Abbr. LIP. -Also termed legally incom
petent person; incompetent, n.
legally inconsistent verdict. See VERDICT.
legally liable. See LIABLE.
legally protected interest. See INTEREST (2).
legally sufficient consideration. See sufficient consider
ation under CONSIDERATION (1).
legal malice. See implied malice under MALICE.
legal malpractice. See MALPRACTICE.
legal man. See LEGALIS HOMO.
legal maxim. See MAXIM.
legal memory. (1882) The period during which a legal
right or custom can be determined or established .
Traditionally, common-law legal memory began in
the year 1189, but in 1540 it became a steadily moving
period of60 years. Cf. TIME IMMEMORIAL (1).
"Because of the importance to feudal landholders of seisin
and of real property in general, the writ of right has been
called 'the most solemn of all actions.' Nevertheless, it
was believed that the time within which such a complain
ant would be allowed to prove an ancestor to have been
seised of the estate in question must be limited. At first this
was done by selecting an arbitrary date in the past, before
which 'legal memory' would not run. The date initially was
Dec. 1, 1135 (the death of Henry I); in 1236 it was changed
by statute to Dec. 19, 1154 (the coronation of Henry II); and
in 1275 it became Sept. 3, 1189 (the coronation of Richard
I). Finally, in 1540, an arbitrary period of sixty years was
set as the period of 'legal memory.' The latter change was
probably made because it was felt that a 350-year statute
of limitations was somewhat awkward." Thomas F. Bergin
& Paul G. Haskell, Preface to Estates in Land and Future
Interests 45 n.65 (2d ed. 1984).
legal mind. (i8c) The intellect, legal capacities, and
attitudes of a well-trained lawyer -often used as a
personified being <although this distinction occurs
naturally to the legal mind, it is too technical to be sat
isfactory>.
legal monopoly. See MONOPOLY.
legal moralism. (1963) The theory that a government or
legal system may prohibit conduct that is considered
immoraL
legal mortgage. See MORTGAGE.
legal name. See NAME.
legal negligence. See negligence per se under NEGLI
GENCE.
legal newspaper. See ;-JEWSPAPER.
legal notice. See NOTICE.
legal obligation. See OBLIGATION. legal officer. See OFFICER (2).
legal opinion. See OPINION (2).
legal order. (l6c) 1. Traditionally, a set of regulations
governing a society and those responsible for enforcing
them. 2. Modernly, such regulations and officials plus
the processes involved in creating, interpreting, and
applying the regulations.
legal owner. See OWNER.
legal parent. See PARENT (1).
legal paternalism. (1913) The theory that a government
or legal system is justified in controlling the individual
and private affairs of citizens. This theory is often
associated with legal pOSitivists. See PATERNALISM;
LEGAL POSITIVISM.
legal person. See artificial person under PERSON (3).
legal personality. See PERSONALITY (1).
legal-personal representative. See REPRESENTATIVE.
legal philosophy. See general jurisprudence (2) under
JURISPRUDENCE.
legal pneumoconiosis. See PNEUMOCONIOSIS.
legal portion. See LEGITIME.
legal positivism, n. (I939) The theory that legal rules
are valid only because they are enacted by an existing
political authority or accepted as binding in a given
society, not because they are grounded in morality or
in natural law. -Legal positivism has been espoused
by such scholars as H.L.A. Hart. See POSITIVE LAW. Cf.
LOGICAL POSITIVISM. -legal positivist, n.
"[Ilt will be helpful to offer some comparisons between
legal positivism and its counterpart in science. Scien
tific positivism condemns any inquiry projecting itself
beyond observable phenomena; it abjures metaphysics, it
renounces in advance any explanation in terms of ultimate
causes. Its program of research is to chart the regulari
ties discernible in the phen |
in advance any explanation in terms of ultimate
causes. Its program of research is to chart the regulari
ties discernible in the phenomena of nature at the point
where they become open to human observation, without
asking as it were -how they got there. In the setting of
limits to inquiry there is an obvious parallel between scien
tific and legal positivism. The legal positivist concentrates
his attention on law at the point where it emerges from
the institutional processes that brought it into being. It is
the finally made law itself that furnishes the subject of his
inquiries. How it was made and what directions of human
effort went into its creation are for him irrelevancies." Lon
L. Fuller, Anatomy of the Law 177-78 (1968).
legal possessor. See POSSESSOR.
legal practice. See PRACTICE OF LAW.
legal practitioner. 1. A lawyer. 2. In the traditional
English system, a member of one of the recognized
branches ofpractice.
"Legal practitioners may be either barristers, special
pleaders not at the bar, certified conveyancers, or solici
tors. The three latter may recover their fees, but the first
may not, their acting being deemed of a voluntary nature,
and their fees merely in the light of honorary payments;
and it follows from this, that no action lies against them
for negligence or unskilfulness." John Indermaur, Principles
of the Common Law 169 (Edmund H. Bennett ed., 1st Am.
ed. 1878).
legal prejudice. See PREJUDICE.
979
legal presumption. See presumption oflaw under PRE
SUMPTION.
legal proceeding. 07c) Any proceeding authorized by
law and instituted in a court or tribunal to acquire a
right or to enforce a remedy.
legal process. See PROCESS.
legal question. See QUESTION OF LAW.
legal rate. See INTEREST RATE.
legal realism, n. (1930) The theory that law is based, not
on formal rules or principles, but instead on judicial
decisions that should derive from social interests and
public policy. _ American legal realism which flour
ished in the early 20th century was espoused by
such scholars as John Chipman Gray, Oliver Wendell
Holmes, and Karl Llewellyn. Cf. LEGAL FORMALISM.
legal realist, n.
legal regime. See REGIME.
legal relation. The connection in law between one person
or entity and another; VINCULUM JURIS.
legal remedy. See REMEDY.
legal representative. See REPRESENTATIVE.
legal rescission. See RESCISSION.
legal research. (18c) l. The finding and assembling of
authorities that bear on a question oflaw. 2. The field
of study concerned with the effective marshaling of
authorities that bear on a question oflaw.
legal reserve. See RESERVE.
legal residence. See DOMICILE (2).
legal right. See RIGHT.
legal ruling. See RULING.
legal science. (ISc) The field of study that, as one of the
social sciences, deals with the institutions and prin
ciples that particular societies have developed (1) for
defining the claims and liabilities of persons against
one another in various circumstances, and (2) for
peaceably resolving disputes and controversies in
accordance with principles accepted as fair and right
in the particular community at a given time.
legal secretary. (IS97) An employee in a law office whose
responsibilities include typing legal documents and
correspondence, keeping records and files, and per
forming other duties supportive of the employer's
law practice. -Legal secretaries are usu. more highly
skilled, and therefore more highly compensated, than
secretaries in general business.
legal seisin. See seisin in law under SEISIN.
legal separation. 1. See SEPARATION (1). 2. See SEPA
RATION (2). 3. See divorce a mensa et thoro under
DIVORCE.
Legal Services Corporation. A nonprofit federal corpo
ration that provides financial aid in civil cases to those
who cannot afford legal assistance through grants to
legal-aid and other organizations and by contracting
with individuals, firms, corporations, and organizations legate
to provide legal services. -TIle agency was created by
the Legal Services Corporation Act of 1974.42 USCA
2996. [Cases: Corporations <:;::)377.5.]
legal servitude. See SERVITUDE (2).
legal signature. See SIGNATURE.
legal subdivision. See SUBDIVISION.
legal subrogation. See SUBROGATION.
legal succession. l. See SUCCESSION (2). 2. See DESCENT.
legal tender. (I8c) The money (bills and coins) approved
in a country for the payment of debts, the purchase of
goods, and other exchanges for value. See TENDER (5).
[Cases: United States (?34.]
legal theory. (1804) 1. See general jurisprudence under
JURISPRUDENCE. 2. The principle under which a litigant
proceeds, or on which a litigant bases its claims or
defenses in a case.
legal title. See TITLE (2).
legal tutorship. See TUTORSHIP.
i legal-unities doctrine. Elist. The common-law rule that
a wife had no separate existence from her husband.
Also termed doctrine oflegal unities; unities doctrine
ofmarriage. See MARRIED WOMEN'S PROPERTY ACTS;
SPOUSAL-UNITY DOCTRINE.
legal usufruct. See USUFRUCT.
legal value. See BENEFIT (2).
I legal vote. See VOTE (1).
legal voter. See VOTER (2).
legal willfulness. See WILLFULNESS.
Legal Writing Institute. A nonprofit corporation
founded in 1984 to promote the exchange of informa
tion and ideas about the teaching oflegal writing. -It is
composed mainly oflegal-writing teachers at American
law schools. Like its sister organization, the Associa
tion ofLegal Writing Directors, it seeks to improve the
teaching oflegal writing through research and scholar
ship, a biennial conference, an annual survey of legal
writing programs, an active Iistserv, and publications
that include a journal called Legal Writing. Abbr.
LWI.
legal wrong. See WRONG.
legantine. See LEGATINE.
legare (la-gair-ee), vb. [Latin] Roman law. To bequeath
one or more specified items to some person other than
an heir, or to make such a bequest to an heir in advance
ofthe estate's division between the heirs.
legatarius (leg-d-tair-ee-as), n. [Latin] 1. Roman law. The
person to whom property is bequeathed; the named
recipient of a legatum; LEGATEE. 2. Hist. A legate; a mes
senger or envoy. See LEGATE. PL legatarii.
legatary (leg-a-ter-ee), n. Archaic. See LEGATEE.
legate (leg-it), n. [fro Latin legare "to send as an envoy"]
(I2c) 1. Roman law. An official who undertakes a special
mission for the emperor, or an official or body such as a
municipality. 2. Roman law. A person deputed to assist
980 legate
or act for the emperor, a governor, or a general in a
military or administrative activity. 3. A papal represen
tative who mayor may not have both diplomatic and
ecclesiastical status; a diplomatic agent ofthe Vatican.
Cf. NUNCIO (1); INTERNUNCIO (3).
legate a latere (ay lat-<l-ree). See legatus a latere under
LEGATUS.
legate missus (mis-Js). See legatus missus under
LEGATUS.
legate natus (nay-tds). See legatus natu5 under
LEGATUS.
4. A representative of a state or the highest authority in
a state; an ambassador; a person commissioned to rep
resent a country in a foreign country. -Also termed
legatus. legatine, adj.
legate (lJ-gayt), vb. To give or leave as a legacy; to make
a testamentary gift of(property); BEQUEATH.
legatee (Ieg-J-tee). (17c) 1. One who is named in a will to
take personal property; one who has received a legacy
or bequest. [Cases: Wills ~492-520.]2. Loosely, one
to whom a devise of real property is given. -Also
termed (archaically) legatary. Cf. DEVISEE.
general legatee. A person whose bequest is of a speci
fied quantity to be paid out of the estate's personal
assets. [Cases: Wills C':::)756.]
residuary legatee (ri-zij-oo-er-ee). (18c) A person des
ignated to receive the residue of a decedent's estate.
See residuary estate under ESTATE (3). [Cases: Wills
<8=,586.]
specific legatee. (18c) The recipient, under a will, ofdes
ignated property that is transferred by the owner's
death. [Cases: Wills 754.]
universal legatee. A residuary legatee that receives the
entire residuary estate.
legatine (leg-J-teen or -tm), adj. Of or relating to a
legate. Also termed (erroneously) legantine.
legatine constitution. Hist. Eccles. law. A code ofecdesi
asticallaws issued with the authority ofa papal legate,
such as those enacted in English national synods in
1220 and 1268.
legatine court. See COURT.
legation (l<l-gay-sh;m). (14c) Int'llaw. 1. The act or
practice of sending a diplomat to another country; a
diplomatic mission. 2. A body of diplomats sent to a
foreign country and headed by an envoy extraordi
nary or a minister plenipotentiary. 3. The official resi
dence of a diplomatic minister in a foreign country.
Cf. EMBASSY.
legator (l<l-gay-tJr or leg-d-tor), n. Rare. One who
bequeaths a legacy; TESTATOR.
legatory (leg-J-tor-ee), n. Hist. The one-third portion of
a freeman's estate in land that he could dispose of by
will. -The other two portions of the estate were subject
to claims ofthe wife and children. legatum (lJ-gay-tdm), n. [Latin fr.legare "to bequeath"]
1. Roman law. A special bequest; a gift left by a deceased
person to be paid from the estate by the heir. -Unlike an
heir, a legatee acquired a benefit and no duties attached.
2.l:list. A legacy or bequest to the church, esp. for tithes
not paid while the donor lived. See MORTUARY.
legatum debiti (l<l-gay-t<lm deb-<l-tI). [Latin "legacy of
debt"] Roman law. A legacy to the decedent's creditor
of what the decedent owes. _ This type oflegacy was
void unless it bettered the creditor's position in some
way, as by removing a valid defense that the debtor
had to the creditor's claim.
legatum dotis (I<1-gay-t<lm doh-tis). [Latin] Roman
law. A legacy ofdowry. - A husband might bequeath
a dowry back to his wife, the result being that the
husband's heirs were not entitled to retain the usual
deductions for children, and the widow could receive
her dowry immediately.
legatum generis (IJ-gay-t<lm jen-<l-ris). [Latin "legacy of
a genus") Roman law. A legacy ofa subject ofa general
class; a legacy ofa kind ofthing, rather than a specifi
cally named item. For example, the testator might
make a gift of a horse without specifically naming
which one often horses in the estate.
"Legatum generis .... Normally the testator set in his tes
tament who had to make the choice from among the things
of the same kind (slaves, horses) belonging to the estate:
the heir, the legatee or a third person. The jurists did not
agree about the solution [when] ... the testator did not
entitle any person to make the selection. Apparently the
rules varied according to the form in which such a legacy
(/egatum) was left. The Justinian law favored the choice
by the legatee." Adolf Berger, Encyclopedic Dictionary of
Roman Law 540 (1953).
legatum liberationis (IJ-gay-tJm lib-J-ray-shee-oh
nis). [Latin "legacy of a discharge"] Roman law.
A legacy by which a testator released the indebted
legatee from a debt. -Also termed liberatio legata
(lib-<l-ray-shee-oh l;)-gay-td).
legatum nominis (ld-gay-tdm nahm-J-nis). [Latin
"legacy of a name"] Roman law. A legacy by which
a testator willed to the legatee a debt owed to the
testator from a third party. -The heir was obliged to
hand over the relevant documents and cede any rights
ofaction on them.
legatum optionis (lJ-gay-tJm op-shee-oh-nis). [Latin
"legacy ofan option"] Roman law. A legacy ofone of
several items that the deSignated beneficiary chooses
from the testator's estate . Originally, if the legatee
died after the testator but before making the selection,
the legacy failed. Justinian later changed the law to
make selection by the legatee's representative under
these circumstances valid.
legatum peculii (lJ-gay-t<lm pi-kyoo-lee-I). [Latin]
Roman law. A legacy of a peculium to a free person
or to a manumitted slave; a legacy ofa slave's peculium
with or without the slave. See PECULIUM.
legatum quantitatis (lJ-gay-t<lm kwon-ti-tay-tis).
[Latin "a legacy of quantity"] Roman law. A general
legacy of a certain amount, such as a legacy of two
horses.
legatum rei alienae (l,,-gay-tiJm ree-I |
a legacy of two
horses.
legatum rei alienae (l,,-gay-tiJm ree-I ay-lee-ee-nee or
al-ee-). [Latin "a legacy of something belonging to
another"] Roman law. A legacy ofan item that belongs
to a third party. The heir was obliged to purchase
the item from the third party, if that was possible,
and give it to the legatee or otherwise pay its value
to the legatee.
legatum universitatis (l,,-gay-tiJm yoo-ni-vdr-sd-tay
tis). [Latin "a universal legacy"] Hist. A legacy of the
testator's entire estate.
legatus (\iJ-gay-tds), n. A legate. PI. 'egati (liJ-gay-tr) See
LEGATE.
legatus a latere (ay lat-d-ree). [Latin "legate from
the (Pope's) side"] A papal legate (esp. a cardinal)
appointed for a special diplomatic mission and not as
a permanent representative . This is a type oflegatus
missus. Also termed legate a latere. Cf. NUNCIO.
legatus datus (day-tds). See legatus missus.
legatus missus (mis-iJs). [Latin "legate sent"] A legate
sent on a special mission. -Also termed legate
missus; legatus datus (day-tds).
legatus natus (nay-tds). [Latin "legate born"] A bishop
or archbishop who claims to be a legate by virtue of
office in an important see, such as Canterbury.
Also termed legate natus.
legem amittere (Iee-jdm d-mit-d-ree), vb. [Latin "to lose
one's law"] Hist. To lose the privilege oftaking an oath,
usu. because of a criminal conviction.
legem Jacere (lee-jam fay-siJ-ree), vb. [Law Latin] Hist.
To make an oath; to wage law.
legem Jerre (Iee-j"m fer-ee), vb. [Latin "to carry the
proposal"] Roman law. 1. To propose a law to the
popular assembly. 2. To enact a law.
legem habere (lee-j"m h<l-beer-ee), vb. [Latin] Hist. To
be able to testify under oath. In England, witnesses
with criminal convictions were unable to testify until
the 19th century, by the Evidence Act of 1843 (6 & 7
Vict., ch. 85).
legem jubere (lee-jam jd-beer-ee), vb. [Latin] Roman law.
To pass a proposed law.
legem ponere (lee-jdm poh-n,,-ree), vb. [Latin] Hist. 1.
To propound a law. 2. To pay in cash.
legem sciscere (lee-jdm sis-d-ree), vb. [Latin] Roman law.
(Of the people) to consent to a proposed law.
legem vadiare (lee-jam vad-ee-air-ee), vb. [Latin] Hist.
To wage law; to offer to make a sworn defense to an
action for debt, accompanied by 11 neighbors as char
acter witnesses. See COMPURGATION.
legenita. See LAIRWITE.
leger, n. Archaic. See LEDGER (2).
legerwite. See LAIRWITE.
leges (lee-jeez), n. pI. [Latin] 1. See LEX. 2. See LEGES
PUBLICAE. leges Angliae (lee-jeez aug-glee-ee). [Latin] Hist. The
laws of England, as distinguished from the civil law
and other legal systems.
leges barbarorum (Iee-jeez bahr-ba-ror-<lm). [Latin
"laws of the barbarians"] Hist. The customary laws
of medieval European law; esp., the customary laws
of Germanic tribes during the Middle Ages . These
include the lex ramana Visigotharum, the lex Burgun
diallum, and the lex Saliea. -Also termedfolk Laws.
See SALIC LAW.
"Many of the conquering Germanic tribes sought to state
their own tribal customs in writing. Several of these so
called codes or leges barbarorum were published from
time to time shortly after the fall of the Western Empire
in the middle of the fifth century until about the time of
Charlemagne, 800. The most famous is a Frankish one, the
Lex Salica, which probably dates from the second half of
the fifth century," W.j.V. Windeyer, Lectures on Legal History
1 (2d ed. 1949).
leges centuriatae. See LEX CENTURrATA.
leges curiatae. See LEX CURIATA.
leges de imperio. See LEGES IMPERII.
leges Edwardi ConJessoris (lee-jeez ed-wahr-dr kon
fd-sor-is), n. [Latin "Laws of Edward the Confessor"]
Hist. A legal treatise written between 1130 and 1135, of
dubious authority, compiling English law as it stood at
the end of the reign of Henry I.
"[Wje have a book [leges Edwardi Confessoris] written
in Latin which expressly purports to give us the law of
Edward as it was stated to the Conqueror in the fourth
year of his reign by juries representing the various parts of
England .... It is a private work of a bad and untrustworthy
kind. It has about it something of the political pamphlet
and is adorned with pious legends. The author, perhaps
a secular clerk of French parentage, writes in the interest
of the churches, and, it is to be feared, tells lies for them."
1 Frederick Pollock & FrederiC W. Maitland, The History
of English Law Before the Time of Edward I 103 (2d ed.
1898).
leges et consuetudines regni (lee-jeez et kon-swa-t[y]
oo-di'/-neez reg-nI), n. [Latin "laws and customs of
the kingdom"] Hist. The common law. This was the
accepted term for the common law since at least the
late 12th century.
leges Henrici (lee-jeez hen-rI-sI), n. [Latin] Hist. A book
anonymously written between 1114 and 1118 contain
ing Anglo-Saxon and Norman law. The book lends
insight to the period before the full development of
Norman law in England. -Also termed leges Henrici
Primi.
"Closely connected with the Quadripartitus is a far more
important book, the so-called Leges Henrici. It seems to
have been compiled shortly before the year 1118. After a
brief preface, it gives us Henry's coronation charter (this
accounts for the name which has unfortunately been given
in modern days to the whole book), and then the author
makes a gallant, if forlorn, attempt to state the law of
England. At first sight the outcome seems to be a mere
jumble of fragments .... Sut the more closely we examine
the book, the more thoroughly convinced we shall be that
its author has undertaken a serious task in a serious spirit;
he means to state the existing law of the land ...." 1 Fred
erick Pollock & Frederic W. Maitland, The History of English
Law Before the Time of Edward 199 (2d ed. 1898).
leges imperii 982
leges imperii (lee-jeez im-peer-ee-I). [Latin] Roman law.
Laws conferring lawmaking and other powers on the
emperor. -Also termed leges de imperio.
leges Juliae (lee-jeez joo-Iee-ee). See lex Julia judiciorum
publicorum under LEX JULIA.
leges non scriptae (lee-jeez non skrip-tee). [Latin] Hist.
Unwritten or customary laws, including ancient acts of
Parliament. Cf. LEGES SCRIPTAE.
leges publicae (lee-jeez p;)b-ld-see). [Latin] Roman
law. Statutes passed by the vote of the Roman people
in popular assemblies . Most leges publicae were of
temporary political interest but some, such as the lex
Aquilia or the lex Falcidia, had a long life. -Often
shortened to leges.
Leges regiae (lee-jeez ree-ji-ee). [Latin] Roman law. Frag
ments of customary law relating mostly to religious
rites and traditionally attributed to Roman kings.
leges sacratae (lee-jeez sd-kray-tee). [Latin] Roman law.
Laws whose violation was punished by devoting the
offender to the infernal gods.
leges scriptae (lee-jeez skrip-tee), n. [Latin] Hist. Written
laws; esp., statutory laws or acts of Parliament that are
reduced to writing before becoming binding. Cf. LEGES
NON SCRIPTAE.
leges sub graviori lege (lee-jeez sdb grav-ee-or-I lee-jee).
[Latin] Laws under a weightier law.
leges tabellariae (lee-jeez tab-d-Iair-ee-ee). [Latin]
Roman law. Laws that regulated voting by ballot.
leges tributae (lee-jeez tri-byoo-tee). [Latin] Roman law.
Laws passed in the comitia tributa. See comitia tributa
under COMITIA.
legibus solutus (lee-jd-bds sd-Ioo-tds), adj. [Latin
"released from the laws"] Roman law. (Of the emperor
or other designated person) not bound by the law.
legiosus (lee-jee-oh-sds), adj. [Law Latin] Hist. liti
gious.
legis actio (lee-jis ak-shee-oh). Roman law. A legal or
lawful action; an action at law requiring the use of a
fixed form of words . These actions were abolished
by the leges Juliae. -Also termed actio legis. PI. legis
actiones (lee-jis ak-shee-oh-neez).
legis actio sacramento. See SACRAMENTO.
legislate, vb. (180) 1. To make or enact laws <the role of
our lawmakers is to legislate, not to adjudicate>. 2. To
bring (something) into or out of existence by making
laws; to attempt to control (something) by legisla
tion <virtually every attempt to legislate morality has
failed>.
legislation. (17c) 1. The process ofmaking or enacting a
positive law in written form, according to some type of
formal procedure, by a branch of government consti
tuted to perform this process. -Also termed lawmak
ing; statute-making. 2. The law so enacted. 3. The whole
body of enacted laws.
ancillary legislation. (1860) Legislation that is auxil
iary to principal legislation. antideficiency legislation. 1. Legislation enacted to
provide revenue to cover a budget deficiency. 2. Leg
islation enacted to limit the rights of secured creditors
to recover in excess ofthe security. -Also termed (in
sense 2) antideficiency statute.
bare-bones legislation. See skeletal legislation.
class legislation. See local and special legislation.
general legislation. (18c) Legislation that applies to the
community at large. [Cases: Statutes C=>68.]
judicial legislation. (18c) The making ofnew legal rules
by judges; JUDGE-MADE LAW (2).
"It has been said to be 'merely misleading' to speak of
judicial legislation, and it must be admitted that to do
so is to use highly metaphorical language. There is no
equivalent to the authoritative text of a statute, and, even
when they are not bound by a statute or indistinguish
able precedent, the judges' power to innovate is limited
by what they cannot consider as well as by what they must
consider. They cannot conduct those extensive examina
tions of empirical data and considerations of social policy
which precede, or should precede, much legislation."
Rupert Cross & JW. Harris, Precedent in English Law 34
(4th ed. 1 991).
local and special legislation. (1853) Legislation that
affects only a specific geographic area or a particular
class ofpersons . Such legislation is unconstitutional
ifit arbitrarily or capriciously distinguishes between
members of the same class. -Also termed class leg
islation. [Cases: Statutes C=>76-104.]
pork-barrel legislation. (1961) Legislation that favors
a particular local district by allocating funds or
resources to projects (such as constructing a highway
or a post office) ofeconomic value to the district and
of political advantage to the district's legislator.
skeletal legislation. Basic legislation that broadly states
objectives and standards rather than prescribing
precise and definite rules, usu. with the expectation
that it will be amplified by a body other than the leg
islature . Administrative and regulatory agencies are
usu. authorized to interpret the legislation and create
rules and regulations for its application and enforce
ment. But the executive branch may also be called
upon to flesh out the law. -Also termed skeleton
legislation; bare-bones legislation.
subordinate legislation. (18c) 1. Legislation that derives
from any authority other than the sovereign power in
a state and that therefore depends for its continued
existence and validity on some superior or supreme
authority. 2. REGULATION (3).
supreme legislation. (17c) Legislation that derives
directly from the supreme or sovereign power in a
state and is therefore incapable of being repealed,
annulled, or controlled by any other legislative
authority.
4. A proposed law being considered by a legislature
<gun-control legislation was debated in the House>.
5. The field ofstudy concentrating on statutes.
legislative, adj. Of or relating to lawmaking or to the
power to enact laws.
legislative apportionment. See APPORTIONMENT (3).
legislative assembly. See LEGISLATURE.
legislative branch. (I8c) Ihe branch of government
responsible for enacting laws; LEGISLATURE. Cf. EXECU
TIVE BRANCH; JUDICIAL BRANCH.
legislative committee. See COMMITTEE.
legislative |
IVE BRANCH; JUDICIAL BRANCH.
legislative committee. See COMMITTEE.
legislative council. 1. A state agency that studies legis
lative problems and plans legislative strategy between
regular legislative sessions. 2. In some English-speak
ing jurisdictions, the upper house of a legislature
(corresponding to an American Senate). 3. In some
English-speaking jurisdictions, the lower house of a
legislature (corresponding to an American House of
Representatives).
legislative counsel. (1839) A person or group charged
with helping legislators fulfill their legislative duties,
such as by performing research, drafting bills, and the
like.
legislative court. See COURT.
legislative day. See DAY.
legislative district. See DISTRICT.
legislative districting. (1962) The process of dividing a
state into territorial districts to be represented in the
state or federal legislature. See APPORTIONMENT (3);
REAPPORTIONMENT; GERRYMANDERING. Cf. MALAP
PORTIONMENT. [Cases: States C=-27.]
legislative divorce. See DIVORCE.
legislative-equivalency doctrine. (2003) The rule that
a law should be amended or repealed only by the same
procedures that were used to enact it. [Cases: Statutes
<:;:=:> 129, 149.J
legislative fact. See FACT.
legislative function. 1. The duty to determine legislative
policy. 2. The duty to form and determine future rights
and duties. See LEGISLATIVE POWER.
legislative history. (1844) The background and events
leading to the enactment of a statute, including
hearings, committee reports, and floor debates.
Legislative history is sometimes recorded so that it can
later be used to aid in interpreting the statute. [Cases:
Statutes <:;:=:>216-217.4.]
legislative immunity. See IMMUNITY (1).
legislative intent. (1812) The design or plan that the leg
islature had at the time ofenacting a statute. -Also
termed intention ofthe legislature; intent ofthe legisla
ture; congressional intent; parliamentary intent. [Cases:
Statutes Cd181(1).]
'The intention of the legislature is a common but very
slippery phrase, which, popularly understood, may signify
anything from intention embodied in positive enactment
to speculative opinion as to what the legislature probably
would have meant. although there has been an omission
to enact it. In a court of law or equity, what the legislature
intended to be done or not to be done can only be legiti
mately ascertained from that which it has chosen to enact,
either in express words or by reasonable and necessary
implication." Saloman v. Saloman & Co., [1897] A.C. 22, at 38 (as quoted in Rupert Cross. Statutory Interpretation
36-37 (1976)).
dormant legislative intent. The intent that the legisla
ture would have had if a given ambiguity, inconsis
tency, or omission had been called to the legislators'
minds. -Sometimes shortened to dormant intent.
Also termed latent intent; latent intention.
legislative investigation. A formal inquiry conducted by
a legislative body incident to its legislative authority.
A legislature has many of the same powers as a court
to support a legislative inquiry, including the power to
subpoena and cross-examine a witness and to hold a
witness in contempt. [Cases: United States
legislative jurisdiction. See JURISDICTION.
legislative law. See STATUTORY LAW.
legislative officer. See OFFICER (1).
legislative power. (17c) Constitutional law. The power
to make laws and to alter them; a legislative body's
exclusive authority to make, amend, and repeal laws.
_ Under federal law, this power is vested in Congress,
consisting of the House of Representatives and the
Senate. A legislative body may delegate a portion of
its lawmaking authority to agencies within the execu
tive branch for purposes ofrulemaking and regulation.
But a legislative body may not delegate its authority to
the judicial branch, and the judicial branch may not
encroach on legislative duties. [Cases: Separation of
Powers <:;:=:>2340-2446.)
legislative privilege. See PRIVILEGE (1).
Legislative Reference Service. Hist. See CONGRESSIONAL
RESEARCH SERVICE.
legislative rule. An administrative rule created by an
agency's exercise ofdelegated quasi-legislative authority .
A legislative rule has the force oflaw. - Also termed
substantive rule. Cf. INTERPRETATIVE RULE. [Cases:
Administrative Law and Procedure G--::-382.1.]
legislative veto. See VETO.
legislator, n. (17c) One who makes laws within a given
jurisdiction; a member of a legislative body. Also
termed lawmaker. -legislatorial (lej~is-l<l-tor-ee-dl),
adj.
legislature. (l7c) The branch ofgovernment responsible
for making statutory laws. -The federal government
and most states have bicameral legislatures, usu. con
sisting of a house of representatives and a senate.
Also termed legislative assembly. Cf. EXECUTIVE (1);
Jl:DICIARY (1). [Cases: States <:;:=:>,24.]
legisperitus (lee-jis-per-<l-t;:>s), n. [Law Latin] Hist. A
lawyer or advocate; one skilled in the law. Cf. )URIS
PERITUS.
legisprudence (Iee-jis-proo-ddnts). (1950) The systematic
analysis of statutes within the framework of jurispru
dential philosophies about the role and nature of law.
legist (lee-jist). 05c) 1. One learned or skilled in the law;
a lawyer. 2. JURIST. -Formerly also termed legister.
984 legitim
legitim. Scots law. The right of any surviving lawful
issue to share in the movable estate ofthe father. -The
legitim comprised third ofthe estate ifthere was a sur
viving spouse, or one-half otherwise. Also termed
the bairn's part. Cf. LEGITIME.
legitimacy. (17c) 1. Lawfulness. 2. The status ofa person
who is born within a lawful marriage or who acquires
that status by later action of the parents; legal kinship
between a child and its parent or parents. Cf. ILLEGITI
MACY. [Cases: Children Out-of-Wedlock
"In this age of equality, the question might fairly be asked
whether a discussion of child support should even be con
cerned about 'legitimacy' and 'illegitimacy.' The answer
is 'yes,' for several reasons. Most rules regarding child
support were fashioned at a time when legitimacy was the
precondition to full support entitlement and illegitimate
paternity had only limited legal consequences. True, by U.S.
Supreme Court doctrine, distinctions between 'legitimate'
and 'illegitimate' children should no longer be maintain
able, but many state statutes have not yet been adapted to
this view. Distinctions on the basis of legitimacy, however
unconstitutional, continue to be made." Harry D. Krause,
Child Support in AmericCl103 (1981).
legitimacy presumption. See PRESUMPTION OF PATER
NITY.
legitima gubernatio (lCl-jit-;}-m;} g[y]oo-bClr-nay
shee-oh). lLatin "lawful government"] See RECTA
GUBERNATIO.
legitim a potestas (lCl-jit-a-mCl p;}-tes-t;}s or -tas). [Latin]
Scots law. The lawful power, esp. to dispose of one's
property. Cf. LIEGE POUSTIE.
legitima remedia (b-jit-Cl-m;} ri-mee-dee-;}). [Law Latin]
Scots law. Lawful remedies.
Jegitima successio (la-jit-;}-mCl s;}k-ses-ee-oh). [Latin]
Scots law. Legal succession.
legitimate (IC1-jit-d-mdt), adj. (15c) 1. Complying with the
law; lawful <a legitimate business>. 2. Genuine; valid
<a legitimate complaint>. 3. Born of legally married
parents <a legitimate child>. [Cases; Children Out-of
Wedlock (;::: 1.]
legitimate child. See CHILD.
legitimate heir. See HEIR (1).
legitimate portion. See LEGITIME.
legitimation, n. (l6c) 1. The act ofmaking something
lawful; authorization. 2. The act or process ofauthori
tatively declaring a person legitimate, esp. a child whose
parentage has been unclear. [Cases: Children Out-of
Wedlock (;::;;-8.] 3. Rist. Proofofa person's identity and
oflegal permission to reside in a certain place or engage
in a certain occupation. Cf. ADOPTION. -legitimate
(l;}-jit-;}-mayt), vb.
legitimatio persubsequens matrimonium (la-jit-Cl-may
shee-oh sdb-see-kwenz ma-tr;}-moh-nee-;}m), n.
[Latin] legitimation ofa child born outside wedlock
by the later marriage ofthe parents.
legitime (lej-;}-tim), n. Civil law. The part of a testa
tor's property that his or her children (and occasion
ally other heirs) are legally entitled to regardless ofthe
will's terms. See La. Civ. Code art. 1494. -The legitime cannot be denied the children without legal cause. In
Roman law, the amount of the legitime was one-fourth
of the claimant's share on intestacy. Also spelled
(esp. in Scotland) legitim. -Also termed legal portion;
legitimate portion; Jorced portion. SeeJorced heir under
HEIR; (for Scots law) LEGITIM. Cf. PORTIO LEGITlMA.
lCases; Wills (;::;;-11.]
legitimi heredes (l;}-jit-;}-mI ha-ree-deez), n. pl. [Latin]
Roman law. Heirs on intestacy, as determined by
the Twelve Tables; specif., the Praetor's second rank
of claimants to an intestate's estate, comprising the
agnates of the Twelve Tables order and some others,
such as the decedent's patron. See TWELVE TABLES.
legitimo modo (la-jit-a-m;} moh-doh). [Latin] Scots law.
In legal form.
legitimum tempus restitution;s (hHit-;)-mClm tem-p;}s
res-ti-t[y]oo-shee-oh-nis). [Law Latin "the legal period
for restitution"] Rist. The time during which a claim
can be made for restitution.
legitimus (l;}-jit-;}-m;}s), adj. [Latin] Roman law. (Of a
person) legitimate; lawful.
legit vel non (lee-jit vel non). [Latin] Eccles. law. Does he
read or not. -This was the formal question propounded
by a secular comt to an ordinary (an ecclesiastical
official) when an accused person claimed exemption
from the court's jurisdiction by benefit ofclergy. Ifthe
ordinary found that the accused was entitled to exemp
tion, he responded" legit ut clericus," Of, "he reads like
a clerk." See BENEFIT OF CLERGY.
lego (Iee-goh), vb. [Latin] Roman law. I bequeath. This
was a common term for designating a legacy in a will.
legocentrism. See LEGAL CENTRALISM.
lego-literary (lee-goh-lit-;}r-er-ee), adj. Rare. Of or
relating to law and literature. See LAW AND LITERA
TURE.
legruita. See LAIRWITE.
leguleian (leg-y;}-lee-dn), n. Rare. A pettifogging
lawyer. -Also termed leguleius (leg-yoo-Iee-;:;s).
leguleian, adj.
LEIN. abbr. LAW ENFORCEMENT INFORMATION
NETWORK.
leipa (h-p;}), n. [Law Latin] Rist. A runaway or fugitive.
leirwita. See LAIRWITE.
Leistungsschutzrecht. [German] NEIGHBORING RIGHT.
lemon law. (18c) 1. A statute deSigned to protect a
consumer who buys a substandard automobile, usu.
by requiring the manufacturer or dealer either to
replace the vehicle or to refund the full purchase price.
-Almost all states have lemon laws in effect. Also
termed lemon protection. [Cases; Antitrust and Trade
Regulation (;::;;-206.]2. By extension, a statute deSigned
to protect a consumer who buys any product ofinferior
quality. Also termed (in sense 2) quality-oj-products
legislation.
Lemon test. (1971) A legal standard for judging the
state's violation ofthe Establishment Clause ofthe First
985
Amendment. 1he Lemon test has most often been
used in school-related cases. Itemploys a three-pronged
test to determine the state's action: (1) Does the state's
action have a religious purpose? (2) Does the state's
action have the primary effect of either promoting or
inhibiting religion? (3) Does the state's action create an
"excessive entanglement" between church and state?
Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105 (1971).
In recent years, the Court has not overturned Lemon
but has declined to apply it when deciding Establish
ment Clause cases.
Ie mort saisit Ie vi!doctrine (l;,) mor se-zee ld veef). |
use cases.
Ie mort saisit Ie vi!doctrine (l;,) mor se-zee ld veef).
[French "the dead seizes the living") The principle
requiring that there be no gap in the posseSSion of a
freehold estate in land, so that legal title vests immedi
ately in the heirs upon the death of the person through
whom they claim title . The doctrine does not exclude
unknown heirs or heirs absent at the date ofdeath.
lend, vb. (bef. 12c) 1. To aHow the temporary use of
(something), sometimes in exchange for compensa
tion, on condition that the thing or its equivalent be
returned. 2. To provide (money) temporarily on condi
tion ofrepayment, usu. with interest. (Cases: Contracts
194.)
lender. A person or entity from which something (esp.
money) is borrowed.
lending right. Copyright. The power of a copyright
owner to control the use ofcopies of the work beyond
the first sale, when that use involves offering the copy
to the public for temporary use with no consideration
required. Lending rights are recognized among
members of the European Union. [Cases: Copyrights
and Intellectual Property~~38.5.)
lend-lease. (1941) A mutually beneficial exchange made
between friendly parties; esp., an arrangement made in
1941, under the Lend-Lease Act, whereby U.S. destroy
ers were lent to Great Britain in exchange for Britain's
leasing ofland to the United States for military bases.
Also termed lease-lend.
lenient, adj. Tolerant; mild; merciful <lenient
sentence>.
lenient test. (1996) The principle that the attorney-client
privilege applicable to a document or other communi
cation will be waived only by a knowing or intentional
disclosure, and will not usu. be waived by an inadver
tent disclosure. Cf. strict test; Rydraflow test. [Cases:
Privileged Communications and Confidentiality
168.]
lenity (len-<l-tee). (16c) lne quality or condition ofbeing
lenient; mercy or clemency. See RULE OF LENITY.
lenity rule. See RULE OF LENITY.
lenocinium (lee-noh-sin-ee-;,)m), n. [Latin "pandering,
brothel-keeping"] 1. Roman law. The crime of pros
tituting for gain. 2. Roman & Scots law. A husband's
scheming in his wife's adultery, as by encouraging
another man to seduce her. The wife could assert lesion
this claim as a defense in a divorce action brought by
the husband.
leodes (lee-oh-deez), n. [Law Latin] Hist. l. A vassal. 2.
Service to be provided to another. 3. Compensation to
be paid by one who killed or seriously injured a vassal,
divided among the sovereign, the vassal's lord, and the
vassal's next ofkin; WERGILD.
leonina societas (lee-<l-nI-n<l S;,)-sI-;,)-tas). See SOCIETAS
LEONINA.
leonine contract (lee-<l-nrn). See adhesion contract
under CONTRACT.
leproso amovendo (lep-roh-soh ay-moh-ven-doh), n.
[Latin "for removing a leper"J Rist. A writ to remove
a leper who participated in public gatherings, such as
church or meetings.
Ie roy (br wah or 1;') roy), n. [Law Frenchl1he king.
Also spelled Ie roi.
Ie roy Ie veut (I;,)f wah l<l voo). [Law French] Hist. The king
(or the queen) wills it. This is the form of the king's or
queen's approval to a public bill passed by Parliament.
For a queen, the sentence is la reine Ie veut.
"If the king consents to a public bill, the clerk usually
declares, 'Ie roy Ie veut, the king wills it so to be:' if to
a private bill, 'soit fait comme if est desire, be it as it is
desired.' If the king refuses his assent, it is in the gentle
language of 'ie roy s'avisera, the king will advise upon it.'"
I William Blackstone, Commentaries on the Laws ofEngiand
184 (l765).
Ie roy remercie ses loyal sujets, accepte leur benevolence,
et ainsi Ie veut (1;,)[ wah rUll-mair-see say lWI-abl soo
zhay, ak-sept luu[r) bay-nay-voh-Iawns, ay an-see I;')
vuu). [Law French) Hist. The king thanks his loyal
subjects, accepts their benevolence, and therefore wills
it to be so . This is a form of the royal assent to a bill
ofsupply, authorizing money for public purposes. For
a queen, the sentence was la reine remerde ses loyal
sujets . ...
Ie roy s'avisera (l<lf wah sa-veez-rah). [Law French] The
king will advise upon it . 'This is a form of the refusal
of royal assent to a public bill in Parliament (not exer
cised since 1713). It corresponds to the judicial phrase
curia advisari vult. For a queen, the sentence was la
reine s'avisera. See CURIA ADVISARI VULT.
lese majesty (leez maj-<ls-tee). [Law French "injured
majesty") (l6c) 1. A crime against the state, esp. against
the ruler. -Also termed laesa majestas; crimen laesae
majestatis; crimen majestatis. See crimen majestatis
under CRIMEN; high treason under TREASON. 2. An
attack on a custom or traditional belief. -Also spelled
lese-majeste; lese majesty; leze majesty.
Iesio enormis. See LAESIO ENORMIS.
lesion (Iee-zh<ln). (l5c) L An injury or wOllnd; esp., an
area ofwounded tissue. 2. Civil law. Loss from another's
failure to perform a contract; the injury suffered by one
who did not receive the equivalent value of what was
bargained for. La. Civ. Code art. 2589. -Also spelled
(in sense 2) lesion. [Cases: Vendor and Purchaser C=:>
89.J 3. See LAESIO ENORMIS.
986 lesion beyond moiety
''The concept of lesion, unknown as such to the common
law, may be defined as a detriment to one of the parties
to a contract which results from an imbalance or dispar
ity between the performance promised on the two sides.
Down through the ages, civilians have differed over
whether it gave the injured party a right of avoidance or
rescission. Classical Roman law, designed for a society
whose members were strong enough to protect their
own interests, denied the right, but by the time of the
French Revolution the right had come to be recognized,
particularly by the canonists and Pothier. But the Revolu
tion, both because of its emphasis on individual will and
because of economic reasons, was hostile to the concept of
lesion and the Civil Code provided that it did not affect the
validity of a contract except in certain prescribed instances,
most notably the case of the vendor of real property. The
number of exceptions was enlarged both by subsequent
legislation and, at least indirectly, by judicial decision, and
this raised a question of the reversal of the general prin
ciple that rejected the concept." Allan Farnsworth, "The
Development of the Civil Law of Obligations in New States:
Senegal, Madagascar, and Ethiopia," in Essays on the Civil
Law of Obligations 64 Uoseph Dainow ed., 1969).
lesion beyond moiety. See LAESIO ENORMIS.
less-developed country. See DEVELOPING COUNTRY.
lessee (Ie-see). (lSc) One who has a possessory interest in
real or personal property under a lease; TENANT. [Cases:
Bailment ~1; Landlord and Tenant ~1.]
lessee in the ordinary course ofbusiness. A person
that, in good faith and without knowledge that the
lease is in violation ofa third party's ownership rights,
security interest, or leasehold interest, leases in the
ordinary course from a person in the business of
selling or leasing goods ofthat kind. UCC 2A-102(a)
(26). The UCC specifically excludes pawnbrokers
from the definition.
merchant lessee. A lessee who is a merchant of goods
similar to those being leased. UCC 2A-102(a)(3l).
lessee's interest. The appraised value ofleased property
from the lessee's perspective for purposes of assign
ment or sale . The value is usu. the property's market
value minus the lessor's interest. Cf. LESSOR'S INTEREST.
[Cases: Landlord and Tenant ~74.]
lesser-evils defense. See DEFENSE (1).
lesser included offense. See OFFENSE (1).
lesser-interest clause. Oil & gas. A provision in an oil-
and-gas lease allowing the lessee to reduce payments
proportionately ifthe lessor turns out to own less than
100% of the mineral interest. -Also termed propor
tionate-reduction clause. [Cases: Mines and Minerals
~79.3.]
lesser offense. See lesser included offense under OFFENSE
(1).
less-lethal, n. Jargon. A weapon that inflicts pain or dis
comfort short ofdeath, as by firing bean bags or rubber
bullets, or by discharging electromagnetic, acoustic, or
other energy so that the target may be incapacitated but
usu. not seriously injured. -Also termed less-lethal
force; nonlethal weapon; nondeadly weapon.
less-lethal force. See LESS-LETHAL. lessor (les-or or le-sor). (14c) One who conveys real or
personal property by lease; esp., LANDLORD. [Cases:
Landlord and Tenant ~1.]
lessor of the plaintiff. Hist. The true party in interest
prosecuting an action for ejectment . At common
law, an ejectment action theoretically was only for the
recovery of the unexpired term of the lease. Conven
tions ofpleadings at the time required the true plaintiff
to grant a fictitious lease, thereby becoming a lessor, to
an equally fictitious plaintiff in whose name the action
would be prosecuted.
lessor's interest. (1821) The present value of the
future income under a lease, plus the present value
of the property after the lease expires. Cf. LESSEE'S
INTEREST.
let, n. (l2c) An impediment or obstruction <free to act
without let or hindrance>.
let, vb. (bef. 12c) 1. To allow or permit <the court, refusing
to issue an injunction, let the nuisance continue>. 2.
To offer (property) for lease; to rent out <the hospital
let office space to several doctors>. [Cases: Landlord
and Tenant ~20.] 3. To award (a contract), esp. after
bids have been submitted <the federal agency let the
project to the lowest bidder>. [Cases: Public Contracts
~11.]
lethal, adj. (l6c) Deadly; fatal <a lethal drug>.
lethal injection. (1898) An injection of a deadly sub
stance into a prisoner in order to carry out a sentence
ofcapital punishment.
lethal weapon. See deadly weapon under WEAPON.
letter. (l3c) 1. A written communication that is usu.
enclosed in an envelope, sealed, stamped, and delivered
(esp., an official written communication) <an opinion
letter>. 2. (usu. pI.) A written instrument containing
or affirming a grant of some power or right <letters
testamentary>. [Cases: Executors and Administrators
~27.] 3. Strict or literal meaning <the letter of the
law>. This sense is based on the sense of a letter of
the alphabet. Cf. SPIRIT OF THE LAW.
letter-book. A merchant's book for holding correspon
dence.
letter contract. See CONTRACT.
letter missive. 1. Hist. A letter from the king (or queen)
to the dean and chapter ofa cathedral, containing the
name of the person whom the king wants elected as
bishop. 2. Hist. After a lawsuit is filed against a peer,
peeress, or lord of Parliament, a request sent to the
defendant to appear and answer the suit. 3. Civil law.
The appellate record sent by a lower court to a superior
court. -Also termed letter dimissory.
letter ofadvice. Commercial law. A notice that a draft has
been sent by the drawer to the drawee. UCC 3-701.
letter of advocation. Hist. Scots law. A warrant, issued
by the Court of Session, discharging an inferior court
from further proceedings in a matter and transferring
the action to the issuing superior court. In a criminal
case, the High Court of Justiciary could issue a letter
987
to call up a case for review from an inferior court. The i
letter ofadvocation was abolished in 1868 and replaced
by appeal.
letter ofattorney. 1. See POWER OF ATTORNEY (1).2. See
ATTORNEY (1).
letter of attornment. A grantor's letter to a tenant,
stating that the leased property has been sold and
directing the tenant to pay rent to the new owner. See
ATTORNMENT (1).
letter ofcomfort. See COMFORT LETTER.
letter ofcomment. See DEFICIENCY LETTER.
letter ofcommitment. See COMMITMENT LETTER.
letter ofcredence. Int'llaw. A document that accredits a
diplomat to the government ofthe country to which he
or she is sent. -Abbr. LC; LIe. -Also termed letters
ofcredence.
letter of credit. (17c) Commercial law. An instrument
under which the issuer (usu. a bank), at a customer's
request, agrees |
Commercial law. An instrument
under which the issuer (usu. a bank), at a customer's
request, agrees to honor a draft or other demand for
payment made by a third party (the beneficiary), as
long as the draft or demand complies with specified
conditions, and regardless of whether any underlying
agreement between the customer and the beneficiary
is satisfied . Letters of credit are governed by Article !
5ofthe VCe. Abbr. LC; Lie. Often shortened to
credit. -Also termed circular letter ofcredit; circular
note; bill of credit. [Cases: Banks and Banking (::::,
191.]
"There is some confusion over the exact nature of credits.
They resemble a number of commercial devices that are
not credits. Often, there is confusion between letters of
credit and guaranties, and occasionally between letters of
credit and lines of credit. In the credit transaction itself,
it is important to distinguish the credit from other con
tracts and from the acceptance. Generally, the broad credit
transaction consists of three separate relationships. These
include those that are (1) between the issuer and the ben
eficiary; (2) between the beneficiary and the account party.
and (3) between the account party and the issuer. The first
is the letter-of-credit engagement. The second is usually
called the underlying contract, and the third is called the
application agreement." John F. Dolan, The Law of Letters
of Credit ~ 2.01, at 2-2 (1984).
"A credit is an original undertaking by one party (the issuer)
to substitute his financial strength for that of another (the
account party), with that undertaking to be triggered by the
presentation of a draft or demand for payment and, often,
other documents. The credit arises in a number of situa
tions, but generally the account party seeks the strength of
the issuer's financial integrity or reputation so that a third
party (the beneficiary of the credit) will give value to the
account party." John F. Dolan, The Law of Letters ofCredit
,; 2.02, at 2-3 (1984).
"A seller heSitates to give up possession of its goods
before it is paid. But a buyer wishes to have control of the
goods before parting with its money. To relieve this simple
tension, merchants developed the device known as the
'letter of credit' or simply the 'credit' or the 'letter.' Today,
letters of credit come in two broad varieties. The 'com
merciaI' letter dates back at least 700 years. It is a mode of
payment in the purchase of goods, mostly in international
sales. The 'standby' letter of credit is a much more recent
mutant. It 'backs up' obligations in a myriad of settings.
In the most common standby a bank promises to pay a
creditor upon documentary certification of the applicant's letter of credit
default." 3 James J. White & Robert 5. Summers, Uniform
Commercial Code 26-1, at 105 (4th ed. 1995).
dean letter ofcredit. A letter of credit that is payable
on its presentation . No document needs to be pre
sented along with it. Also termed suicide letter of
credit. Cf. documentary letter ofcredit.
commercial letter ofcredit. A letter of credit used as
a method of payment in a sale of goods (esp. in an
international transaction), with the buyer being the
issuer's customer and the seller being the beneficiary,
so that the seller can obtain payment directly from the
issuer instead of from the buyer.
confirmed letter ofcredit. A letter ofcredit that directly
obligates a financing agency (such as a bank) doing
business in the seller's financial market to a contract
of sale. VCC 2-325(3).
documentary letter ofcredit. A letter of credit that is
payable when presented with another document, such
as a certificate of title or invoice. Abbr. DUe. Cf.
clean letter ofcredit.
export letter ofcredit. A commercial letter of credit
issued by a foreign bank, at a foreign buyer's request,
in favor of a domestic exporter.
general letter ofcredit. A letter of credit addressed to
any and all persons without naming anyone in par
ticular. Cf. special letter ofcredit.
guaranty letter ofcredit. See standby letter ofcredit.
import letter ofcredit. A commercial letter of credit
issued by a domestic bank, at an importer's request,
in favor of a foreign seller.
irrevocable letter ofcredit (i-rev-,)-k,)-b,))). 1. A letter
ofcredit that the issuing bank guarantees will not be
withdrawn or canceled before the expiration date. 2.
A letter of credit that cannot be modified or revoked
without the customer's consent. 3. A letter of credit
that cannot be modified or canceled without the
consent of all parties.
negotiation letter ofcredit. A letter of credit in which
the issuer's engagement runs to drawers and indorsers
under a standard negotiation clause.
"Letter-of-credit law has long distinguished the straight
credit from the negotiation credit. The engagement of
the former runs to the beneficiary; the engagement of the
latter runs to 'drawers, endorsers, and bona fide holders.'
This quoted phrase is the traditional negotiation clause.
The significance of it is that it obviously extends the credit
engagement to parties other than the person with whom
the account party is doing business." John F. Dolan, The
Law of Letters ofCredit ~ 8.02[6], at 8-11 (1984).
open letter ofcredit. A letter ofcredit that can be paid
on a simple draft without the need for documentary
title.
revocable letter ofcredit (rev-,)-kd-b,)l). A letter of
credit in which the issuing bank reserves the right
to cancel and withdraw from the transaction upon
appropriate notice . The letter cannot be revoked
if the credit has already been paid by a third party.
[Cases: Banks and Banking (::::' 191.10.]
988 letter of exchange
revolving letter ofcredit. A letter of credit that self
renews by providing for a continuing line of credit
that the beneficiary periodically draws on and the
bank customer periodically repays . A revolving
letter of credit is used when there will be multiple
drafts under a single transaction or multiple transac
tions under a single credit. -Abbr. RUe.
special letter ofcredit. A letter ofcredit addressed to a
particular individual, firm, or corporation. Cf. general
letter ofcredit.
standby letter ofcredit. A letter ofcredit used to guar
antee either a monetary or a nonmonetary obliga
tion (such as the performance ofconstruction work),
whereby the issuing bank agrees to pay the beneficiary
if the bank customer defaults on its obligation. -
Abbr. SUe. -Also termed guaranty letter ofcredit.
[Cases: Banks and Banking (;=J 191.10.]
straight letter ofcredit. A letter of credit requiring
that drafts drawn under it be presented to a speci
fied party.
suicide letter ofcredit. See clean letter ofcredit.
time letter ofcredit. A letter of credit that is duly
honored by the issuer accepting drafts drawn under
it. -Also termed acceptance credit; usance credit.
transferable letter ofcredit. A letter of credit that
authorizes the beneficiary to assign the right to draw
under it. [Cases: Banks and Banking (;=J 191.10.]
traveler's letter ofcredit. 1. A letter ofcredit addressed
to a correspondent bank, from which one can draw
credit by identifying oneself as the person in whose
favor the credit is drawn. 2. A letter ofcredit used by
a person traveling abroad, by which the issuing bank
authorizes payment offunds to the holder in the local
currency by a local bank. The holder signs a check
on the issuing bank, and the local bank forwards it
to the issuing bank for its credit.
letter of exchange. See DRAFT (1).
letter ofintent. (1942) A written statement detailing the
preliminary understanding ofparties who plan to enter
into a contract or some other agreement; a noncom
mittal writing preliminary to a contract. A letter of
intent is not meant to be binding and does not hinder
the parties from bargaining with a third party. Business
people typically mean not to be bound by a letter of
intent, and courts ordinarily do not enforce one; but
courts occasionally find that a commitment has been
made. -Abbr. LOL -Also termed memorandum of
intent; memorandum of understanding; term sheet;
commitment letter. Cf. precontract under CONTRACT.
[Cases: Contracts (;=J25.]
letter of license. English law. An agreement signed by
all the creditors ofa financially troubled business that
does the following: (1) grants the debtor more time to
pay debts, (2) permits the debtor to continue business
in the hope ofovercoming its financial distress, and (3)
protects the debtor from arrest, lawsuit, or other interference while the letter is in effect. See ARRANGEMENT
WITH CREDITORS.
letter of recall. 1. A document sent from one nation's
executive to that of another, summoning a minister
back to his or her own country. 2. A manufacturer's
letter to a buyer of a particular product, asking the
buyer to bring the product back to the dealer for repair
or replacement. -Also termed recall letter.
letter of recredentials (ree-kr<:l-den-sh<:llz). A formal
letter from a host country's diplomatic secretary ofstate
to a minister or ambassador who has been recalled by
his or her own country . The letter officially accredits
the foreign minister back to his or her home country.
letter of request. 1. A document issued by one court
to a foreign court, requesting that the foreign court
(1) take evidence from a specific person within the
foreign jurisdiction or serve process on an individual
or corporation within the foreign jurisdiction and (2)
return the testimony or proof of service for use in a
pending case. See Fed. R. Civ. P. 28. -Also termed
letter rogatory (rog-<:l-tor-ee); rogatory letter; requisitory
letter (ri-kwiz-<:l-tor-ee). Cf. COMMISSION TO EXAMINE
A WITNESS. [Cases: Federal Civil Procedure (;=J 1312.]
2. An instrument by which an inferior court withdraws
or waives jurisdiction so that a matter can be heard in
the court immediately above. Pl.letters ofrequest.
letter ofthe law. (17c) The strictly literal meaning ofthe
law, rather than the intention or policy behind it.
Also termed litera legis. Cf. SPIRIT OF THE LAW. [Cases:
Statutes (;=J 189.]
letter of undertaking. An agreement by which a ship
owner -to avoid having creditors seize the ship and
release it on bond -agrees to post security on the ship,
and to enter an appearance, acknowledge ownership,
and pay any final decree entered against the vessel
whether it is lost or not. A letter of undertaking is
often issued by the shipowner's liability insurer. [Cases:
Admiralty (;=J57.]
"Such informal or extra-legal agreements save court costs
and the marshal's fees, avoid the annoyance of having the
vessel even temporarily arrested and may well be cheaper
than the usual surety bond .... In Continental Grain Co. v.
Federal Barge Lines, Inc., [268 F.2d 240 (5th Cir. 1959), aff'd,
364 U.S. 19, 80 S.Ct. 1470 (1960)], Judge Brown commented
that a letter of undertaking given by a shipowner would be
treated 'as though, upon the libel being filed, the vessel
had actually been seized, a claim filed, a stipulation to
abide decrees with sureties executed and filed by claimant,
and the vessel formally released. Any other course would
imperil the desirable avoidance of needless cost, time and
inconvenience to litigants, counsel, ships, clerks, marshals,
keepers and court personnel through the ready acceptance
of such letters of undertakings.' [268 F.2d at 243]. If, as
Judge Brown suggests, the informal agreement is treated
as having the same effect as a formal release under bond
or stipulation, few questions relating to their use will ever
have to be litigated." Grant Gilmore & Charles L. BlackJr.,
The Law ofAdmiralty 9-89, at 80001 (2d ed. 1975).
letter rogatory. See LETTER OF REQUEST.
letter ruling. (1950) Tax. A written statement issued
by the IRS to an inquiring taxpayer, explaining the
tax implications of a particular transaction. -Also
989
termed private letter ruling. [Cases: Internal Revenue
(;:=::> 3049.]
letters. (16c) Wills & estates. A court order giving official
authority to a fiduciary to conduct appointed tasks. _
Examples are letters of administration, letters of con
servatorship, letters of guardianship, and letters testa
mentary. Unif. Probate Code 1-201(23). See LETTER
(2). [Cases: Executors and Administrators
Guardian and Ward C=>16.]
letters ad colligendum bona defuncti (ad kol-a-jen-d<lm
boh-n<l di-fungk-tI), n. [Law Latin] Hist. An authori
zation from a judicial officer to an approved person to
collect and maintain the goods of a person who died
intestate . These letters were issued only if no repre
sentative or creditor existed to exercise this function.
letters close. See LETTERS SECRET.
letter security. See restricted security under SECURITY.
letters of absolution. Hist. Letters issued by an abbot
releasing a member ofhis order from his vows of obedi
ence to that order, thus permitting entry into another
order.
letters of administration. (16c) A formal document
issued by a probate court to appoint the administrator
of an estate. Letters of administration originated in
the Probate ofTestaments Act of 1357 (31 Edw. 3, ch. 4),
which provided that in case of intestacy the ordinary
(a high-ranking ecclesiastical official within a terri
tory) should depute the |
case of intestacy the ordinary
(a high-ranking ecclesiastical official within a terri
tory) should depute the decedent's closest friends to
administer the estate; a later statute, the Executors Act
of 1529 (21 Hen. 8, ch. 4), authorized the ordinary to
grant administration to the surviving spouse, to next of
kin, or to both of them jointly. Also termed admin
istration letters. See ADMINISTRATION (4). Cf. LETTERS
TESTAMENTARY. [Cases: Executors and Administra
tors
letters ofadministration c.t.a. (1894) Letters ofadmin
istration appointing an administrator cum testamento
annexo (with the will annexed) either because the will
does not name an executor or because the named
executor does not qualify. See administration cum
testamento annexo under ADMINISTRATlO~.
letters of administration d.b.n. (1877) Letters of
administration appointing an administrator de
bonis non (concerning goods not yet administered)
because the named executor failed to complete the
estate's probate. See administration de bonis non
under ADMINISTRATION.
letters ofcredence. See LETTER OF CREDENCE.
letters of guardianship. (I8c) A court order appoint
ing a guardian to care for the well-being, property, and
affairs ofa minor or an incapacitated adult. -It defines
the scope of the guardian's rights and duties, includ
ing the extent ofcontrol over the ward's education and
medical issues. See GUARDIAN. [Cases: Guardian and
Ward 16.J
letters ofhorning. Hist. Scots law. An execution process
in which the creditor holding a decree obtained royal lettre de cachet
letters commanding the debtor to either perform or be
outlawed. See HORNING.
letters ofmarque (mahrk). A license authorizing a private
citizen to engage in reprisals against citizens or vessels
ofanother nation . Congress has the exclusive power
to grant letters ofmarque (U.S. Const. art. I, 8, d. II),
but it has done so only once since the 19th century.
Also termed letters ofmarque and reprisal.
"[FJormerly it was not uncommon for a state to issue
'letters of marque' to one of its own subjects, who had met
with a denial ofjustice in another state, authorizing him to
redress the wrong for himself by forcible action, such as
the seizure of the property of subjects of the delinquent
state." j.L. Brierly, The Law ofNations 321 (5th ed. 1955).
letters ofsafe conduct. Hist. Formal written permission
from the English sovereign to a citizen of a nation at
war with England, permitting that person to travel and
ship goods, to England or on the high seas, without
risk of seizure. _ Passports or licenses from foreign
ambassadors now may serve the same purpose. See
SAFE CONDUCT.
letters ofslains. Hist. Letters to the Crown from the rela
tives of a slain person concurring with the offender's
application for a royal pardon . A pardon could not
be granted without the family's concurrence. -Also
spelled letters ofslanes.
letters patent. (15c) 1. Hist. A document granting some
right or privilege, issued under governmental seal
but open to public inspection. Also termed Ii/erne
patentes (lit-<lr-ee pJ-ten-teez). Cf. LETTERS SECRET. 2.
A governmental grant of the exclusive right to use an
invention or deSign. -Also termed (in both senses)
patent deed. See PATENT (2). [Cases: Patents
letters rogatory. See LETTER OF REQUEST.
letters secret. Hist. A governmental document that
is issued to a private person, closed and sealed, and
thus not made available for public inspection. -Also
termed letters close. Cf. LETTERS PATENT (1).
letters testamentary. (17c) A probate-court order approv
ing the appointment ofan executor under a will and
authorizing the executor to administer the estate. Cf.
LETTERS OF ADMINISTRATION. [Cases: Executors and
Administrators 32.]
ancillary letters testamentary. Letters testamentary
issued at a place where the testator owned property
but did not have a domicile . The executor or admin
istrator is not authorized to act outside the issuing
court's territorial jurisdiction. [Cases: Executors and
Administrators (;:=::>518.]
domiciliary letters testamentary. Letters testamentary
issued at the place where the testator was domiciled.
letter stock. See restricted security under SECURITY.
lettre (le-tr<l), n. [French "letter"] Hist. A formal instru
ment granting some authority.
lettre de cachet (le-trJ d" ka-shay). [French "letter with
a seal"] A royal warrant issued for the imprisonment
of a person without trial.
990 /euca
leuca (loo-b), n. [Law Latin] Hist. 1. French law. A
league, consisting of 1,500 paces. 2. A league, consist
ing of 1,000 paces. 3. A privileged space of one mile
around a monastery.
levance and couchance (lev-.mts / kow-chants). Hist. The
state or condition of being levant and couchant. See
LEVANT AND COUCHANT.
levandae navis causa (la-van-dee nay-vis kaw-za), n.
[Latin "for the sake of lightening the ship"] Maritime
law. The practice of throwing goods overboard to
avoid total loss, entitling the owner to compensation
from other participants in the maritime venture. See
JETTISON; general average under AVERAGE.
levant and couchant (lev-ant / kow-chant), adj. [Law
Fr~nch couchant et levant "lying down and rising up"]
Hlst. (Of cattle and other beasts) trespassing on land
for a period long enough to have lain down to rest and
risen to feed (usu. at least one night and one day).
This period was the minimum required as grounds for
distraint. -Also termed couchant and levant.
levari facias (La-vair-I fay-shee-as). [Law Latin "that
you cause to be levied"] A writ ofexecution ordering a
sheriff to seize a judgment debtor's goods and income
from lands until the judgment debt is satisfied. This
writ is now used chiefly in Delaware. Cf. FIERI FACIAS.
Execution C='15.]
levarifadas damna de disseisitoribus (la-vair-I fay
shee-as dam-n.. dee dis-see-za-tor-a-bas), n. [Law
Latin "that you cause to be levied the damages from
the disseisors"] Hist. A writ directing the sheriff to
levy property to pay damages owed to one wrongfully
dispossessed ofa freehold estate. See DISSEISIN.
levari facias quando vicecomes returnavit quod non
habuit emptores (l,,-vair-I fay-shee-as kwon-doh VI
~ee-koh-meez ree-t"r-nay-vit kwod non hay-byoo
It emp-tor-eez), n. [Law Latin "that you cause to be
levied when the sheriff has returned that it had no
buyers"] Hist. A writ directing a sheriff, who had
already seized some of the debtor's property and
found it unsalable, to sell as much additional property
as necessary to pay the entire debt.
levari facias residuum debiti (la-vair-I fay-shee-as
ri-zij-oo-am deb-a-tr), n. [Law Latin "that you cause
to be levied the rest ofthe debt"] Hist. A writ directing
the sheriff to levy upon a debtor's lands or goods to
pay the remainder ofa partially satisfied debt.
leva to velo (l..-vay-toh vee-loh). [Latin "with the curtain
raised"] Roman law. The principle, applied to cases of
wreck and salvage, and later to all maritime matters,
that cases should be heard in public. Although com
;nentators about the origin ofthe expression,
It probably refers to ace where causes were heard.
A sail was spread b the door, and when the cases
were heard, the sail was raised, allowing the proceed
mgs to be open to the public.
levee (lev-ee), n. (17c) 1. An embankment constructed
alon~ the edge of a river to prevent flooding. 2. A
landmg place on a body of navigable water for loading and unloading goods or receiving and delivering pas
sengers and boats.
levee district. See DISTRICT.
levee en masse. See LEVY EN MASSE.
level of abstraction. Copyright. The degree to which a
work describes an idea or process in a general rather
than concrete way . Judge Learned Hand posited that
from any work one can restate the idea in more and
more abstract ways, omitting more and more details,
until one is left with an uncopyrightable idea rather
than a protectable work of Originality. See Nichols v.
Universal Pictures Corp., 45 P.2d 119 (1930). [Cases:
Copyrights and Intellectual Property (;::>4.5.]
level-premium insurance. See INSURANCE.
level-rate legal-reserve policy. See INSURANCE POLICY.
leverage, n. (1830) 1. Positional advantage; effectiveness.
2. The use ofcredit or borrowed funds (such as buying
on margin) to improve one's speculative ability and to
increase an investment's rate of return. 3. The advan
tage obtained from using credit or borrowed funds
rather than equity capital. 4. The ratio between a cor
poration's debt and its equity capital. -Also termed
leverage ratio. 5. The effect of this ratio on common
stock prices.
leverage, vb. (1957) 1. To provide (a borrower or investor)
with credit or funds to improve speculative ability and
to seek a high rate of return. 2. To supplement (avail
able capital) with credit or outside funds. 3. To fund
(a company) with debt as well as shareholder equity.
4. Antitrust. To use power in one market to gain an
unfair advantage in another market. 5. Insurance. To
manipulate two coverages, as by an insurer's withhold
ing settlement ofone claim to influence a claim arising
under another source ofcoverage.
leverage contract. (1975) An agreement for the purchase
or sale ofa contract for the future delivery ofa specified
commodity, usu. silver, gold, or another precious metal,
in a standard unit and quantity, for a particular price,
with no right to a particular lot ofthe commodity . A
leverage contract operates mucb like a futures contract,
except that there is no deSignated contract market for
leverage contracts. The market sets the uniform terms
of a futures contract. But in a leverage contract, the
individual merchant sets the terms, does not guaran
tee a repurchase market, and does not guarantee to
continue serving or acting as the broker for the pur
chaser. Leverage contracts are generally forbidden for
agricultural commodities. 7 USCA 23(a). Cf. FUTURES
CONTRACT. [Cases: Commodity Futures Trading Regu
lation (;::> 10.]
leveraged buyout. See BUYOUT.
leveraged lease. See LEASE.
leveraged recapitalization. See RECAPITALIZATION.
leverage fund. See dual fund under MUTUAL FUND.
leverage ratio. See LEVERAGE (4).
991 lex AquiJia
leveraging up. See leveraged recapitalization under
RECAPITALIZATION.
leviable (lev-ee-"-b,,l), adj. 1. Able to be levied; assess
able <the fine is leviable on each offense>. 2. Able to
be levied upon; seizable in execution of a judgment
<leviable goods>. [Cases: Execution C=>20-58.]
leviora delicta (lev-ee-or-;} d;}-lik-ta). [Latin "the less
serious delicts"] Scots law. Lesser crimes (such as breach
of the peace) that can be summarily tried.
levir (lee-v"r), n. [Latin] Roman law. 1. A husband's
brother. 2. A wife's brother-in-law.
levis (lee-vis), adj. [Latin] Hist. Light; trifling.
levis culpa. See CULPA.
levis nota (lee-vis noh-t<l), n. [Latin] Hist. Slight mark
or brand.
levissima culpa. See CULPA.
Levitical degrees. See prohibited degree under DEGREE.
levy (lev-ee), n. (l3c) 1. The imposition of a fine or tax;
the fine or tax so imposed. -Also termed tax levy.
[Cases: Taxation ~'2411.]2. The enlistment of soldiers
into the military; the soldiers so enlisted. 3. The legally
sanctioned seizure and sale of property; the money
obtained from such a sale. Also termed (in sense 3)
levy ofexecution. [Cases: Execution C=> 122-147.]
wrongful levy. (18c) A levy on a third party's property
that is not subject to a writ of execution. [Cases: Exe
cution (::::'459.]
levy, vb. (l4c) 1. To impose or assess (a fme or a tax) by
legal authority <levy a tax on gasoline>. 2. To enlist for
service in the military <the troops were quickly levied>.
3. To declare or wage (a war) <the rival clans levied
war against each other>. 4. To take or seize property in
execution of a judgment <the judgment creditor may
levy on the debtor's assets>. [Cases: Execution C=>
122-147.]
levy court. See COURT.
levy en masse. A large conscription or mobilization of
troops, esp. in response to a threatened invasion.
Also spelled |
en masse. A large conscription or mobilization of
troops, esp. in response to a threatened invasion.
Also spelled levee en masse; levy in mass.
levy of execution. See LEVY (3).
lewd, adj. (l4c) Obscene or indecent; tending to moral
impurity or wantonness <lewd behavior>.
lewd and lascivious cohabitation. See illicit cohabitation
under COHABITATION.
lewd house. See DISORDERLY HOUSE (2).
lewdness. (l6c) Gross, wanton, and public indecency that
is outlawed by many state statutes; a sexual act that
the actor knows will likely be observed by someone
who will be affronted or alarmed by it. See Model
Penal Code 251.1. -Also termed open lewdness. Cf.
INDECENT EXPOSURE; OBSCENITY. [Cases: Lewdness
1; Obscenity C=> 1.1.]
lex (leks), n. [Latin "law"] 1. Law, esp. statutory law.
2. Positive law, as opposed to natural law. _ Strictly
speaking, lex is a statute, whereas jus is law in general (as well as a right). 3. A system or body oflaws, written
or unwritten, that are peculiar to a jurisdiction or to
a field of human activity. 4. A collection of uncodi
fied laws within a jurisdiction. 5. LEX PUBLICA. 6. LEX
PRIVATA. 7. Civil law. A legislative bill. PI. leges (lee
jeez). Ct: JUS. 8. The acquisition ofproperty under some
specific law, when the property is made over by a mag
istrate to the claimant. 9. A term of a contract, treaty,
or other agreement.
lex actus (leks ak-t;:ls). See LEX LOCI ACTUS.
lex Aebutia (leks i-byoo-shee-;:l). [Latin] Roman law. A
statute that introduced simplified forms of pleading
and procedure. _ This was probably enacted in the later
part ofthe second century B.C. See lex Julia judiciorum
publicorum under LEX JULIA.
lex Aelia Sentia (leks ee-lee-;:l sen-tee-;:l). Roman law. A
law that set minimum age requirements for an owner
and a slave in a valid manumission, voided manum is
sions made to defraud creditors, and created the status
ofdediticii for some manumitted slaves, esp. criminals.
See DEDITICII; LATINI JUNIANI.
lex aeterna (leks ee-lar-n;:l). [Latin] Eternal law. See
NATURAL LAW (1).
lex Anastasiana (leks an-<l-stay-shee-ay-n;:l). [Latin]
Roman law. 1. A law establishing that emancipated
brothers and sisters receive an intestate inheritance
equal to those not emancipated. See AGNATI. 2. A law
providing that a person purchasing a debt from the
original creditor for less than its nominal value was
not entitled to recover from the debtor more than the
amount paid with lawful interest.
lex Angliae (leks ang-glee-ee), n. [Latin] Hist. The law of
England; the common law.
lex annua. See edictum perpetuum under EDICTUM.
lex apparens (leks ;:l-par-enz), n. [Law Latin "apparent
law") Hist.The legal processes of trial by ordeal or
wager of battle. _ The plaintiff could not summon the
defendant for trial by these processes before establish
ing a clear or apparent right through testimony. See
ORDEAL.
lex Apuleia (leks ap-y;:l-lee-;:l). [Latin] Roman law. A
law giving a coguarantor, who had paid more than
the proper share of debt, an action of reimbursement
against the remaining guarantors. Also spelled lex
Appuleia.
lex Aquilia (leks <l-kwil-ee-<l). [Latin "Aquilian law"]
Roman law. A Roman statute imposing liability for
pecuniary loss tortiously caused and generally regu
lating loss caused by damage to property, including
compensation to be paid for injury to another's slave
or livestock. - A loss had to be financially measurable
and caused wrongfully. Ifthe liable party denied liabil
ity, then damages were doubled. This law applied to
negligence as well as dolus. The law, enacted around
287 B.C., superseded the earlier provisions of the Twelve
Tables. Also termed Aquilian law. See DAMNUM
992 lex Atilia
I:-.!1URIA DAT[;M; DOLUS. See actio legis Aquiliae under
ACTIO.
lex Atilia (leks d-til-ee-d). [Latin] Roman law. A law
granting to magistrates the right to appoint guardians.
The law is named after the person who proposed it,
perhaps the tribune L. Atilius Regulus. It was enacted
about 210 B.C. Also termed Atilian law.
lex Atinia (leks Cl-tin-ee-Cl). [Latin] Roman law. A law
declaring that a prescriptive right cannot be acquired
in stolen property. It was enacted in the late third or
early second century B.C. Also termed Atinian law.
lex Baiuvariorum (leks baY-d-vair-ee-or-Clm). [Latin]
Hist. The law of Bavaria, a barbarian nation in the
Early Middle Ages, first collected (together with the
law of the Franks and Alemanni) by Theodoric (ca.
454-526), and finally completed and promulgated by
Dagobert (ca. 612-639). Also termed lex Baioriorum;
lex Boiorum.
lex barbara (leks bahr-bd-rd). [Latin] Roman law. The
law ofbarbarian nations, i.e., those that were not subject
to the Roman Empire.
lex Boiorum. See LEX BAIUVARIORUM.
lex Brehonia (leks bri-hoh-nee-d), n. [Law Latin] Hist.
The Brehon or Irish law.
lex Bretoisa (leks bre-toy-sd), n. [Latin] Hist. The law of
ancient Britons; the law of Marches of Wales.
lex Burgundionum (leks bdr-g;m-dee-oh-ndm), n. [Law
LatinJ Hist. The law ofthe Burgundians, first published
about A.D. 495.
lex Calpurnia (leks kal-par-nee-d). [Latin] Roman law.
A law extending the lex Silia by establishing procedures
to recover goods other than money. This affected the
actiones legiS. See LEX SILlA; LEGIS ACTIO.
lex Canuleia (leks kan-yoo-Iee-d). [Latin] Roman law.
A law of445 B.C. granting plebeians the right to marry
patricians.
lex causae (leks kaw-zee). [Latin] The legal system that
governs a dispute.
lex centuriata (Iee-jeez sen-tyoor-ee-ay-tee). [Latin]
Roman law. A law passed in the comitia centuriata.
PI. leges centuriatae. See comitia centuriata under
COMITIA.
lex Cincia (leks sin-shee-a). [Latin] Roman law. A law of
204 B.C. prohibiting certain types of gifts and all gifts
or donations of property beyond a certain measure,
except to a near relative.
lex Claudia (leks klaw-dee-<l). [Latin] Roman law. A
law that abolished the ancient guardianship of adult
women by their male agnate relatives. -This became
effective in the first century A.D. Also termed lex
Claudia de tutela.
lex comitatus (leks kom-<l-tay-t<ls), n. [Law Latin] Hist.
The law of the county; the law administered in the
county court before the earl and his deputies.
lex commercii (leks b-mar-shee-I), n. [Latin] The law of
business or commerce; commercial law. -Also termed lex commissoria (leks kom-<l-sor-ee-a). See LEX COM
MISSORIA.
lex commissoria (leks kom-i-sor-ee-a). [Latin "forfeiture
clause" or "cancellation clause"] Roman law. 1. A term
in a contract of sale allowing the seller to rescind the
sale if the price was not paid by the agreed time. 2. A
clause by which, in a pledge agreement, a debtor and
creditor could agree that if the debtor fails to timely
pay the debt, the creditor obtains absolute title of the
pledged property.
"By the lex commissoria at Rome, the debtor and creditor
might agree that if the debtor did not pay at the day,
the pledge should become the absolute property of the
creditor. But a law of Constantine abolished this power, as
unjust and oppressive, and having a growing asperity in
practice." 2 James Kent, Commentaries on American Law
*583 (George Comstock ed., 11th ed. 1866).
3. An agreement in which such a failure-to-timely-pay
clause appears. -Also written commissoria lex. 3. LEX
COMMERCII.
"But the position of the seller was a good deal more
awkward, especially if he had sold a unique object, such
as a piece of land, for, apart from express agreement,
he would have to retain the land or other object in case
the buyer later came along with the price and demanded
delivery. The difficulty could be avoided by the insertion of
a term known as lex commissoria, which gave the seller an
option of declaring the contract at an end if the buyer did
not pay within the agreed time. This term probably became
common form in Roman law, but was never implied. It
always had to be expressly inserted in the contract ....
Not until the time of Lord Mansfield was a similar develop
ment complete in English law, though in the end we carried
it much further than the Romans." W.w. Buckland & Arnold
D. McNair, Roman Law & Common Law: A Comparison in
Outline 231 (F.H. Lawson ed., 2d ed. 1952).
lex communis (leks b-myoo-nis), n. [Latin] The
common law. See JUS COMMUNE.
lex contractus (leks k<3n-trak-tds). See LEX LOCI CON
TRACTUS.
lex Cornelia (leks kor-nee-Iee-a or kor-neel-ya). [Latin]
Roman law. One ofseveral laws passed by the dictator
L. Cornelius Sulla in 82-81 B.C. -Also termed Car
nelian law.
lex Cornelia de edictis (leks kor-nee-lee-<l dee ee-dik
tClS). See lex Cornelia de jurisdictione.
lex Cornelia de falsis (leks kor-nee-Iee-<3 dee fal-soh
or fawl-sis). [Latin] Roman law. See lex cornelia
nummaria testamentaria.
lex Cornelia de injuriis (leks kor-nee-lee-<l dee in
joor-ee-is). [Latin] Roman law. The Cornelian law
providing a civil action for the recovery ofa penalty in
certain cases ofbodily injury and violent invasion of
property. The precise boundary between the crime
and the delict is not clear. But the two procedures
probably existed side by side.
"Lex Cornelia de iniuriis .... Punished three kinds of
injury committed by violence: pu/sare (beating), verber
aYe (striking, causing pains) and domum introire (forcible
invasion of another's domicile)." Adolf Berger, Encyclopedic
Dictionary of Roman Law 549 (1953).
993 lex generalis
lex Cornelia de jurisdictione (leks kor-nee-lee-;l dee
ioor-is-dik-shee-oh-nee). [Latin] Roman law. The law
forbidding a praetor from departing, during his term
of office, from the edict he had promulgated at the
term's commencement. It did not, however, forbid
the offer ofnew remedies. -Also termed lex Cornelia
de edictis.
lex Cornelia de sicariis et veneficis (leks kor-nee-Iee-;l
dee si-kair-ee-is et v;l-nee-f;l-sis). [Latin] Roman law.
A law combining jurisdiction over gangster-type
killings and poisoning, or attempts at such crimes,
and addressing the bringing of false witness and
bribery of a judge or juror, if those actions brought
about a person's death. The statute was soon
extended to cover murder generally when commit
ted within or close to Rome. Emperor Antoninus Pius
added a provision for murder to include a slave owner
who deliberately killed his own slave.
lex Cornelia de sponsu (leks kor-nee-Jee-a dee
spon-s[y]oo). [Latin] Roman law. A law prohibiting
a person from acting as surety for the same debtor to
the same creditor in the same year for more than a
specified amount.
lex Cornelia nummaria testamentaria (leks kor-nee
lee-;l n;l-mair-ee-<1 tes-t<l-men-tair-ee-;l). Roman
law. A statute making forgery (jalsum) a crime,
and creating a special court to try forgery cases .
Until the later Roman Empire,Jalsum included both
coining and document forgery. Also termed lex
Cornelia de falsis (leks kor-nee-Iee-;l dee fal-soh or
fawl-sis). See FALSUM (2).
"It is not absolutely clear whether Sulla passed two laws,
one on forging wills and the other on forging money, or
whether the one lex Cornelia nummaria testamentaria
provided for both sorts of offence to be heard by the
quaestio de (alsis which it created." O. t. Professor Robinson,
The Criminal Law ofAncient Rome 36 (1995).
lex curiata (lex kyoor-ee-ay-t;l). |
Ancient Rome 36 (1995).
lex curiata (lex kyoor-ee-ay-t;l). (Latin] Roman law.
Laws passed in the comitia curiata. PL leges curiatae
(lee-jeez kyoor-ee-ay-tee). See comitia curiata under
COMITIA.
lex Danorum (leks dan-or-;lm). See DANELAW.
lex delicti (leks d;l-lik-tr). See LEX LOCI DELICTI.
lex deraisnia (leks d;l-rayn-ee-<:l), n. [Law Latin] Hist. A
law by which a party denies an accusation, showing it
to be against reason or probability.
lex de responsis prudentium (leks dee ri-spon-sis proo
den-shee-;lm). [Latin "law on the replies of the juris
prudents"] See CITATIONS, LAW OF.
lex domicilii (leks dom-;l-sil-ee-r). [Latin] (18c) 1. The
law of the country where a person is domiciled. 2.
The determination of a person's rights by establishing
where, in law, that person is domiciled. See Restatement
(Second) ofConflict of Laws 11 et seq. (1971).
Lex Duodecim Tahularum (leks d[y]oo-<I-des-;lm tab-
y;l-lair-;lm). See TWELVE TABLES. lex et consuetudo parliamenti (leks et kon-Sw;l-t[y]
oo-doh parl-[y];l-men-tI), n. [Latin] Hist. The law and
custom (or usage) of Parliament.
lex et consuetudo regni (leks et kon-sw;l-t[y]oo-do
reg-nr), n. [Latin] Hist. The law and custom of the
realm; the common law.
lex Fabia de plagiariis (leks fay-bee-a dee plaj-ee-air
ee-;ls), n. [Latin] Hist. A law directed against kidnap
ping and harboring ofslaves.
lex Falcidia (leks fal-sid-ee-;l). See FALClDIAN LAW.
lex feud; (leks fyoo-dl). [Law Latin] Scots law. The law of
the feu; the law pertaining to feudal title.
lex fori (leks for-I). [Latin] (1803) 'The law of the forum;
the law of the jurisdiction where the case is pending
<the lex fori governs whether the death penalty is a
possible punishment for a first-degree-murder convic
tion>. -Also termed lex ordinandi. Cf. LEX LOCI (1).
[Cases: Action 17.]
lex Francorum (leks frang-kor-;lm), n. [Law Latin] The
law of the Franks, promulgated by Theodoric I, son of
Clovis I, at the same time as the law of Alemanni and
Bavaria.
lex Frisionum (leks frizh-ee-oh-n;lm), n. [Law Latin]
The law of the Frisians, promulgated in the middle of
the eighth century.
lex Fufia Caninia (leks foof-ee-;l k;l-nI-nee-;l). [Latin]
Roman law. A law prohibiting owners from freeing
by will more than a certain number or proportion of
their slaves . Justinian later abrogated this law. -Also
termed lex Fufia Caninia; Fufian Can in ian law; Fufian
Caninian law.
lex Furia testamentaria (leks fyoor-ee-;l tes-t;l-men
tair-ee-;l. [Latin] Roman law. A law prohibiting a
testator from bequeathing more than 1,000 asses (Le.,
722 pounds) of copper or the equivalent. This law,
dating from the middle of the republic, was one of the
first to restrict legacies. It was passed between 204 and
169 B.C.
"The lex Furia . .. provided that no one except [close] rela
tives ... should take by will or gift in view of death more
than 1000 asses [copper coins). It did not rescind the dis
pOSition, but enacted a penalty offour times the amount,
recoverable by a stringent procedure from anyone who
took such a legacy or gift, contrary to the law, But this
law left it open to a testator to leave nothing to the heir,
supposing he made a sufficient number of legatees up to
the statutable limit," 1 Henry John Roby, Roman Private
Law 344-45 (1902).
lex Fusia Caninia. See LEX FUFIA CANINIA.
lex Gahinia (leks g<l-bin-ee-;l). [Latin] Roman law. A
law introducing popular election by secret ballot.
Secret ballots were also used in judicial meetings.
Also termed lex Gabinia tabellaria (leks g;l-bin-ee-;l
tab-<I-lair-ee-<:l).
lex generalis (leks jen-;l-ray-lis). A law of general appli
i cation, as opposed to one that affects only a particular
' person or a small group ofpeople.
994 lex Genucia
lex Genucia (leks jd-n[y]oo-shee-d). [Latin] Roman law.
A law prohibiting the charging of interest on loans
between Roman citizens . The statute was proposed
in the 4th century B.C., but it is uncertain when, ifever,
it was enacted. Ifenacted, it was not enforced.
lex Gothica (leks goth-ik-d), n. [Law Latin] Hist. The law
of the Goths. It was first promulgated in writing in
A.D. 466.
lex Horatia Valeria. See LEX VALERIA HORATIA.
lex Hortensia (leks hor-ten-s[h]ee-d). [Latin] Roman
law. A law extending to the plebeians full participa
tion in public laws ofgovernment and worship; specif.,
an important constitutional law that made laws passed
by the assemblies of the common people (the plebeians)
binding on all citizens . Previously, plebeian assem
blies could not bind the patrician class. This statute put
enactments ofthe concilium plebis on the same footing
as leges. See JUS PUBLICUM; JUS SACRUM.
lex Hostilia de furtis (leks hos-til-ee-d dee f<lr-tis). [Latin]
Roman law. A law of the early Republic providing that
the state could prosecute a person for theft on behalf of
an owner when the owner was captive or abroad . This
affected the actiones legis. See LEGIS ACTIO.
lexical definition. See DEFINITION.
lex imperatoria (leks im-pdr-d-tor-ee-d). [Latin]
Imperial law.
lex incorporation is. [Latin] The law of the state where
incorporation takes place. See INTERNAL-AFFAIRS
DOCTRINE.
LEXIS (lek-sis). A proprietary online computer service
that provides access to databases oflegal information,
including federal and state caselaw, statutes, and sec
ondary materials.
lex judicialis (leks joo-dish-ee-ay-lis), n. [Latin "judicial
law"] An ordeal. See ORDEAL.
lex Julia (leks joo-Iee-d). [Latin] Roman law. One of
several Roman statutes dating from the reign of the
Emperor Augustus (27 B.C.-A.D. 14) or sometimes from
Julius Caesar (47-44 B.C.).
lex Julia de adulteriis coercerendis (leks joo-Iee-d dee
d-ddl-tJr-ee-is koh-dr-sd-ren-dds). [Latin] Roman law.
A statute of 18 B.C. making adultery a public crime,
justiciable before a quaestio perpetua. -Sometimes
shortened to lex Julia de adulteriis.
lex Julia de ambitu (leks joo-lee-d dee am-bi-t[y]oo).
[Latin] Roman law. A law of 18 B.C. discouraging elec
toral corruption by a would-be magistrate.
lex Julia de annona (leks joo-lee-d dee d-noh-nd).
[Latin] Roman law. A law against business combina
tions that negatively affected the grain supply, esp.
attempts to raise the price ofcorn.
lex Julia de cessione bonorum (leks joo-Iee-d dee
ses[h]-ee-oh-nee bd-nor-dm). [Latin] Roman law.
A law governing bankruptcies allowing a debtor to
avoid further adverse action by ceding all the debtor's
property to the creditors. lex Julia de majestate (leks joo-Iee-d dee maj-d-stay
tee. [Latin] Roman law. A treason law imposing
capital punishment on a person acting against the
emperor or state . Enacted about 8 B.C., this was the
last specific law on treason.
lex Julia de maritandis ordinibus (leks joo-Iee-d dee
mar-d-tan-dis or-din-d-bds). [Latin] Roman law.
A law regulating marriages, imposing a duty to be
married on all men between 25 and 60, and on all
women between 20 and 50, and forbidding mar
riages between senators and freedwomen, and for
bidding senators and all other freeborn citizens from
marrying actresses, prostitutes, and the like . This
18 B.C. statute is usu. considered as one law with the
lex Papia Poppea of A.D. 9, which exempted women
with three children or more from being placed under
guardianship.
lex Julia de peculatu (leks joo-Iee-d dee pek-yd-Iay
t[y]oo). [Latin] Roman law. A law punishing the
embezzlement ofpublic monies . Originally a mag
istrate determined the punishment. The same court
had jurisdiction for transgressions under lex Julia
de residius and for sacrilege, the wrongful taking of
money dedicated to sacred or religious purposes. See
lex Julia de residuis.
lex Julia de residuis (leks joo-Iee-d dee ri-zij-oo-is).
[Latin] Roman law. A law punishing persons who
could not account for public money lawfully in their
charge. See lex Julia de peculatu.
lex Julia judiciorum privatorum (leks joo-Iee-d joo
dish-ee-or-dm prr-vd-tor-dm). See lex Julia judicio
rum publicorum.
lex Julia judiciorum publicorum (leks joo-Iee-d joo
dish-ee-or-dm pd-bli-kor-dm). [Latin] Roman law.
An Augustan law that, with the lex Julia judicio rum
privatorum, reformed various aspects of civil proce
dure. The two laws are often referred to together
as leges Juliae, or duae Juliae. Together with the lex
Aebutia, the leges Julia largely abolished the legis
actiones, the ancient form of Roman civil procedure
that relied on fixed oral forms.
lex Junia Norbana (leks joo-nee-d nor-bay-nd). [Latin]
Roman law. A law creating the status of Junian Latin
for informally manumitted slaves. -Often shortened
to lex Junia. See LATINI JUNIANI.
"After the lex Junia Norbana, we find the following classes
of persons, under the division of the law of persons into
free men or slaves: 1. Ingenui, or persons born free. 2. Lib
ertini . .. ex-slaves who, on gaining their freedom, became
cives. 3. Latini Juniani ... ex-slaves who, on manumission
and by reason of some defect therein, became something
short of full citizens. 4. Dediticii .... 5. Slaves proper."
R.w. Leage, Roman Private Law 70 (C.H. Ziegler ed., 2d
ed. 1930).
lex Junia Velleia (leks joo-nee-d vd-Iee-Yd). [Latin]
Roman law. A law providing that certain kinds of
descendants must be treated as posthumously born
children ofa decedent for purposes of heirship. This
probably was enacted in A.D. 26.
995 lex posterior derogat priori
lex Kantiae (leks kan-shee-ee). [Law Latin] Hist. A body
ofcustoms, mainly concerning land tenure, prevailing
in Kent during the time ofEdward 1.
lex Langobardorum. See LEX LONGOBARDORUM.
lex ligeantiae (leks lij-ee-an-shee-ee). [Law Latin] The
law ofthe country to which a person owes national alle
giance. Some jurists have thought that this law ought
to decide many of the questions that have usu. been
determined by the lex domicilii.
lex loci (leks loh-51). [Latin] (I8c) 1. The law ofthe place;
local law. Cf. LEX FORI. 2. LEX LOCI CONTRACTUS.
lex loci actus (leks lob-sr ak-t;:Js). [Law Latin] Ihe law of
the place where an act is done or a transaction is com
pleted. Otten shortened to lex actus.
lex loci celebrationis (leks lob-s1 sel-;:J-bray-shee-oh-nis).
[Latin "law of the place of the ceremony"] The law of
the place where a contract, esp. ofmarriage, is made .
This law usu. governs when the validity of a marriage
is at issue. Restatement (Second) of Conflict of Laws
283(2) (1971).
lex loci contractus (leks loh-51 bn-trak-tas). [Latin] The
law of the place where a contract is executed or to be
performed. Lex loci contractus is often the proper
law by which to decide contractual disputes. Often
shortened to lex loci; lex contractus. [Cases: Contracts
(;::::> 144.]
"The lex loci contractus controls the nature, construction, |
ases: Contracts
(;::::> 144.]
"The lex loci contractus controls the nature, construction,
and validity of the contract; and on this broad foundation
the law of contracts, founded on necessity and commercial
convenience, is said to have been originally established. If
the rule were otherwise, the citizens of one country could
not safely contract, or carryon commerce, in the territories
of another." 2 James Kent, Commentaries on American Law
*454 (George Comstock ed., 11 th ed. 1866).
lex loci delicti (leks lob-51 d<l-lik-tI). [Latin] The law of
the place where the tort or other wrong was commit
ted. -Often shortened to lex delicti. -Also termed
lex loci delictus; lex loci delicti commissi; place-oj-wrong
rule; place-oj-wrong law. Cf. LOCUS DELICTI, [Cases:
Torts (;::::> 103.]
lex loci rei sitae (leks lob-sl ree-1 sl-tee). [Latin] LEX
SITUS.
lex loci solutionis (leks loh-si s;:J-Ioo-shee-oh-nis). [Latin
"law ofthe place of solution"] The law ofthe place where
a contract is to be performed (esp. by payment). -
Otten shortened to lex solutionis.
lex Longobardorum (leks long-goh-bahr-dor-<lm).
[Latin "law of the Lombards"] Hist. An ancient legal
code developed between the fifth and eighth centu
ries, in force until the reign of Charlemagne; the laws
of the Lombards, seen cumulatively from the Edict of
Rothari in A.D. 643, and added to by Liutprand . It was
a subject of study in the early law school at Pavia.
Also spelled lex Langobardorum; [ex Langobardica.
lex majoris partis [Latin "law of the major party")
Majority rule. See MAJORITY RULE.
"The voice of the majority decides. For the lex majoris
partis is the law of all councils, elections, &c. where not
otherwise expressly provided. But if the house be equally divided, 'semper presumatur pro negante:' that is, the
former law is not to be changed but by a majority." Thomas
Jefferson, A Manual of Parliamentary Practice 105 (1801)
(citation omitted).
lex manifesta (leks man-;)-fes-ta). [Law Latin] Hist. 1.
Open law; manifest law. 2. Trial by duel or ordeal.
Also termed manifest law.
lex marityma. Hist. The body of customs, usage, and
local rules governing seagoing commerce that devel
oped in the maritime countries of medieval Europe.
lex mercatoria (leks m;:Jr-ka-tor-ee-a). [Latin "mercantile
law"] See LAW MERCHANT.
lex merciorum (leks mar-shee-or-am). See MERCEN
LAGE.
lex monetae (leks m;:J-nee-tee). [Latin] The law of the
country whose money is in question.
lex naturae (leks nd-tyoor-ee). See NATURAL LAW.
lex naturale (leks nach-a-ray-lee). [Law Latin] See
NATURAL LAW.
lex non scripta (leks non skrip-t;:J). [Latin "unwrit
ten law"] See unwritten law under LAW. Pi. leges non
scriptae.
lex ordinandi (leks or-d;:J-nan-dr). See LEX FORI.
lex Papia Poppea (leks pay-pee-a pah-pee-a). [Latin]
Roman law. A law proposed by the consuls Papius and
Poppeus at the request ofAugustus. It is usu. consid
ered with the lex Julia de maritandis ordinibus as one
law. Also termed Papian law; Poppean law. See lex
Julia de maritandis ordinibus under LEX JULIA.
lex patriae (leks pay-tree-ee or pa-tree-ee). [Latin]
National law; the law of one's country. See PERSONAL
LAW.
lex Petronia (leks pa-trob-nee-a). [Latin] Roman law.
A law forbidding masters from sending their slaves to
fight wild beasts in the arena, without a magistrate's
authorization . This law was enacted sometime before
A.D. 79.
lex Plaetoria (leks pli-or plee-tor-ee-a). [Latin] Roman
law. A law protecting minors against frauds and
probably permitting them to apply for a guardian or
curator to assist them.
lex PoeteHa (leks poh-a-tee-Iee-a). [Latin] Roman law. A
law abolishing a creditor's right to reduce his debtor to
slave-like treatment. This law was enacted sometime
before 300 B.C.
lex Pompeia de parricidiis (leks pom-pee-a dee par-a
sl-dee-is). [Latin] Roman law. A law of 70 or 55 B.C.
defining what murders amounted to parricide and
establishing a special expiatory punishment, in which
the offender was executed by being sewn up in a sack
with a dog, a rooster, a viper, and a monkey, and thrown
into the sea or a river.
lex posterior derogat priori (leks pah-steer-ee-<lf der-a
gat prr-or-r). [Latin "a later law prevails over an earlier
one"] The principle that a later statute negates the effect
ofa prior one if the later statute expressly repeals, or is
obviously repugnant to, the earlier law.
lex praetoria (leks pri-or pree-tor-ee-a). [Latin "praeto
rian law" J1. Roman law. Law laid down in the praetor's
edict. Cf. JUS PRAETORIUM. 2. Hist. The applicable rules
in a court of equity.
lex privata (leks pn-vay-ta). [Latin "private law"] Roman
law. A term in a private contract. Sometimes short
ened to lex.
lex publica (leks pab-li-b). [Latin "public law"] Roman
law. 1. A law passed by a popular assembly and binding
on all people. 2. A written law. -Sometimes shortened
to lex.
lex Publilia (leks p[y]oo-blil-ee-a). [Latin "Publilian
law"] Roman law. A law dispensing with senatorial
approval for the enactments of the plebs (common
citizens). In 339 B.C. these laws strengthened the force
ofthe plebiscita and indirectly weakened the patrician
element in the Senate by permitting auctoritas patrum
to be given in advance for some legislation, and requir
ing one of the censors to be a plebeian. -Also termed
leges Publiliae Philonis.
lex regia (leks ree-jee-a). [Latin "royal law"] Roman law.
A law ostensibly enacted by the Roman people granting
wide legislative and executive powers to the emperor,
later interpreted as providing that the emperor was a
source oflaw, the emperor had full legislative powers,
and the emperor's will or pleasure had the full force of
law. See LEX IMPERII.
lex rei sitae (leks ree-I sl-tee). [Law Latin] Scots law. The
law of the place where the property is situated.
lex Rhodia (leks roh-dee-a). [Latin] Roman law. The
Rhodian law governing the subject of jettison. This
began as the common law ofthe ancient Mediterranean
Sea. It required that all consignors and the shipmaster
share losses equally. -Also termed lex Rhodia de jactu.
See RHODIAN LAW.
lex Romana (leks ra-may-na). [Latin] ROMAN LAW.
Lex Romana Visigothorum (leks r<l-may-na viz-a-gah
thor-am). See BREVIARIUM ALARICIANUM.
lex Salica (leks sal-;)-b). [Latin] See SALIC LAW.
lex Scribonia (leks skri-boh-nee-a). [Latin] Roman law.
A law ofthe late Republic abolishing the acquisition of
praedial servitudes through prescription.
lex scripta (leks skrip-ta). [Latin "written law"] See
unwritten law under LAW. PI. leges scriptae.
lex Sempronia (leks sem-proh-nee-;). [Latin] Roman
law. A law of 122 B.C. transferring the duty of jury
service from the senators to the equestrians (knights).
The control ofthe juries in the quaestiones perpetuae,
particularly in extortion (repetundae) trials, was one of
the key areas ofpolitical conflict in the late Republic.
lex Silia (leks sil-ee-a). [Latin] Roman law. A law pro
viding for personal actions for a fixed sum of money;
specif., a law from perhaps 250 B.C. introducing the legiS
actio per condictionem to claim a fixed sum of money. lex situs (leks SI-tas. [Law Latin] The law of the place
where property is located. Also termed lex loci rei
sitae. See Restatement (Second) of Conflict of Laws
222 et seq. (1971).
lex solutionis. See LEX LOCI SOLUTIONIS.
lex talionis (leks tal-ee-oh-nis). [Law Latin] The law
of retaliation, under which punishment should be in
kind -an eye for an eye, a tooth for a tooth, and so
on but no more. Also termed eye for an eye; jus
talionis; principle ofretribution.
"Kant, for example, expresses the opinion that punishment
cannot rightly be inflicted for the sake of any benefit to be
derived from it either by the criminal himself or by society,
and that the sale and sufficient reason and justification of
it lies in the fact that evil has been done by him who suffers
it. Consistently with this view. he derives the measure of
punishment, not from any elaborate considerations as to
the amount needed for the repression of crime, but from
the simple principle of lex talionis: 'Thine eye shall not
pity; but life shall go for life, eye for eye, tooth for tooth,
hand for hand, foot for foot" [Deuteronomy, xix 21]. No
such principle, indeed, is capable of literal interpretation;
but subject to metaphorical and symbolical applications
it is in Kant's view the guiding rule of the ideal scheme of
criminal justice." John Salmond, Jurisprudence 118 (Glan
ville L. Williams ed., 10th ed. 1947).
"But if the old form of the lex talionis, an eye for an eye or
a tooth for a tooth, sounds too barbariC today, may we not
reformulate the retributive theory and put it thus: Everyone
is to be punished alike in proportion to the gravity of his
offense or to the extent to which he has made others
suffer?" Morris R. Cohen, Reason and Law 53 (1961).
lex terrae (leks ter-ee). [Law Latin] See LAW OF THE
LAND.
lex Theodosiana (leks thee-a-doh-see-an-d). See TIIEO
DOSIAN CODE.
lex Valeria Horatia (leks va-Ieer-ee-a h<l-ray-shee-a).
[Latin] Roman law. A law making enactments by the
assembly of the people in tribes binding on all citizens.
Several laws of this name were passed in 449 B.C.
One was aimed at strengthening the force ofplebiscita.
Another protected plebeian tribunes with sacrosanc
tity. A third, more dubious, law falls between the lex
Valeria of 509 B.C. and the lex Valeria of 300 B.C. in
granting the right ofprovocatio to the Roman citizen
oppressed by a magistrate. Cf. LEX HORTENSIA.
lex validitatis (leks val-d-day-tis. [Latin] Conflict oflaws.
The presumption ofvalidity given to marriages, con
tracts, and other matters.
lex Visigothorum (leks viz-a-gah-thor-<lm). [Latin "law
of the Visigoths"] The law of a division of the Goths
(a Germanic tribe) known as the Visigoths, who con
quered Spain in the 5th century. In the late 7th
century, Kings Recceswinth and Erwig imposed a
Visigothic common law, and it is to this law that the
phrase lex Visigothorum usu. applies. -Also spelled
lex Wisigothorum. Also termed liber iudiciorum.
lex Voconia (leks va-koh-nee-d). [Latin] Roman law. A
law enacted in 169 B.C. to regulate inheritance (esp. by
women) by capping the amount receivable by anyone
as legacy or gift in view of death at no more than the
heirs took. 1be Falcidian law superseded the lex
997
Voconia. Also termed Voconian law. See FALCIDIAN
LAW.
"Lex Voconia .... Contained several provisions con
cerned with the law of succession: (l) No woman could be
heir ... to an estate having a value greater than a fixed
amount .... (2) Admitted among female agnates only
the sisters of the deceased to intestate succession. (3) No
one person male or female could receive by legacy
more than the heir (or all heirs together) instituted in the
last will." Adolf Berger, Encyclopedic Dictionary of Roman
Law 561 (1953).
lex Wallensica (leks wawl-en-z<I-b), n. [Latin] Welsh
law.
ley (lay), n. [Law French] Hist. Law.
ley civile (lay see-or s.:l-veel), n. [Law French) Hist. L
The civil law. 2. The Roman law. -Also termed ley
escripte.
ley de terre (lay dd tair). [Law French] See LAW OF THE
LAND.
leyerwite. See LAIRWlTE.
ley |
[Law French] See LAW OF THE
LAND.
leyerwite. See LAIRWlTE.
ley escripte (lay es-kript). See LEY CIVILE.
ley gager (lay gay-jdr), n. [Law French] Hist. Wager of
law; the defendant's giving of security to make law on
a particular day. See WAGER OF LAW.
leze majesty. See LESE MAJESTY.
L.F. abbr. LAW FRENCH.
LHWCA. abbr. LONGSHORE AND HARBOR WORKERS'
COMPENSATION ACT.
liability, n. (18c) 1. The quality or state of being legally
obligated or accountable; legal responsibility to another
or to society, enforceable by civil remedy or criminal
punishment <liability for injuries caused by negli
gence>. -Also termed legal liability; subjection. Cf.
FAULT. 2. (often pl.) A financial or pecuniary obligation;
DEBT <tax liability> <assets and liabilities>.
"The term 'liability' is one of at least double signification.
In one sense it is the synonym of duty, the correlative of
right; in this sense it is the opposite of privilege or liberty.
If a duty rests upon a party, society is now commanding
performance by him and threatening penalties. In a second
sense, the term 'liability' is the correlative of power and
the opposite of immunity. In this case society is not yet
commanding performance, but it will so command if the
possessor of the power does some operative act. If one has
a power, the other has a liability. It would be wise to adopt
the second sense exclusively. Accurate legal thinking is
difficult when the fundamental terms have shifting senses."
William R. Anson, Principles ofthe Law ofContract 9 (Arthur
L. Corbin ed. 3d Am. ed. 1919).
"Liability or responsibility is the bond of necessity that
exists between the wrongdoer and the remedy of the
wrong. This vinculum juris is not one of mere duty or obli
gation; it pertains not to the sphere of ought but to that
of must." John Salmond, Jurisprudence 364 (Glanville L.
Williams ed., 10th ed. 1947).
absolute liability. See strict liability.
accomplice liability. (1958) Criminal responsibility of
one who acts with another before, during, or (in some
jurisdictions) after a crime. See 18 USCA 2. [Cases:
Criminal Law (;::>59.] liability
accrued liability. (1877) A debt or obligation that is
properly chargeable in a given accounting period but
that is not yet paid.
alternative liability. (1929) Liability arising from the
tortious acts oftwo or more parties -when the plain
tiff proves that one ofthe defendants has caused harm
but cannot prove which one caused it resulting
in a shifting of the burden of proof to each defen
dant. Restatement (Second) ofTorts 433B(3) (1965).
[Cases: Torts c?130.J
civil liability. (1817) 1. Liability imposed under the
civil, as opposed to the criminal, law. 2. 1ne state of
being legally obligated for civil damages.
contingent liability. (18c) A liability that will occur only
ifa specific event happens; a liability that depends on
the occurrence ofa future and uncertain event. In
financial statements, contingent liabilities are usu.
stated in footnotes.
current liability. A business liability that will be paid
or otherwise discharged with current assets or by
creating other current liabilities within the next year
(or operating cycle). -Also termed short-term debt.
derivative liability. (1886) Liability for a wrong that
a person other than the one wronged has a right to
redress. Examples include liability to a widow in a
wrongful-death action and liability to a corporation
in a shareholder's derivative suit.
enterprise liability. (1941) 1. Liability imposed on each
member of an industry responsible for manufactur
ing a harmful or defective product, allotted by each
manufacturer's market share ofthe industry. -Also
termed industry-wide liability. See market-share
liability. [Cases: Products Liability C='164, 165.] 2.
Criminal liability imposed on a business (such as a
corporation or partnership) for certain offenses, such
as public-welfare offenses or offenses for which the
legislature specifically intended to impose criminal
sanctions. See Model Penal Code 2.07. See public
welfare offense under OFFENSE (1).
fault liability. Liability based on some degree ofblame
worthiness. Also termed fault-based liability. Cf.
strict liability.
joint and several liability. (1819) Liability that may
be apportioned either among two or more parties or
to only one or a few select members of the group, at
the adversary's discretion . Thus, each liable party
is individually responSible for the entire obligation,
but a paying party may have a right of contribution
and indemnity from nonpaying parties. See solidary
liability. [Cases: Contracts (;::> 181; Negligence
484; Torts G-=> 135.)
joint liability. (18c) Liability shared by two or more
parties. [Cases: Negligence C=:::484; Torts
liability in solido. See solidary liability.
liability withoutfault. See strict liability.
limited liability. (1833) Liability restricted by law or
contract; esp., the liability of a company's owners for
liability bond 998
nothing more than the capital they have invested in
the business. [Cases: Corporations C=:::>21S.]
market-share liability. (1980) Liability that is imposed,
usu. severally, on each member ofan industry, based
on each member's share of the market or respective
percentage ofthe product that is placed on the market.
This theory ofliability usu. applies only in the situ
ation in which a plaintiff cannot trace the harmful
exposure to a particular product, as when several
products contain a fungible substance. For example,
it is sometimes applied to a claim that the plaintiff
was harmed by exposure to asbestos. See enterprise
liability. [Cases: Officers and Public Employees ~':::)
114; Products Liability C=:::> 166; Receivers C=:::> 168.]
official liability. Liability of an officer or receiver for
a breach of contract or a tort committed during the
officer's or receiver's tenure, but not involving any
personal liability.
penal liability. Liability arising from a proceeding
intended at least partly to penalize a wrongdoer. Cf.
remedial liability.
personal liability. (18c) Liability tor which one is per
sonally accountable and for which a wronged party
can seek satisfaction out ofthe wrongdoer's personal
assets.
premises liability. See PREMISES LIABILITY.
primary liability. (1834) Liability for which one is
directly responsible, as opposed to secondary liabil
ity.
products liability. See PRODUCTS LIABILITY.
remedial liability. Liability arising from a proceed
ing whose object contains no penal element . The
two types of proceedings giving rise to this liability
are specific enforcement and restitution. Cf. penal
liability.
secondary liability. (1830) Liability that does not arise
unless the primarily liable party fails to honor its
obligation.
several liability. (1819) Liability that is separate and
distinct from another's liability, so that the plaintiff
may bring a separate action against one defendant
without joining the other liable parties. [Cases: Neg
ligence C=:::>484; Torts
shareholder's liability. 1. The statutory, added, or
double liability of a shareholder for a corporation's
debts, despite full payment for the stock. 2. The lia
bility of a shareholder for any unpaid stock listed as
fully owned on the stock certificate, usu. occurring
either when the shareholder agrees to pay full par
value for the stock and obtains the certificate betore
the stock is paid for, or when partially paid-for stock is
intentionally issued by a corporation as fully paid, the
consideration for it being entirely fictitious. -Also
termed stockholder's liability. [Cases: Corporations
(;:::.21S,
solidary liability (sol-..-dair-ee). Civil law. The liability
of anyone debtor among two or more joint debtors to pay the entire debt if the creditor so chooses. La.
Civ. Code art. 1794. This is equivalent to joint and
several liability in the common law. -Also termed
liability in solido. See joint and several liability. [Cases:
Negligence Torts 13S.)
statutory liability. Liability that is created by a statute
(or regulation) as opposed to common law.
stockholder's liability. See shareholder's liability.
strict liability. (1844) Liability that does not depend
on actual negligence or intent to harm, but that is
based on the breach of an absolute duty to make
something safe . Strict liability most often applies
either to ultrahazardous activities or in products-lia
bility cases. Also termed absolute liability; liability
without fault. Cf. fault liability; OUTCOME RESPON
SIBILITY. [Cases: Negligence (::::>301-307; Products
Liability C=:::> lB.]
tortious liability. Liability that arises from the breach
of a duty that (1) is fixed primarily by the law, (2) is
owed to persons generally, and (3) when breached, is
redressable by an action for unliquidated damages.
vicarious liability (vl-kair-ee- ..s). (1890) Liability that a
supervisory party (such as an employer) bears for the
actionable conduct ofa subordinate or associate (such
as an employee) based on the relationship between the
two parties. See RESPONDEAT SUPERIOR. [Cases: Labor
and Employment C=:::>3026; Negligence C-:;-,483.]
"The vicarious liability of an employer for torts committed
by employees should not be confused with the liability
an employer has for his own torts. An employer whose
employee commits a tort may be liable in his own right
for negligence in hiring or supervising the employee. If
in my business I hire a truck driver who has a record of
drunk driving and on whom one day I detect the smell of
bourbon, I (along with my employee) may be held liable
for negligence if his driving causes injury. But that is not
'vicarious' liability-I am held liable for my own negligence
in hiring that employee or letting him drive after I know he
has been drinking." Kenneth S. Abraham, The Forms and
Functions ofTort Law 166 (2002).
liability bond. See BOND (2).
liability dividend. See scrip dividend under DIVIDEND.
liability in solido. See solidary liability under LIABIL
ITY.
liability insurance. See INSURANCE.
liability limit. Insurance. The maximum amount of
coverage that an insurance company will provide on a
single claim under an insurance policy. -Also termed
limit ofliability; policy limits. [Cases: Insurance
21OS.]
liability without fault. See strict liability under LIABIL
ITY.
liable (h-..-b..l also h-b..l), adj. (lSc) 1. Responsible or
answerable in law; legally obligated. 2. (Of a person)
subject to or likely to incur (a fine, penalty, etc.). Also
termed legally liable. See LIABILITY.
liar's loan. See LOAN.
999
libel (h-bJl), n. (14c) 1. A defamatory statement expressed
in a fixed medium, esp. writing but also a picture,
sign, or electronic broadcast . Libel is classified as
both a crime and a tort but is no longer prosecuted as
a crime. - Also termed defamatory libel. 2. The act of
making such a statement; publication of defamatory
matter by written or printed words, by its embodiment
in physical form or by any other form of communica
tion that has the potentially harmful qualities charac
teristic of written or printed words. See DEFAMATION.
Cf. SLANDER. [Cases: Libel and Slander ~1, 14,25.]
"Ubel is written or visual defamation; slander is oral or
aural defamation." Robert D. Sack & Sandra S. Baron, Ubel,
Slander, and Related Problems 2.3, at 67 (2d ed. 1994).
"The distinction itself between libel and slander is not
free from difficulty and uncertainty. As it took form in the
seventeenth century, it was one between written and oral
words. But later on libel was extended to include pictures,
signs, statues, motion pictures, and even conduct carrying
a defamatory imputation, such as hanging the plaintiff in
effigy, erecting a gallows before his door, dishonoring his
valid check drawn upon the defendant's bank, or even ...
following him over a considerable period in a conspicu
ous manner. From this it has been concluded that libel
is that which is communicated by the sense of Sight, or
perhaps also by touch or smell, while slander is that which
is conveyed by the sense of hearing." W. Page Keeton et aI.,
The Law of Torts 112, at 786 (5th ed. 1984).
criminal libel. At common law, a malicious libel that is
designed to expose a person to hatred, contempt, or
ridicule and that may subject the author to criminal
sanctions. Because ofconstitutional protections of
free speech, libel is no longer criminally prosecuted.
[Cases: Libel and Slander ~141.J
false-implication libel. Libel that creates a |
[Cases: Libel and Slander ~141.J
false-implication libel. Libel that creates a false impli
cation or impression even though each statement in
the article, taken separately, is true. See FALSE LIGHT;
INVASION OF PRIVACY.
group libel. (1940) Libel that defames a class ofpersons,
esp. because of their race, sex, national origin, reli
gious belief, or the like. Civil liability for group
libel is rare because the plaintiff must prove that the
statement applied particularly to him or her. Cf. hate
speech under SPEECH. [Cases: Libel and Slander
21.J
libel per quod (pJr kwod). (1927) 1. Libel that is action
able only on allegation and proofofspecial damages.
Most jurisdictions do not recognize libel per quod,
holding instead that general damages from libel are
presumed. 2. Libel in which the defamatory meaning
is not apparent from the statement on its face but
rather must be proved from extrinsic circumstances.
See INNUENDO (2). [Cases: Libel and Slander ~1,
6-13,32,33.]
libel per se (pJf say). (1843) 1. Libel that is actionable in
itself, requiring no proofof special damages . Most
jurisdictions do not distinguish between libel per
se and libel per quod, holding instead that general
damages from libel are presumed. 2. Libel that is
defamatory on its face, such as the statement "Frank
is a thief. [Cases: Libel and Slander libel/us conventionis
obscene libel. Hist. 1. 1be common-law crime of pub
lishing, with the intent to corrupt, material (esp_
sexual words or pictures) that tends to deprave or
corrupt those whose minds are open to immoral influ
ences. 2. A writing, book, picture, or print that is so
obscene that it shocks the public sense ofdecency.
seditious libel. Libel made with the intent of inciting
sedition. Like other forms of criminal libel, sedi
tious libel is no longer prosecuted. See SEDITION.
[Cases: Libel and Slander C-:;; 141, 145.1
trade libel. Trade defamation that is written or
recorded. See trade defamation under DEFAMATION;
DISPARAGEMENT (3). Cf. trade slander under SLANDER.
[Cases: Libel and Slander ~130.1
3. The complaint or initial pleading in an admiralty or
ecclesiastical case. [Cases: Admiralty ~60.1 -Also
termed (in sense 3) libel ofinformation.
libel, vb. (16c) 1. To defame (someone) in a permanent
medium, esp. in writing. [Cases: Libel and Slander (;;:>
1, 25.] 2. Hist. Maritime law. To sue in admiralty or
ecclesiastical court. This use of the term was elimi
nated with the merging of the Admiralty Rules into the
Federal Rules of Civil Procedure in 1986.
libelant (lI-bJI-<1nt). (16c) 1. The party who institutes a
suit in admiralty or ecclesiastical court by filing a libeL
[Cases: Admiralty ~41.J 2. LIBELER. -Also spelled
libellant.
libelee (h-bdl-ee). The party against whom a libel has
been filed in admiralty or ecclesiastical court. Also
spelled libellee. [Cases: Admiralty (;;:>42.]
libeler. One who publishes a written defamatory state
ment. -Also spelled libeller. Also termed libelant.
[Cases: Libel and Slander
libellary procedure (h-bJI-er-ee). Roman law. The pre
liminary proceedings in a lawsuit, initiated by a plain
tiffs written claims (in a libellus) to the magistrate.
libellos agere (lJ-bel-Js aj-J-ree), vb. [LatinJ Roman law.
To assist the emperor in responding to petitions.
Also termed libellum agere.
libellous, adj. See LIBELOUS.
libellus (ld-bel-as), n. [LatinJ 1. Roman law. A small book;
a written statement to a court; a petition. 2. Hist. An
instrument conveying all or part of land. 3. Anyone
of a number oflegal petitions or documents, such as a
bill ofcomplaint.
libellus accusatorius (l<1-bel-<ls d-kyoo-zd-tor-ee-ds).
[Latin] Roman law. A criminal accusation in writing.
libellus appellatorius (lJ-bel-Js J-pel-J-tor-ee-<ls).
[Latin] Roman law. A written appeal in cognitio pro
ceedings.
libellus conventionis (l<1-bel-<ls k<1n-ven-shee-oh-nis).
[Latin] Roman law. The statement ofa plaintiffs claim
in a petition sent to the magistrate, who directs its
delivery to the defendant.
"The libellus conventionis was very like the intentio of the
formulary system, and the modern statement of claim,
since it set forth in a succinct manner the nature of the
1000 libellus divortii
plaintiff's right and the circumstances attending its alleged
violation." R.W. Leage, Roman Private Law417 (C.H. Ziegler
ed., 2d ed. 1930).
libellus divortii (lJ-bel-Js di-vor-shee-I). [Latin] Roman
law. A bill ofdivorce. In the later Roman empire, also
termed libellus repudii.
libellus famosus (lJ-bel-Js fJ-moh-sJs). [Latin] Roman
law. A defamatory publication.
"Ubellus famosus .... According to the Lex Cornelia de
iniuriis punishment was inflicted on the person who wrote
(saipserit), composed (composuerit) or edited (ediderit)
such a lampoon, even if the publication was made under
another name or anonymously (sine nomine)." Adolf Berger,
Encyclopedic Dictionary ofRoman Law 562 (J 953).
libellus repudii (IJ-bel-Js ri-pyoo-dee-I). See LIBELLUS
DIVORTII.
libellus rerum (lJ-bel-JS reer-Jm), n. [Latin] Hist. An
inventory.
libellus supplex (lJ-bel-Js sap-leks). [Latin] Roman law.
A petition, esp. to the emperor . All petitions to the
emperor had to be in writing.
libel ofaccusation. Scots law. The instrument stating the
criminal charge against an accused person.
libel ofinformation. Maritime law. See LIBEL (3).
libel ofreview. Maritime law. A new proceeding attack
ing a final decree after the right to appeal has expired.
See LIBEL (3).
libelous, adj. Constituting or involving libel; defamatory
<a libelous newspaper story>. Also spelled libellous.
[Cases: Libel and Slander C=6-14.]
libel per quod. See LIBEL.
libel per se. See LIBEL.
liber (h-bJr), adj. [Latin "free"] 1. (Of courts, public
places, etc.) open and accessible. 2. (Of a person) having
the state or condition ofa freeman. 3. (Of a person) free
from another's service or authority.
liber (h-bJr), n. [Latin "book"] 1. A book of records,
esp. of deeds. 2. A main division of a literary or pro
fessional work.
libera batelia (lib-Jr-J bJ-tel-J), n. [l.atin "free boat"]
Hist. The right to have a boat fish in certain waters;
free fishery.
libera chasea habenda (lib-Jr-J chay-see-J hJ-ben-dJ),
n. [Law Latin] Hist. A judicial writ granting a person
the right to a free chase after game belonging to the
person's manor, after the jury's verdict granting that
right. See CHASE.
libera eleemosyna (lib-aI-a el-J-mos-J-m). See FRANKA
LMOIN.
libera falda (lib-Jr-<:) fal-dJ or fawl-dJ}. See DE LIBERA
FALDA.
liberal, adj. (14c) 1. (Of a condition, state, opinion, etc.)
not restricted; expansive; tolerant <liberal policy>.
2. (Of a person or entity) opposed to conservatism;
advocating expansive freedoms and individual expres
sion <liberal party>. 3. (Of an act, etc.) generous <a liberal gift>. 4. (Of an interpretation, construction,
etc.) not strict or literal; loose <a liberal reading ofthe
statute>.
liberal construction. See CONSTRUCTION.
libera lex (lib-Jr-J leks), n. [Latin "free law"] Hist. Free
law; the law of the land. This phrase referred to the
law enjoyed by free and lawful men, as opposed to men
who had lost the benefit and protection ofthe law as
a result of committing crimes. See LIBERAM LEGEM
AMITTERE.
liberal interpretation. See D!TERPRETATION.
liberam legem amittere (lib-Jr-om lee-jJm a-mit-J-ree).
[Latin] Hist. To lose one's free law . This phrase refers
to falling, by crime or infamy, from the status of libera
lex. By what was known as a "villenous judgment," a
person would be discredited as juror and witness, would
forfeit goods and chattels and lands for life, would have
his houses razed and trees uprooted, and would go to
prison. This was the ancient punishment ofa conspira
tor and of a party involved in a wager of battle who
cried "craven." Also termed amittere liberam legem;
amittere legem terrae ("to lose the law ofthe land"). See
VILLENOUS JUDGMENT.
libera piscaria (lib-ar-i1 pis-kair-ee-o). See free fishery
under FISHERY (1).
liberare (lib-i1-rair-ee), vb. 1. Civil law. To set (a person)
free. 2. Hist. To deliver or transfer (a writ, etc.).
liberari facias (lib-J-rair-ee fay-shee-as). [Law Latin
"that you cause to be delivered"] Hist. A writ ofexecu
tion ordering a sheriff to seize the debtor's unsalable
real property and deliver it to the creditor to satisfy the
creditor's claim. Cf. LEVARI FACIAS; FIERI FACIAS.
tiber assisarum (h-bi1r as-I-zair-Jm), n. [Law Latin
"Book ofAssizes"] Hist. A collection of cases arising
in assizes and other country trials . It was the fourth
volume of the reports of the reign ofEdward III.
liberate (lib-J-ray-tee), n. [Law Latin] Hist. 1. A chancery
writ to the Exchequer ordering the payment of an
annual pension or other sum. 2. A writ to the sheriff
authoriZing delivery ofany property given as bond and
then taken when a defendant forfeited a recognizance.
3. A writ to a jailer ordering delivery ofa prisoner who
had paid bail. 4. A writ to a sheriff commanding him to
deliver to the plaintiff lands or goods pledged as part of
a commercial trade loan arrangement (a statute staple)
available in certain merchant towns in England. Ifa
debtor defaulted on this obligation, the creditor could
obtain a writ of extent, which directed the sheriff to
take an inventory and entitled the creditor to keep the
debtor's property for a time until the rentals on the
property equaled the amount due. The writ of liberate
was issued after the inventory had been performed
under the writ of extent. See EXTENT; STAPLE (1), (2).
liberate, vb. (17c) To set (a person) free, as from slavery,
bondage, or hostile controL
liberatio (lib-J-ray-shee-oh), n. [Law Latin] Hist. Money
paid for the delivery or use of a thing; a payment.
1001 liberty
liberatio legata (lib-d-ray-shee-oh ld-gay-t<l). See
LEGATGM LIBERATIONIS.
liberation. (15c) 1. The act or an instance of freeing
someone or something. 2. Civil law. Final payment
under a contract, thereby extinguishing the debt.
liberation movement. Int'llaw. An organized effort
to achieve the political independence of a particular
nation or people.
liberatio nominis (lib-<l-ray-shee-oh nahm-d-nis).
[Latin] Roman law. The discharge ofa debt.
Hberative, adj. Serving or tending to free or release.
liberative prescription. See PRESCRIPTION.
Liber Authenticorum (h-bdr aw-then-tdkor-<lm). [Latin]
Roman law. A translated, unabridged collection oOus
tinian's Greek Novels, assembled between A.D. 535 and
556. This collection is distinguished from the similar
work, the Epitome JuZiani. -Also termed Authenti
cum.
libera warrena (lib-ar-a wor-ee-n<l). See free warren
under WARREN.
liber bancus (II-bar bang-bs). See FREE BENCH.
liber et legalis homo (II-bar et b-gay-Iis). See LEGALIS
HOMO.
liberi (lib-ar-I), n. pl. [Latin] Roman law. 1. Children.
2. Descendants . In the praetorian rules of intestate
succession, liberi were the first rank ofclaimants, com
prising the sui heredes of the Twelve Tables, and some
others, such as emancipated children. C |
com
prising the sui heredes of the Twelve Tables, and some
others, such as emancipated children. Cf. LEGITIMI
HEREDES.
liberis nascituris (lib-ar-is nas-d-t[yJuur-is). [Latin] Hist.
To children yet to be born. The phrase usu. referred
to designations made in marriage contracts,
liber iudiciorum. See LEX VISIGOTHORUM.
liber judicia lis ofAlfred (II-bar joo-dish-ee-ay-lis), n,
[Law Latin] See DOOMBOOK.
liber niger (II-bar nI-jaf), n. [Latin "black book") Hist
An ancient record, such as the register in the Exchequer
and the register of charters ofabbeys and cathedrals.
Liber Niger Parvus (h-baf nI-j<lr pahr-vas). See BLACK
BOOK OF THE EXCHEQUER.
Uber ruber scaccarii (h-b<lr roo-bar ska-kair-ee-I), n.
[Law Latin) Hist. Red book ofthe Exchequer. This was
an ancient register ofthe names ofthose holding land
per baroniam during the reign ofHenry II.
libertas (Ii-bar-tas or lib-ar-tas), n. [Latin "liberty,
freedom") Hist. A privilege Of franchise.
libertas ecclesiastica (Ii-b.lt-tas e-klee-z[hlee-as-ti-b),
n. [Law Latin "church liberty") Hist. Immunity from
secular law, enjoyed by the church and the clergy, who
are subject to ecclesiastical law . This immunity was
created in Magna Carta (1215).
libertatibus allocandis (lib-ar-tay-td-bas al-d-kan-dis).
See DE LIBERTATIBUS ALLOCANDIS. libertatibus exigendis in itinere (lib-ar-tay-ta-bas ek-sa
jen-dis in I-tin-a-ree), n. [Latin] Hist. A writ from the
king to one ofa panel ofitinerant judges (the justices in
eyre) ordering them to admit an attorney to represent
a criminal defendant. See EYRE.
! tiberti (Ii-bar-tI), n. pI. [Latin) Roman law. Manumitted
slaves, considered in their relation with their former
masters, who were known as patrons. Cf, INGENUUS;
LIBERTINL
libertidde (ia-b3f-t<l-sId), n. 1. The destruction ofliberty.
2. A destroyer ofliberty. liberticidal, adj.
liberties. Hist, 1. Privileged districts exempt from the
sheriff's jurisdiction. 2. In American colonial times,
laws. 3. Political subdivisions ofPhiladelphia.
libertini (lib-ar-tl-m), n. pl. [Latin) Roman law. See
LATINI JUNIANI.
liberty. (14c) 1. Freedom from arbitrary or undue external
restraint, esp. by a government <give me liberty or give
me death>. 2. A right, privilege, or immunity enjoyed
by prescription or by grant; the absence ofa legal duty
imposed on a person <the liberties protected by the
Constitution>. [Cases: Constitutional Law ~1079,
3873.]
"[Liberty] denotes not merely freedom from bodily restraint
but also the right of the individual to contract, to engage
in any of the common occupations of life, to acquire
useful knowledge, to marry, establish a home and bring
up children, to worship God according to the dictates of
his own conscience, and generally to enjoy those privileges
long recognized at common law as essential to the orderly
pursuit of happiness by free men." Mever v. Nebraska, 262
U.S. 390, 399, 43 S.O. 625, 626 (1923).
''The sphere of my legal liberty is that sphere of activity
within which the law is content to leave me alone." John
Salmond, Jurisprudence 239 (Glanville L. Williams ed., 10th
ed. 1947).
'The word liberty has become a symbol around which
have clung some of the most generous human emotions.
We have been brought up to thrill with admiration at the
men who say, Give me liberty or give me death. But the
philosopher asks whether all those who are devoted to
liberty mean the same thing. Does liberty or freedom, for
instance, involve free trade? Does it involve freedom to
preach race hatred or the overthrow of all that we regard
as sacred? Many who believe in liberty characterize the
freedom which they are not willing to grant, as license,
and they do it so often that one may be inclined to think
that what we really need is less liberty and more license.
Moreover, there is a confUSion between the absence of
legal restraint and the presence of real freedom as positive
power to do what we want. The legal freedom to earn a
million dollars is not worth a cent to one who has no real
opportunity. It is fashionable to assert that men want
freedom above all other things, but a strong case may be
made out for the direct contrary. Absolute freedom is just
what people do not want ...." Morris R. Cohen, Reason
and Law 101-02 (1961).
civil liberty. See CIVIL LIBERTY.
individual liberty. See personal liberty,
natural liberty. (16c) The power to act as one wishes,
without any restraint or control, unless by nature.
'This natural liberty ... being a right inherent in us by
birth .... But every man, when he enters into society, gives
up a part of his natural liberty, as the price of so valuable
a purchase; and, in consideration of receiving the advan
tages of mutual commerce, obliges himself to conform to
those laws, which the community has thought proper to
establish." 1 William Blackstone, Commentaries on the Laws
ofEngland 121 (1765).
personal liberty. (16c) One's freedom to do as one
pleases, limited only by the government's right to
regulate the public health, safety, and welfare. -Also
termed individual liberty. [Cases: Constitutional Law
<:>1079.]
political liberty. (17c) A person's freedom to participate
in the operation of government, esp. in elections and
in the making and administration oflaws.
religious liberty. (17c) Freedom -as guaranteed by
the First Amendment to express, without external
control other than one's own conscience, anv or no
system of religiOUS opinion and to engage in or'refrain
from any form of religiOUS observance or public or
private religiOUS worship, as long as it is consistent
with the peace and order of society. [Cases: Consti
tutional Law <:> 1290-1428.]
Liberty Clause. (1971) The Due Process Clause in the
14th Amendment to the u.s. Constitution. See DUE
PROCESS CLAUSE. [Cases: Constitutional Law (:=3840
4841.]
liberty interest. See INTEREST (2).
liberty not. See NO-DUTY.
liberty of a port. Marine insurance. A license incorpo
rated in a marine policy allowing the vessel to dock
and trade at a designated port other than the principal
port ofdestination.
liberty ofcontract. See FREEDOM OF CONTRACT.
liberty of speech. See FREEDOM OF SPEECH.
liberty ofthe globe. Marine insurance. A license incor
porated in a marine policy authorizing the vessel to
go to any part of the world, rather than be confined
to a particular port of destination. [Cases: Insurance
C=>2214.]
liberty of the press. See FREEDOM OF THE PRESS.
liberum maritagium (lib-ar-am mar-a-tay-jee-am). See
FRANKMARRIAGE.
liberum servitium (lib-ar-am sar-vish-ee-am), n. [Law
Latin] See SERVITIUM LIBERUM.
liberum socagium (lib-ar-am sok-ay-jee-;.!m), n. [Law
Latin] See free socage under SOCAGE.
liberum tenementum (lib-ar-;.!m ten-a-men-t;.!m), n.
[Law Latin] Hist. 1. A plea offreehold; a defensive com
mon-law pleading in an action for trespass to lands.
-The defendant pleaded either ownership ofthe land
in question or authorization from the freehold owner.
[Cases: Trespass <:>27.] 2. FREEHOLD.
liberum veto. See VETO.
LIBOR. abbr. See LONDON INTERBANK OFFERED RATE.
libra (II-br;.!), n. [Latin] Hist. An English pound; a sum
of money equal to a pound sterling. PI. librae. libra arsa (II-br;.! ahr-s;.!), n. [Law Latin] Hist. A pound
melted to test its purity.
libra numerata (h-br;.! n[y]oo-m;.!-ray-tJ), n. [Law Latin]
Hist. A pound of money that has been counted.
libra pensa (II-bra pen-sa), n. [Law Latin] Hist. A
pound ofmoney by weight.
librarian. Parliamentary law. An officer charged with
custody of an organization's books, periodicals, and
other published matter, and sometimes ofthe organi
zation's own archives and files as well.
Library of Congress. A library on the U.S. Capitol
grounds responsible for conducting research for
members of Congress and congressional committees.
_ The Library maintains collections of materials that in
many areas are the world's most extensive. Headed by
a Librarian appointed by the President with the advice
and consent ofthe Senate, it was established in 1860. 2
USCA 131 et seq.
libripens (lib-ra-penz), n. [Latin] Roman law. A person
who holds a bronze balance during actual or ritual
sales, such as the ceremonies of emancipating a son
from his father or conveying important property; a
scale-holder. -The purchaser strikes the balance with a
piece ofbronze to symbolize completion of the sale. Ihe
seller then receives the bronze as a sign of the purchase
money. See MANCIPATION.
liceity. (ll-say-tee or li-) Ecclesiastical law. The legality
ofan act, esp. ofa sacrament. -Liceity is distinguished
from validity in ecclesiastical law. Although an act or
some part ofit may be illegal, its pertormance or effects
may be valid. For example, Roman Catholic law requires
that the Eucharist be celebrated with unleavened wheat
bread. Ifleavened bread is used, the bread would be an
illegal substance, but the sacrament's validity would
not be affected.
license, n. (15c) 1. A permission, usu. revocable, to
commit some act that would otherwise be unlawful;
esp., an agreement (not amounting to a lease or profit aprendre) that it is lawful for the licensee to enter the
licensor's land to do some act that would otherwise
be illegal, such as hunting game. See SERVITUDE (1).
[Cases: Licenses
"[Allicense is an authority to do a particular act, or series
of acts, upon another's land, without possessing any estate
therein. It is founded in personal confidence, and is not
assignable, nor within the statute of frauds." 2 James
Kent, Commentaries on American Law *452-53 (George
Comstock ed., 11th ed. 1866).
2. The certificate or document evidencing such permis
sion. -license, vb.
artistic license. An open-source license that prohibits
the sale of modified software unless it is included in
a package with other software.
bare license. (I7c) A license in which no property
interest passes to the licensee, who is merely not a
trespasser. -It is revocable at will. Also termed
naked license; mere license. [Cases: Copyrights and
Intellectual Property (:=48.]
blanket license. Copyright. A license granted by a per
forming-rights society, such as ASCAP or BMI, to use
all works in the society's portfolio in exchange for a
fixed percentage of the user's revenues.
box-top license. See shrink-wrap license.
BSD license. A form of open-source license that allows
users to incorporate the source code into proprietary
products as long as the names of the original creator
or contributors are not used to endorse or promote
the products without permission . It was originally
created for the Berkeley Software Distribution oper
ating system developed at the University of Califor
nia. Also termed BSD-style license.
click-wrap license. See POINT-AND-CLICK AGREE
MENT.
compulsory license. 1. Copyright. A statutorily created
license that allows certain parties to use copyrighted
material without the explicit permission of the copy
right owner in exchange for a specified royalty. -Also
termed equitable remuneration. [Cases: Copyrights
and Intellectual Property (~48.l..] 2. Patents. A
statutorily created license that allows certain people
to pay a royalty and use an invention without the pat
entee's permission . \Vhile some nations currently
recognize compulsory licenses, the United States
never has.
cross-license. Patents. An agreement between two or
more patentees to exchange licenses tor their mutual
benefit and use of the licensed products. [Cases:
Patents <::=206.]
distribution license. A marketing license, usu.limited
by geography.
exclusive license. (l8c) A license that gives the licensee
the sole right to pertorm the licensed act, often in a
defined territory, and that prohibits the licensor from
performing the licensed act and from granting the
right to anyone else; esp., such a license of a copy
right, patent, or trademark right. [Cases: Patents (;:::>
211(1).]
general-public license. See open-source license.
implied license. A royalty-free license arising from a
property owner's conduct regarding another person's |
-source license.
implied license. A royalty-free license arising from a
property owner's conduct regarding another person's
use of the property even though the owner has not
expressly consented to the property's use . In a
patent context, tor example, the circumstances sur
rounding the conduct give rise to an affirmative grant
ofconsent or permission to infringe a patent's claims.
For example, the conduct of a patentee who encour
ages the manufacture of infringing products may be
construed as an implied license to use the patent.
An implied license may also arise when a patentee
authorizes the sale or express grant of a license to a
buyer, who then resells the license to a third party; the
third party is the patentee's implied licensee. [Cases:
Patents <::=210.]
implied license by acquiescence. An implied license
that arises from the patentee's tacit or passive acceptance of or implied consent to an otherwise
infringing act.
implied license by conduct. An implied license based
on the patentee's course of conduct, including
language, from which another person could properly
infer that the patentee consented to the other's use of
the patent. See implied license by equitable estoppel;
implied license by legal estoppel.
implied license by equitable estoppel. An implied
license usu. based on the patentee's failure to take
timely action to enforce patent rights against an
infringer after objecting to the infringer's actions,
thereby misleading the infringer to believe that the
patentee will not act. See A.C. Aukerman Co. v. R.L.
Chaides Constr. Co., 960 F.2d 1020, 1042-43 (Fed.
Cir.1992).
implied license by legal estoppel. An implied license
usu. based on the patentee's broadcast grant ofa right
or interest that cannot be derogated by the patentee's
later acts.
label license. A notice on an item's package granting
the purchaser a license to practice the process by
using the item without additional payments to the
licensor.
license coupled with an interest. (1836) An irrevocable
license in real estate that confers the right (not the
mere permission) to perform an act or acts upon the
property; esp., a license incidental to the ownership
of an interest in a chattel located on the land with
respect to which the license exists . This type of
license is considered an interest in the land itself. An
injunction may be obtained to prevent the wrongful
revocation of such a license. -Also termed license
coupled with the grant ofan interest. [Cases: Licenses
e:.-.::>43, 58(2).]
"A licence may be coupled with some interest in the land
or chattels thereon. Thus the right to enter another man's
land to hunt and take away the deer killed, or to cut down
a tree and remove it, involves the grant of an interest in
the deer or tree and also a licence annexed to it to come
on the land. The interest must be a recognised interest in
the property, and it must have been validly created. Thus
at law a right to take game or minerals, being a profit a
prendre, must have been created by deed or prescription,
whereas no formalities are required for the grant of a right
to take away chattels, such as felled or cut hay. Equity will
give effect to a specifically enforceable agreement to grant
an interest, so that a licence coupled with a profit aprendre
granted merely in writing but for value may be protected by
injunction." Robert E. Megarry & M.P. Thompson, A Manual
of the Law of Real Property 428 (6th ed. 1993).
limited license. A license that is narrow in scope or
narrower than another license granted for the same
purpose, or a license subject to conditions or limita
tions.
mechanical license. A grant of the right to produce and
release a copyrighted work in exchange for a royalty
based on the number of units manufactured and
sold. [Cases: Copyrights and Intellectual Property
(;:::>48.]
mere license. See bare license.
1004 license bond
Mozilla public license. An open-source license that
allows software users to modify and publicly dis
tribute the software, but requires users to release
the changed software under the same copyright as
the original source code, and to release all claims to
patent rights . The Mozilla public license was devel
oped for the Netscape and Netscape Communicator
browsers but is not limited to use with them. -Abbr.
MPL.
naked license. 1. A license allowing a licensee to use
a trademark on any goods and services the licensee
chooses. [Cases: Trademarks C:=> 1208.J 2. See bare
license.
nonexclusive license. A license of intellectual-prop
erty rights that gives the licensee a right to use, make,
or sell the licensed item on a shared basis with the
licensor and possibly other licensees.
nonmetered license. Patents. An agreement to allow a
patent's use in exchange for a flat percentage ofsales,
regardless ofhow much the patent is actually used .
The Supreme Court rejected a nonmetered license as
patent misuse, saying the buyer has a right to insist
on paying only for actual use. Zenith Radio Co. v.
Hazeltine Research, Inc., 395 U.S. 100, 89 S.Ct. 1562
(1969). See PATENT-MISUSE DOCTRINE. (Cases: Patents
(:::=>218(5).]
off-sale license. A state-issued permit to sell alcoholic
beverages that may be taken away from and consumed
off the premises. Also termed off-premises license.
Cf. on-sale license. [Cases: Intoxicating Liquors
59.]
on-sale license. A state-issued permit to sell alcoholic
beverages to be consumed on the premises only.
Also termed on-premises license. Cf. off-sale license.
[Cases: Intoxicating Liquors C:=>S9.]
open-source license. A license that allows open-source
software users to copy, distribute, or modify the
source code, and publicly distribute derived works
based upon the source code. -Open-source licenses
usu. do not require royalty or other fees on distri
bution. The license typically reqUires a user who
redistributes original or modified software that was
received under an open-source license to provide
the original license terms, including all disclaimers,
to all future users, and to distribute the source code
with any machine-executable software. It is unclear
who has the right or power to enforce the terms ofan
open-source license. Sometimes termed general
public license. [Cases: Copyrights and Intellectual
Property C:=> 107.]
proprietary license. A license that restricts a software
user's ability to copy, distribute, or modify the
software.
shrink-wrap license. (1984) A license printed on the
outside of a software package to advise the buyer
that by opening the package, the buyer becomes
legally bound to abide by the terms of the license .
Shrink-wrap licenses usu. seek to (1) prohibit users from making unauthorized copies of the software, (2)
prohibit modifications to the software, (3) limit use of
the software to one computer, (4) limit the manufac
turer's liability, and (5) disclaim warranties. Also
written shrinkwrap license. Also termed box-top
license; tear-me-open license. See POINT-AND-CLICK
AGREEMENT. [Cases: Copyrights and Intellectual
Property C=' 107.]
site license. Copyright. A software license that allows
a company to install a set number of copies on indi
vidual computers within the company.
synchronization license. A license to reproduce and
synchronize a copyrighted musical composition with
visual images that are not covered by the musical
work's copyright. _ Synchronization rights are
commonly associated with audiovisual productions,
such as music videos or movies. [Cases: Copyrights
and Intellectual Property C:;)48, 107.]
tear-me-open license. See shrink-wrap license.
use-based license. An open-source software license
to which the user assents by acting according to the
license's terms, namely by using, modifying, or dis
tributing the licensed software . Unlike a point-and
click agreement, the user does not have to expressly
declare acceptance of the license terms before using
the software. [Cases: Copyrights and Intellectual
Property C:=> 107.]
license bond. See BOND (2).
license coupled with the grant ofan interest. See Ii cense
coupled with an interest under LICENSE.
licensee. (I864) 1. One to whom a license is granted.
2. One who has permission to enter or use another's
premises, but only for one's own purposes and not for
the occupier's benefit. _ The occupier has a duty to warn
the licensee ofany dangerous conditions known to the
occupier but unknown to the licensee. An example of
a licensee is a social guest. Cf. INVITEE; TRESPASSER.
[Cases: Licenses C:=>43.]
bare licensee. (1864) A licensee whose presence on the
premises the occupier tolerates but does not necessar
ily approve, such as one who takes a shortcut across
another's land. Also termed naked licensee; mere
licensee. [Cases: Licenses (::::;)43.]
licensee by invitation. (1894) One who is expressly
or impliedly permitted to enter another's premises
to transact business with the owner or occupant or
to perform an act benefiting the owner or occupant.
[Cases: Licenses C-"43.]
licensee by permission. (1894) One who has the owner's
permission or passive consent to enter the owner's
premises for one's own convenience, curiosity, or
entertainment. [Cases: Licenses C:=>43.]
licensee with an interest. See INVITEE.
mere licensee. See bare licensee.
naked licensee. See bare licensee.
1005
license fee. 1. A monetary charge imposed by a govern
mental authority for the privilege of pursuing a par
ticular occupation, business, or activity. -Also termed
license tax. [Cases: Licenses 2. A charge of this
type accompanied by a requirement that the licensee
take some action, or be subjected to regulations or
restrictions. [Cases: Licenses 0=> 1.]
license in amortization. Hist. A license authorizing the
conveyance of property otherwise invalid under the
statutes ofmortmain. See MORTMAIN.
licenser. See LICENSOR.
license tax. See LICENSE FEE (1).
licenSing. (15c) 1. The sale of a license authorizing
another to use something (such as computer software)
protected by copyright, patent, or trademark. [Cases:
Copyrights and Intellectual Property 0=>48; Patents
0=>206; Trademarks 1202.] 2. A governmental
body's process of issuing a license. -Also termed
licensure. [Cases: Licenses 0=> I.]
licensor. One who grants a license to another. -Also
spelled licenser. [Cases: Licenses
licensure. See LICENSING (2).
licentia (li-sen-shee-d), n. [fro Latin licere "to be lawful")
Hist. License; permission.
licentia concordandi (li-sen-shee-<l kon-kor-dan-dI),
n. [Law Latin "license to agree"] Hist. One of the
proceedings on levying a fine of lands. See CONGE
D'ACCORDER.
'The licentia concordandi, or leave to agree the suit. For,
as soon as the action is brought, the defendant knowing
himself to be in the wrong, is supposed to make over
tures of peace and accommodation to the plaintiff. Who,
accepting them, but having, upon suing out the writ, given
pledges to prosecute his suit, which he endangers if he now
deserts it without license, he therefore applies to the court
for leave to make the matter up." 2 William Blackstone,
Commentaries on the Laws of England 350 (1766).
licentia loquendi (li-sen-shee-<lloh-kwen-dI). [Latin
"license to speak"] See IMPARLANCE.
licentia surgendi (li-sen-shee-<l S<lr-jen-dI), n. [Law Latin
"license to arise"] Hist. Permission or writ from the
court to a tenant in a real action to get out ofbed and
appear in court, following the tenant's earlier plea of
inability to appear because ofillness that confined the
tenant to bed. The tenant could lose the case by default
for falsely claiming illness. See DE MALO; ESSOIN.
licentiate (h-sen-shee-<lt), II. (16c) One who has obtained
a license or authoritative permission to exercise some
function, esp. to practice a profession <a licentiate in
law should be held to high ethical standards>.
licentia transfretandi. See DE LICENTIA TRANS
FRETANDI.
licentious (lI-sen-sh<ls), adj. (16c) Lacking or ignoring
moral or legal restraint, esp. in sexual activity; lewd;
lascivious. -licentiousness, n.
licere (li-seer-ee), vb, [Latin] Roman law. To be allowed
by law . The stipulation habere licere guaranteed the
buyer indemnity from eviction. liege lord
liceri. See LICITARI.
licet (II-set or IiS-;lt). [Latin] Hist. 1. It is permitted; it is
lawful. 2. It is conceded; it is granted.
licit (lis-it), adj. (15c) Not forbidden by law; permitted;
legal. licitly, adv.
licitari (Iis-<l-tair-ee), vb. [Latin] Roman law. To bid for
an item, esp. repeatedly during the same sale |
<l-tair-ee), vb. [Latin] Roman law. To bid for
an item, esp. repeatedly during the same sale. -Also
termed liceri.
licitation (lis-<l-tay-sh;ln). (l7c) 1. The offering for sale or
bidding for purchase at an auction; esp., in civil law, a
judicial sale of property held in common. See La. Civ.
Code art. 811. [Cases: Husband and Wife 0=>272(4),
272(5); Partition C:,-o99.] 2. CANT.
licitator (lis-<l-tay-t<lr), n. [Latin] Roman law. The bidder
at a sale.
lictor (lik-tdr), n. [Latin] Roman law. An officer who
accompanied a magistrate having imperium and tra
ditionally carried a bundle of rods and an ax, symbol
izing the magistrate's powers oflife and death and of
corporal punishment over citizens. See IMPERIUM.
Lidford law (lid-f<lrd). Hist. A form oflynch law permit
ting a person to be punished first and tried later. The
term took its name from the English town of Lidford
(now Lydford) where this type of action supposedly
took place. Cf. Jedburgh justice under JUSTICE (1).
lie, vb. (bef. 12c) 1. To tell an untruth; to speak or write
falsely <she lied on the witness stand>. See PERJURY. Cf.
FABRICATE. [Cases: PerjuryC=)12.j2. To havefounda
tion in the law; to be legally supportable, sustainable,
or proper <in such a situation, an action lies in tort>. 3.
I To exist; to reside <final appeal lies with the Supreme
Court>.
Lieber Code. A codification of rules and customs of
warfare, which set out the humane and ethical treat
ment of persons . It was first developed by Francis
Lieber during the American Revolution, formally
adopted as law by Abraham Lincoln during the Civil
War, and used as the basis for the first codified inter
national rules oflaw at The Hague Peace Conference of ! 1899. The rules were extended and refined in another
! Hague convention in 1907, and became known as the
Law ofThe Hague. See LAW OF THE HAGUE.
lie detector. See POLYGRAPH.
liege (Ieej), adj. (14c) Hist. 1. Entitled to feudal alle
giance and service. 2. Bound by feudal tenure to a lord
paramount; owing allegiance and service. 3. Loyal;
! faithful. Also termed ligius.
I liege, n. Hist. 1. A vassal bound to feudal allegiance.
! Also termed liege man; liege woman. 2. A loyal subject of
a monarch or other sovereign. 3. A feudal lord entitled
to allegiance and service; a sovereign or superior
lord. -A]so termed (in sense 3) liege lord.
liegeance. See LIGEANCE.
liege homage, n. Hist. Homage paid by one sovereign to
another, including pledges ofloyalty and services.
liege lord, n. Hist. See UEGE (3).
liege man, n. Hist. See LIEGE (1).
liege poustie (leej pow-steel. [Law French "liege power"
fro Latin legitima potestas "lawful power"] Scots law. The
lawful power ofone in good health, as a result ofwhich
the person might dispose of heritable property . The
phrase often appeared attributively, as in liege poustie
conveyance. Cf. LEGITIMA POTESTAS.
"LIEGE POUSTIE; is that state of health which gives a person
full power to dispose mortis causa, or otherwise, of his
heritable property, The term, according to our institutional
writers, is derived from the words legitima potestas, signi
fying the lawful power of disposing of property at pleasure.
It is used in contradistinction to deathbed -a liege poustie
conveyance being a conveyance not challengeable on the
head of deathbed .... The tests of liege poustie, opposed
to the presumption of deathbed, are survivance during
sixty days, and going to kirk or market unsupported:
William Bell, Bell's Dictionary and Digest of the Law Of
Scotland 662 (George Watson ed., 7th ed. 1890).
"[AI liege poustie conveyance being one not challengeable
by the heir on the ground of death-bed. This condition of
health the granter of a deed was held to have enjoyed, if at
the time of granting it he was not affected by the disease
of which he died, or if, after executing it, he attended kirk
or market, unsupported, or survived for sixty days." John
Trayner, Trayner's Latin Maxims 329 (4th ed. 1894).
lieger, n. Archaic. See LEDGER (2).
liege subject. See natural-born subject under SUBJECT.
liege woman, n. Hist. See LIEGE (1).
lie in franchise, vb. Hist. (Of wrecks, waifs, strays, etc.)
to be seizable without judicial action.
lie in grant, vb. Hist. (Of incorporeal hereditaments) to
be passable by deed or charter without the ceremony
oflivery ofseisin.
lie in livery, vb. Hist. (Of corporeal hereditaments) to be
passable by livery ofseisin rather than by deed.
lien (leen or lee-;:m), n. (16c) A legal right or interest that
a creditor has in another's property, lasting usu. until
a debt or duty that it secures is satisfied . Typically,
the creditor does not take possession of the property
on which the lien has been obtained. Cf. PLEDGE (3).
[Cases: Liens -lien, vb. lienable, liened,
adj.
accountant's lien. The right ofan accountant to retain
a client's papers until the accountant's fees have been
paid.
agent's lien. A lien against property of the estate, in
favor ofan agent, to secure the agent's compensation
as well as all necessary expenses incurred under the
agent's power. [Cases: Principal and Agent C='J 90.]
agister's lien (~-jis-t<lrz). A lien on the animals under
an agister's care, to secure payment ofthe agister's fee.
See AGISTER; AGISTMENT. [Cases: Animals (;:=-26.J
agricultural lien. 1. A statutory lien that protects a
seller offarming equipment by giving the seller a lien
on crops grown with the equipment. [Cases: Agricul
ture C= 10.]2. Secured transactions. An interest (other
than a security interest) in farm products having three
characteristics: (1) it must secure payment or perfor
mance ofan obligation for goods or services furnished in connection with a debtor's farming operation, or
of an obligation for rent on real property leased by
a debtor in connection with farming; (2) it must be
created by statute in favor of a person either who in
the ordinary course ofbusiness furnished goods or
services to a debtor in connection with the debtor's
farming, or who leased real property to a debtor in
connection with the debtor's farming; and (3) the
effectiveness of the interest must not depend on the
person's possession of the personal property. VCC
9-102(a)(5).
architect's lien. A statutory lien on real property in
favor ofan architect who has drawn the plans for and
supervised the construction ofimprovements on the
property. [Cases: Mechanics' Liens (;:=-36.]
artisan's lien. See mechanic's lien.
attachment lien. A lien on property seized by prejudg
ment attachment. Such a lien is initially inchoate but
becomes final and perfected upon entry ofa judgment
for the attaching creditor and relates back to the date
when the lien first arose. -Also termed lien ofattach
ment. See ATTACHMENT. [Cases: Attachment (;:=-177;
Federal Civil Procedure (;:=-589.]
attorney's lien. The right of an attorney to hold or
retain a client's money or property (a retaining lien) or
to encumber money payable to the client (a charging
lien) until the attorney's fees have been properly
determined and paid. [Cases: Attorney and Client
(;::::171.]
banker's lien. The right ofa bank to satisfy a custom
er's matured debt by seizing the customer's money or
property in the bank's possession. [Cases: Banks and
Banking (;:=-134, 136.)
blanket lien. A lien that gives a creditor the entitlement
to take possession of any or all of the debtor's real
property to cover a delinquent loan.
carrier'sUen. A carrier's right to retain possession of
cargo until the owner of the cargo pays its shipping
costs. [Cases: Carriers (;:=-197.]
charging lien. 1. An attorney's lien on a claim that the
attorney has helped the client perfect, as through a
judgment or settlement. [Cases: Attorney and Client
(;:=-171.]2. A lien on specified property in the debtor's
possession.
chattel lien. See mechanic's lien.
choate lien (koh-it). A lien in which the lienholder, the
property, and the monetary amount are established so
that the lien is perfected and nothing else needs to be
done to make it enforceable. [Cases: Internal Revenue
(;:=-4781; Liens (;:=-1, 12.]
common-law lien. 1. A lien granted by the common
law, rather than by statute, equity, or agreement by
the parties. [Cases: Liens (;:::) 1.] 2. The right of one
person to retain possession ofproperty belonging to
another until certain demands ofthe possessing party
are met. This type oflien, unlike an equitable lien,
cannot exist without possession.
1007
concurrent lien. One of two or more liens of equal
priority attaching to the same property.
construction lien. See mechanic's lien.
consummate lien (kan-s<lm-it). A judgment lien
arising after the denial of a motion for a new trial.
Cf. inchoate lien.
conventional lien. A lien that is created by the express
agreement of the parties, in circumstances in which
the law would not create a lien.
deferred lien. A lien effective at a future date, as dis
tinguished from a present lien that is currently pos
sessory.
demurrage lien (di-m<lr-ij). A carrier's lien on goods
for any unpaid demurrage charges. See DEMURRAGE.
[Cases: Shipping (';:;:> 185.]
dragnet lien. A lien that is enlarged to cover any addi
tional credit extended to the debtor by the same
creditor. [Cases: Secured Transactions C-::::> 114.J
equitable lien. A right, enforceable only in equity,
to have a demand satisfied from a particular fund
or specific property, without having possession of
the fund or property . It arises mainly in four cir
cumstances: (1) when an occupant of land, believ
ing in good faith to be the owner of that land, makes
improvements, repairs, or other expenditures that
permanently increase the land's value, (2) when one !
of two or more joint owners makes expenditures of i
that kind, (3) when a tenant for life completes per- i
manent and beneficial improvements to the estate I
begun earlier by the testator, and (4) when land or i
other property is transferred subject to the payment
of debts, legacies, portions, or annuities to third
persons. Also termed equitable levy. [Cases: Liens
(:::::: 7.]
execution lien. A lien on property seized by a levy of
execution. Such a lien gives the execution creditor
priority over later transferees of the property and
over prior unrecorded conveyances of interests in
the property. See EXECUTION (3). [Cases: Execution
(';:;:>106.]
factor's lien. A lien, usu. statutory, on property held on
consignment by a factor . It allows the factor to keep
possession of the property until the account has been
settled. See DCC 9-102(2). See FACTOR (2). lCases: !
Factors
first lien. A lien that takes priority over all other
charges or encumbrances on the same property and
that must be satisfied before other charges may share
in proceeds from the property's sale.
floating lien. 1. A lien that is expanded to cover any
additional property obtained by the debtor while the
debt is outstanding. [Cases: Secured Transactions
C=-J 116.] 2. A lien that continues to exist even when
the collateral changes in character, classification, or
location. -Also termed floating charge.
garnishment lien. A lien on a debtor's property held
by a garnishee . Such a lien attaches in favor ofthe lien
garnishing creditor when a garnishment summons is
served and also impounds any credits the garnishee
owes the debtor so that they must be paid to the gar
nishing creditor. Also termed lien ofgarnishment.
See GARNISHMENT. [Cases: Federal Civil Procedure
C-'-:::)609; Garnishment (';:;:> 106.J
general lien. A possessory lien by which the lienholder
may retain any of the debtor's goods in the lienhold
er's posseSSion until any debt due from the debtor,
whether in connection with the retained goods or oth
erwise' has been paid . Factors, insurance brokers,
packers, stockbrokers, and bankers have a general lien
over the property of their clients or customers. Cf.
particular lien.
"The usage of any trade sufficient to establish a general
lien, must ... have been so uniform and not |
particular lien.
"The usage of any trade sufficient to establish a general
lien, must ... have been so uniform and notorious, as to
warrant the inference that the party against whom the right
is claimed had knowledge of it. This general lien may also
be created by express agreement; as, where one or more
persons give notice that they will not receive any property
for the purpose of their trade or bUSiness, except on condi
tion that they shall have a lien upon it, not only in respect
to the charges arising on the particular goods, but for the
general balance of account. All persons who afterwards
deal with them, with the knowledge of such notice, will be
deemed to have acceded to that agreement." 2 James Kent,
Commentaries on American Law *637 (George Comstock
ed., 11 th ed. 1866).
grantor's lien. See vendor's lien (1).
healthcare lien. A statutory lien asserted by an HMO,
insurer, medical group, or independent practice asso
ciation against those liable to the patient for damages,
to recover money paid or claim money payable for
healthcare services proVided under a healthcare
service plan or a disability insurance policy. -Also
termed medical lien. Cf. hospital lien; workers'-com
pensation lien.
hospital lien. A statutory lien asserted by a hospital to
recover the costs of emergency and ongoing medical
and other services. lhe lien applies against any
judgment, compromise, or settlement received by
a hospital patient either from a third person who
caused the patient's injuries or from the third person's
insurer. See healthcare lien. [Cases: Health ~961.]
hotelkeeper's lien. A possessory or statutory lien
allowing an innkeeper to hold, as security for
payment, personal property that a guest brought into
the hotel. Also termed innkeeper's lien. [Cases: Inn
keepers (';:;:> 13.]
inchoate lien (in-koh-it). A judgment lien that may be
defeated if the judgment is vacated or a motion for
new trial is granted. Cf. consummate lien.
innkeeper's lien. See hotelkeeper's lien.
involuntary lien. A lien arising without the debtor's
consent.
judgment lien. A lien imposed on a judgment debtor's
nonexempt property . This lien gives the judgment
creditor the right to attach the judgment debtor's
property. -Also termed lien ofjudgment. See EXEMPT
1008 lien
PROPERTY. [Cases: Federal Civil Procedure
Judgment (;::>752-802.J
judicial lien. A lien obtained by judgment, levy, seques
tration, or other legal or equitable process or pro
ceeding . Ifa debtor is adjudged to owe money to a
creditor and the judgment has not been satisfied, the
creditor can ask the court to impose a lien on specific
property owned and possessed by the debtor. After
the court imposes the lien, it usu. issues a writ direct
ing the local sheriff to seize the property, sell it, and
turn over the proceeds to the creditor. [Cases: Federal
Civil Procedure Judgment (;::>752.]
junior lien. A lien that is subordinate to one or more
other liens on the same property.
laborer's lien. See mechanic's lien.
landlord's lien. 1. At common law, a lien that gave a
landlord the right to seize a tenant's property and sell it
publicly to satisfy overdue rent. See DISTRESS. 2. Gen
erally, a statutory lien on a tenant's personal property
at the leased premises in favor of a landlord who
receives preferred-creditor status on that property .
Such a lien usu. secures the payment ofoverdue rent
or compensation for damage to the premises. [Cases:
Landlord and Tenant (;::>239-257.]
lien ofattachment. See attachment lien.
lien offactor at common law. Hist. A lien not created by
statute; a common-law lien. [Cases: Factors C;:;)47.]
lien ofgarnishment. See garnishment lien.
lien ofjudgment. See judgment lien.
manufacturer's lien. A statutory lien that secures
payment for labor or materials expended in produc
ing goods for another.
maritime lien. A lien on a vessel, given to secure the
claim ofa creditor who provided maritime services to
the vessel or who suffered an injury from the vessel's
use. Also termed tacit hypothecation. [Cases:
Maritime Liens
"The maritime lien has been described as one of the most
striking peculiarities of Admiralty law, constituting a charge
upon ships of a nature unknown alike to common law and
equity. It arises by operation of law and exists as a claim
upon the property, secret and invisible. A maritime lien
may be defined as: (1) a privileged claim, (2) upon maritime
property, (3) for service done to it or injury caused by it,
(4) accruing from the moment when the claim attaches, (5)
travelling with the property unconditionally, (6) enforced
by means of an action in rem." Griffith Price, The Law of
Maritime Liens 1 (1940).
mechanic's lien. A statutory lien that secures payment
for labor or materials supplied in improving, repair
ing, or maintaining real or personal property, such as
a building, an automobile, or the like. Also termed
artisan's lien; chattel lien (for personal property); con
struction lien (for labor);garageman's lien (for repaired
vehicles); laborer's lien (for labor); materialman's lien
(for materials). [Cases: Bailment (;::>'18(2); Mechan
ics' Liens (;::> 1.]
medical lien. See healthcare lien. mortgage lien. A lien on the mortgagor's property
securing the mortgage. [Cases: Mortgages <8::::145.]
municipal lien. A lien by a municipal corporation
against a property owner for the owner's proportion
ate share of a public improvement that specially and
indiVidually benefits the owner. [Cases: Municipal
Corporations (;::>519.J
particular lien. A possessory lien by which the pos
sessor of goods has the right to retain specific goods
until a debt incurred in connection with those goods
has been paid. - Also termed special lien. Cf. general
lien.
"A general lien is the right to retain the property of another,
for a general balance of accounts; but a particular lien is
a right to retain it only for a charge on account of labor
employed or expenses bestowed upon the identical
property detained. The former is taken strictly. but the
latter is favored in law. The right rests on principles of
natural equity and commercial necessity, and it prevents
circuitry of action, and gives security and confidence, ..." 2
James Kent, Commentaries on American Law *634 (George
Comstock ed., 11th ed. 1866),
possessory garageman's lien. A lien on a vehicle in
the amount of the repairs performed by the garage.
[Cases: Automobiles (;::>374.]
possessory lien. A lien allOWing the creditor to keep
possession of the encumbered property until the
debt is satisfied . A power of sale mayor may not
be combined with this right ofpossession. Examples
include pledges of chattels, the liens of innkeepers,
garageman's liens, and vendor's liens. See PLEDGE.
prior lien. A lien that is superior to one or more other
liens on the same property, usu. because it was per
fected first. Also termed priority lien.
retaining lien. An attorney's right to keep a client's
papers until the client has paid for the attorney's
services . The attorney's retaining lien is not rec
ognized in some states. [Cases: Attorney and Client
C=>: 171, 182(3).]
second lien. A lien that is next in rank after a first lien
on the same property and therefore is next entitled to
satisfaction out of the proceeds from the property's
sale.
secret lien. A lien not appearing ofrecord and unknown
to purchasers; a lien reserved by the vendor and kept
hidden from third parties, to secure the payment of
goods after delivery.
senior lien. A lien that has priority over other liens on
the same property.
special lien. See particular lien.
specific lien. A lien secured on a particular thing by a
contract or by a judgment, execution, attachment, or
other legal proceeding.
statutory lien. 1. A lien arising solely by force ofstatute,
not by agreement of the parties . Examples are
federal tax liens and mechanic's liens. 2. Bankruptcy.
Either of two types of liens: (1) a lien arising solely
by force of a statute on specified circumstances or
1009
conditions, or (2) a lien ofdistress for rent, whether or
not statutory . For bankruptcy purposes, a statutory
lien does not include a security interest or judicial
lien, whether or not the interest or lien arises from
or is made effective by a statute. [Cases; Bankruptcy
(;:::>2580,2583.]
superlien. See SUPERLIEN.
tax lien. 1. A lien on property, and all rights to property,
imposed by the federal government for unpaid federal
taxes. [Cases; Internal Revenue ~4765-4806.]2. A
lien on real estate in favor of a state or local govern
ment that may be foreclosed for nonpayment of taxes.
A majority of states have adopted the Uniform
Federal Tax Lien Registration Act. [Cases: Taxation
~2730, 3553, 3696.]
vendee's lien. Real estate. A buyer's lien on the pur
chased land as security for repayment of purchase
money paid in, enforceable if the seller does not or
cannot convey good title. [Cases: Vendor and Pur
chaser (;:)337.)
vendor's lien. 1. Real estate. A seller's lien on land as
security for the purchase price . This lien may be
foreclosed in the same way as a mortgage: the buyer
usu. has a redemption period within which to pay
the full purchase price. -Also termed grantor's lien.
[Cases: Vendor and Purchaser (;:::>246.]2. A lien held
by a seller of goods, who retains possession of the
goods until the buyer has paid in full. [Cases; Sales
(;:::300.]
voluntary lien. A lien created with the debtor's
consent.
warehouser's lien. A lien covering storage charges for
goods stored with a bailee. -Also termed warehouse
man's lien. [Cases: Warehousemen ~29.]
workers'-compensation lien. 1. A statutory lien,
asserted by a health care provider, to recover the costs
ofemergency and ongoing medical and other services.
The lien applies against any workers' -compensation
benefits paid to a patient. [Cases: Workers' Compen
sation ~986.1 2. A statutory lien, asserted by a
workers' -compensation insurance carrier, against an
insured worker's recovery from a third-party tortfea
sor, to recover benefits paid to the injured worker.
Also termed workers'-compensation subrogation lien.
Cf. healthcare lien. [Cases: Workers' Compensation
(;:=2252.]
lienable, adj. (Of property) legally amenable to a lien;
capable ofbeing subject to a lien.
lien account. See ACCOUNT.
lien avoidance. Bankruptcy. A debtor's depriving a
creditor of a security interest in an asset of the bank
ruptcyestate. 11 USCA 506(d), 522(f). [Cases: Bank
ruptcy~2571-2588, 2784.]
lien creditor. See CREDITOR.
lienee (Ieen-ee or lee-dn-ee). 1. One whose property is
subject to a lien. 2. An encumbrancer who holds a lien;
LIENHOLDER. lieutenant commander
"[AJ mortgagee is the owner of the property. while a
pledgee or other lienee is merely an encumbrancer of it."
John Salmond, Jurisprudence 440 (Glanville l. Williams ed.,
10th ed. 1947).
lienholder. (1830) A person having or owning a lien.
Also termed lienor; lienee.
lien of a covenant. (1916) The beginning portion of a
covenant, stating the names ofthe parties and the char
acter of the covenant.
lien ofattachment. See attachment lien under LIEN.
lien offactor at common law. See LIEN.
lien ofgarnishment. See garnishment lien under LIEN
lien of judgment. See judgment lien under LIEN.
lienor. See LIENHOLDER.
lien-stripping. Bankruptcy. The practice of splitting a
mortgagee's secured claim into secured and unsecured
components and reducing the claim to the market value
of the debtor's residence, thereby allowing the debtor
to modify the terms of the mortgage and reduce the
amount ofthe debt. The U.S. Supreme Court has pro
hibited lien-stripping in all Chapter 7 cases (Nobelman
v. American Savs. Bank, 508 U.S. 324, 113 S.Ct. 2106
(1993 and in Chapter 13 cases involving a debtor's
principal residence (Dewsnup v. Timm, 502 U.S. 410,
112 S.Ct. 773 (1992), and the Bankruptcy Reform Act
of 1994 modified the Bankruptcy Code to prohibit lien
stripping in Chapter 11 cases involving an individual's
principal residence. [Cases: Bankruptcy (;::: |
stripping in Chapter 11 cases involving an individual's
principal residence. [Cases: Bankruptcy (;:::c2575.j
lien theory. (1882) The idea that a mortgage resembles
a lien, so that the mortgagee acquires only a lien on
the property and the mortgagor retains both legal
and equitable title unless a valid foreclosure occurs .
Most American states commonlv called lien states,
lien jurisdictions, or lien-theory ju;isdictions -have
adopted this theory. Cf. TITLE THEORY. [Cases: Mort
gages C-=> 136.]
Hen waiver. See WAIVER (2).
lieu conus (I [y]oo kon-yoo), n. [Law French] Hist. A place
generally known and noticed by those in the area ofit,
such as a castle or manor.
lieu land. See LAND.
lieutenancy. The rank, office, or commission ofa lieuten
ant. See COMMISSION OF LIEUTENANCY.
lieutenant. (14c) 1. A deputy ofor substitute for another;
one acting by vicarious authority <he sent his chief lieu
tenant to the meeting>. 2. A composite part ofthe title
ofmany government and military officials who are sub
ordinate to others, esp. when the duties of the higher
official may devolve to the subordinate <lieutenant
governor>. 3. In the U.S. Army, a commissioned officer
next below captain. 4. In the u.s. Navy, an officer next
below lieutenant commander.
lieutenant colonel. (16c) In the U.S. military, an officer
next below colonel and above major.
lieutenant commander. (1839) In the U.S. Navy, an
officer next below commander and above lieutenant.
1010 lieutenant general
lieutenant general. (16c) In the u.s. Army, an officer
next below four-star general and above major general.
lieutenant governor. (16c) A deputy or subordinate
governor, sometimes charged with such duties as pre
siding over the state legislature, but esp. important as
the governor's successor if the governor dies, resigns,
or becomes disabled. [Cases: States (;::::>42.]
life annuity. See ANNUITY.
life beneficiary. See BENEFICIARY.
life-care contract. (1950) An agreement in which one
party is assured of care and maintenance for life in
exchange for transferring property to the other party.
Cf. CORODY.
life estate. See ESTATE (1).
life estate pur autre vie. See ESTATE (1).
life expectancy. 1. The period that a person ofa given age
and sex is expected to live, according to actuarial tables.
[Cases: Evidence (:::;;364.] 2. The period that a given
person is expected to live, taking into account indi
vidualized characteristics such as heredity, past and
present diseases, and other relevant medical data. See
ACTUARIAL TABLE; LIFE TABLE. [Cases: Death
life-hold. See life land under LAND.
Hfe in being. (1836) Under the rule against perpetuities,
anyone alive when a future interest is created, whether
or 'not the person has an interest in the estate. See IN
BEING; RULE AGAINST PERPETUITIES. Cf. MEASURING
LIFE. [Cases: Perpetuities
life-income periodcertain annuity. See ANNUITY.
life insurance. (1809) An agreement between an insur
ance company and the policyholder to pay a specified
amount to a designated beneficiary on the insured's
death. Also termed (in Britain) assurance. See
ASSURANCE (2). [Cases: Insurance 1011.]
"Life and accident insurance has been defined as a contract
whereby one party. for a stipulated consideration, agrees to
indemnify another against injury by accident or death from
any cause not excepted in the contract. Strictly speaking,
however, a contract of life insurance is not one of indem
nity, but is an absolute engagement to pay a certain sum
at the end of a definite or indefinite time." 43 Am. Jur. 2d
Insurance 3 (1982).
corporate-owned life insurance. A life-insurance
policy bought by a company on an employee's life,
naming the company as beneficiary. Abbr. COLI.
credit life insurance. Life insurance on a borrower, usu.
in a consumer installment loan, in which the amount
due is paid if the borrower dies. [Cases: Insurance
(;::::> 101 L]
decreasing-term life insurance. See decreasing term
insurance under INSURANCE.
endowment life insurance. Life insurance that is
payable either to the insured at the end of the policy
period or to the insured's beneficiary if the insured
dies before the period ends. Also termed endow
ment insurance. industrial life insurance. Life insurance characterized
by (1) a small death benefit (usu. $2,000 or less), (2)
premium payments that are due weekly, biweekly,
or monthly and that are collected at home by the
insurer's representative, and (3) no required medical
examination ofthe insured. -Sometimes shortened
to industrial insurance.
joint life insurance. (1920) Life insurance on two or
more persons, payable to the survivor or survivors
when one ofthe policyholders dies.
key-employee life insurance. Life insurance taken out
by a company on an essential or valuable employee,
with the company as beneficiary. Also termed key
employee insurance; key-man insurance; key-person
insurance; key-executive insurance. [Cases: Insurance
(:::;;, 1791(5).]
last-survivor life insurance. Life insurance on two
or more persons, payable after all the insureds have
died. -Also termed last-survivor insurance.
limited-payment life insurance. Life insurance that
requires premium payments for less than the life of
the agreement.
national-service life insurance. Life insurance avail
able to a person in active U.S. military service on or
after October 8, 1940, and issuable at favorable rates.
This insurance was established by the National
Service Life Insurance Act of 1940, and is regulated
by the Administrator of Veterans Affairs. 38 USCA
1901-1929. [Cases: Armed Services
ordinary life insurance. 1. Life insurance having an
investment-sensitive cash value, such as whole life
insurance or universal life insurance. Ordinary
insurance is one ofthree main categories oflife insur
ance. -Often shortened to ordinary insurance. Cf.
group insurance; industrial life insurance. 2. See whole
life insurance.
partnership life insurance. See partnership insurance
(1) under INSURANCE.
single-premium life insurance. Life insurance that
is paid for in one installment rather than a series of
premiums over time. -Also termed single-premium
insurance. [Cases: Insurance G::::)2014.]
split-dollar life insurance. An arrangement between
two people (often an employer and employee) by
which life insurance is written on the life of one,
though both share the premium payments. On the
insured's death or other event terminating the plan,
the noninsured person receives the cash value ofthe
insurance as reimbursement, and the beneficiary
named by the insured is entitled to the remainder.
Also termed split-dollar insurance. [Cases: Insurance
(;::::> 1011,2037.]
straight life insurance. See whole life insurance.
term life insurance. Life insurance that covers the
insured for only a specified period . It pays a fixed
benefit to a named beneficiary upon the insured's
death but is not redeemable for a cash value during
1011
the insured's life. Cf. whole life insurance. [Cases:
Insurance <.':;=> 1011,2037,2425.]
universal life insurance. Term life insurance in which
the premiums are paid from the insured's earnings
from a money-market fund. [Cases: Insurance <.r':::J
1011.]
variable life insurance. Life insurance in which the
premiums are invested in securities and whose
death benefits thus depend on the securities' perfor
mance, though there is a minimum guaranteed death
benefit.
whole life insurance. Life insurance that covers an
insured for life, during which the insured pays fixed
premiums, accumulates savings from an invested
portion of the premiums, and receives a guaranteed
benefit upon death, to be paid to a named beneficiary.
Such a policy may provide that at a stated time,
premiums will end or benefits will increase. -Also
termed ordinary life insurance; straight life insurance.
Cf. term life insurance. [Cases: Insurance 1011,
2037.]
life-insurance trust. See TRUST.
life interest. (I8c) An interest in real or personal property
measured by the duration of the holder's or another
named person's life. See life estate under ESTATE (1).
[Cases: Life Estates (:::::> 1.]
life land. See LAND.
lifelode. See LIVELODE.
life of a writ. The effective period during which a writ
may be levied . That period usu. ends on the day
that the law or the writ itself provides that it must be
returned to court.
life-owner. See LIFE TENANT.
life peerage. English law. The grant of the noble title of
baron to a person for life, offered through letters patent.
The Life Peerages Act of 1958 first allowed this and
removed the disqualifications of women from serving
in the House of Lords. See PEER.
life policy. See INSURANCE POLICY.
life-prolonging procedure. See LIFE-SUSTAINING PRO
CEDVRE.
life-qualified jury. See JURY.
lifer. See NONREMOVABLE INMATE.
liferent. Scots law. The right to use and enjoy during
a lifetime the property of another (the fiar) without
consuming its substance. Also spelled life-rent. See
VSUFRVCT.
liferentrix. Archaic. A woman who has a liferent.
life sentence. See SENTENCE.
life settlement. See viaticai settlement under SETTLE
MENT.
life-sustaining procedure. (1976) A medical procedure
that uses mechanical or artificial means to sustain,
restore, or substitute for a vital function and that serves lighterage
only or mainly to postpone death. -Also termed life
prolonging procedure. [Cases: Health (:::::>913.J
life table. An actuarial table that gives the probable pro
portions of people who will live to different ages. Cf.
ACTVARIAL TABLE. [Cases: Death C'd65; EvidenceC=
364.]
life tenancy. See life estate under ESTATE (1).
life tenant. (16c) A person who, until death, is benefi
cially entitled to property; the holder ofa life estate.
Also termed tenant for life; life-owner. See life estate
under ESTATE (1). [Cases: Life Estates
equitable life tenant. (1880) A life tenant not automati
cally entitled to possession but who makes an election
allowed by law to a person of that status such as a
spouse and to whom a court will normally grant
posseSSion if security or an undertaking is given.
[Cases: Life Estates Cr'J 1,6.]
legal life tenant. (1886) A life tenant who is automati
cally entitled to possession by virtue ofa legal estate.
[Cases: Life Estates
lifetime gift. See inter vivos gift under GIFT.
LIFO (lI-foh). abbr. LAST-IN, FIRST-OUT.
lift, vb. (16c) 1. To stop or put an end to; to revoke or
rescind <lift the stay>. 2. To discharge or payoff (a debt
or obligation) <lift a mortgage>. [Cases: Mortgages
298(1).] 3. Slang. To steal <lift a purse>.
lifting costs. Oil & gas. The cost of producing oil and
gas after drilling is complete but before the oil and gas
is removed from the property, including transporta
tion costs, labor, costs ofsupervision, supplies, costs of
operating the pumps, electricity, repairs, depreciation,
certain royalties payable to the lessor, gross-production
taxes, and other incidental expenses.
liga (lee-ga), n. [Law Latin] Hist. A league or confedera
tion.
ligan (II-gan), n. See LAGAN .
ligare (la-gair-ee), vb. [Latin] Hist. 1. To tie or bind. 2.
To enter into a treaty or league.
ligea (lee-jee-a), n. [Law Latin] Rist. A female subject; a
liege woman. See LIEGE (1).
ligeance (II-jants or lee-jants). Rist. 1. The obedience of
a citizen to the citizen's sovereign or government; alle
giance. 2. The territory of a state or sovereign. -Also
spelled liegeance. See LIEGE. [Cases: International Law
(:::::> 10.3.J
"Uegeance is a true and faithful obedience of the subject
due to his sovereign; and this liegeance, which is an
incident inseparable to every subject, is in four manners;
the first is natural, the second acquired, the third local, and
the fourth legal." Termes de fa Ley280 (lst Am. ed. 1812).
ligen, n. See LAGAN.
ligeus (lee-jee-as), n. [Law Latin] Rist. A male subject; a
liege man. See LIEGE (1).
light-and-air easement. See EASEMENT.
lighterage (lI-tar-ij). 1. The loading and unloading of
goods between a ship and a smaller vessel, called a
1012 light most favorable
lighter, that is able to use a restricted port or dock.
[Cases: Shipping 134,141.] |
lighter, that is able to use a restricted port or dock.
[Cases: Shipping 134,141.] 2. The compensa
tion paid for this service. Shipping C=> 147.] 3.
The loading and unloading offreight between a railroad
car and a ship's side.
light most favorable. (1861) The standard of scrutiniz
ing or interpreting a verdict by accepting as true all
evidence and inferences that support it and disregard
ing all contrary evidence and inferences <in reviewing
the defendant's motion for judgment notwithstand
ing the verdict, the court reviewed the evidence in the
light most favorable to the verdict>. Also termed
most favorable light. [Cases: Federal Civil Procedure
C=>2543,2609.]
lights, ancient. See ANCIENT-LIGHTS DOCTRINE.
light work. See WORK (1).
ligia et non ligia (Hj-ee-a et non lij-ee-a). [Law Latin]
Scots law. Liege and nonliege. A liege fee was held
under the Crown while a nonliege fee was held under
a vassal ofthe Crown. See LIEGE.
ligius (lee-jee-as), n. [Law Latin] Hist. A person bound
to another by solemn relationship, as between subject
and sovereign. See LIEGE.
lignagium (lig-nay-jee-am), n. [Law Latin] Hist. 1. A
right to cut firewood. 2. The payment for this right.
ligula (lig-ya-lil), n. [Law Latin] Hist. A copy or transcript
ofa court roll or deed.
like, adj. (12c) 1. Equal in quantity, quality, or degree;
corresponding exactly <like copies>. 2. Similar or sub
stantially similar dike character>.
like-kind exchange. (1963) An exchange of trade,
business, or investment property (except inventory or
securities) for property ofthe same kind, class, or char
acter. Such an exchange is not taxable unless cash
or other property is received. IRC DSCA) 1031).
[Cases: Internal Revenue
like-kind property. (1946) Tax. Property that is ofsuch
a similar kind, class, or character to other property that
a gain from an exchange of the property is not recog
nized for federal income-tax purposes. See LIKE-KIND
EXCHANGE. [Cases: Internal Revenue (~3184.1
likelihood-of-confusion test. Trademarks. A test for
trademark infringement, based on the probability that
a substantial number ofordinarily prudent buyers will
be misled or confused about the source of a product.
[Cases: Trademarks C=> 1080.]
likelihood-of-success-on-the-merits test. Civil proce
dure. The rule that a litigant who seeks a preliminary
injunction, or seeks to forestall the effects ofa judgment
during appeal, must show a reasonable probability of
success in the litigation or appeal.
limbo time. The period when an employee is neither on
duty nor off duty, as a railroad worker awaiting trans
portation from a duty assignment to the place of final
release. 49 USC A 21l03(b)(4); Brotherhood ofLoco
motive Eng'rs v. Atchison, Topeka & Santa Fe R.R., 516
U.S. 152, 116 S.Ct. 595 (1996). limenarcha (lim-;m-ahr-ka), n. [Latin] Roman law. An
officer in charge ofa harbor or frontier post.
limine. See IN LIMINE.
limine out (lim-a-nee), vb. (1997) (Of a court) to exclude
(evidence) by granting a motion in limine <the trial
judge limined out most of the plaintiff's medical
records>.
limit, n. (14c) 1. A restriction or restraint. 2. A boundary
or defining line. 3. The extent ofpower, right, or author
ity. -limit, vb. limited, adj.
limitation. (14c) 1. The act oflimiting; the state ofbeing
limited. 2. A restriction. 3. A statutory period after
which a lawsuit or prosecution cannot be brought in
court. Also termed limitations period; limitation
period; limitation ofaction See STATUTE OF LIMITA
TIONS. Cf. LACHES. [Cases: Criminal LawC= 145.5-160;
Limitation ofActions C=>1.]4. Property. The restriction
ofthe extent ofan estate; the creation by deed or devise
ofa lesser estate out ofa fee Simple. See WORDS OF LIMI
TATION. [Cases: Deeds C=>124-134; Wills C=>616.]
collateral limitation. Hist. A limitation that makes
the duration ofan estate dependent on another event
(other than the life of the grantee), such as an estate
to A until B turns 21.
conditional limitation. (18c) 1. See executory limita
tion. 2. A lease provision that automatically termi
nates the lease if a specified event occurs, such as if
the lessee defaults. [Cases: Landlord and Tenant
103(1).]
executory limitation. (18c) A restriction that causes an
estate to automatically end and revest in a third party
upon the happening ofa specified event . This type
oflimitation, which was not recognized at common
law, can be created only as a shifting use or an execu
tory devise. It is a condition subsequent in favor of
someone other than the transferor. -Also termed
conditional limitation. See fee simple subject to an
executory limitation under FEE SIMPLE.
"When a condition subsequent is created in favor of
someone other than the transferor, the Restatement of
Property calls the condition subsequent an executory
limitation. It calls A's estate an estate in fee simple subject
to an executory limitation." Thomas F. Bergin & Paul G.
Haskell, Preface to Estates in Land and Future Interests 52
(2d ed. 1984).
limitation over. (17c) An additional estate created or
contemplated in a conveyance, to be enjoyed after the
first estate expires or is exhausted . An example of
language giving rise to a limitation over is "to A for
life, remainder to B. [Cases: Deeds C=>124-134.]
special limitation. (17c) A restriction that causes an
estate to end automatically and revert to the grantor
upon the happening ofa specified event. Seefee simple
determinable under FEE SIMPLE. [Cases: Deeds C=>
125, 126, 130.J
"[I]f a deed or will uses such words as 'for so long as,'
'while,' 'during,' or 'until' to introduce the circumstances
under which an estate may end prior to its running its
maximum course, it is generally assumed that a special
1013
limitation was intended," Thomas F. Bergin & Paul G.
Haskell, Preface to Estates in Land and Future Interests 50
(2d ed. 1984),
supplanting limitation. A limitation involving a sec
ondary gift that is expressed in a clause following the
original gift and that is typically introduced by the
words "but if," "and if," or "in case."
5. ELEMENT (2).
limitation of action. See LIMITATION (3).
limitation ofassize. Hist. A period prescribed by statute
within which a person is required to allege that the
person was properly seised oflands sued for under a
writ ofassize.
limitation-of-damages clause. (1933) A contractual
provision by which the parties agree on a maximum
amount of damages recoverable for a future breach
of the agreement. Cf. LIQUIDATED-DAMAGES CLAUSE.
[Cases: Damages (;:::>76.]
limitation-of-liabilityact. (1897) A federal or state law
that limits the type of damages that may be recov
ered, the liability of particular persons or groups, or
the time during which an action may be brought. See
FEDERAL TORT CLAIMS ACT; sovereign immunity under
IMMUNITY (1). [Cases: Shipping (;:::>203.]
limitation-of-remedies clause. (1974) A contractual
provision that restricts the remedies available to the
parties if a party defaults. _ Under the uec, such a
clause is valid unless it fails ofits essential purpose or it
unconscionably limits consequential damages. Cf. LIQ
UIDATED-DAMAGES CLAUSE; PENALTY CLAUSE. [Cases:
Contracts (;:::>206; Sales (;:::>418(6),426.]
limitation on indebtedness. See DEBT LIMITATION.
limitation period. See LIMITATION (3).
limitations, statute of. See STATUTE OF LIMITATIONS.
limitations period. 1. See LIMITATION (3). 2. See STATUTE
OF LIMITATIONS.
limit debate. Parliamentary law. To set a limit on how
long debate may continue, or on the number and length
of speeches. See DEBATE. Cf. CLOSE DEBATE; EXTEND
DEBATE.
limited administration. See ADMINISTRATION.
limited admissibility. See ADMISSIBILITY.
limited appeal. See APPEAL.
limited appearance. See special appearance under
APPEARANCE.
limited-capacity well. See WELL.
limited certiorari. See narrow certiorari under CERTIO
RARI.
limited company. See COMPANY.
limited court. See COURT.
limited debate. See DEBATE.
limited defense. See personal defense under DEFENSE
(4). limit of liability
limited-dividend housing association. An independent
entity formed by housing developers and used for bor
rowing funds from a public agency. -The developers
invest in the association, agree to limit the return on
their investment to a prescribed percentage, and rent
a defined portion of the housing units to persons of
low and moderate income. In exchange the govern
ment lender charges a below-market interest rate, sub
sidizes rents or interest rates, and may grant other tax
benefits.
limited divorce. See DIVORCE.
limited executor. See EXECUTOR.
limited fee. See base fee under FEE (2).
limited guaranty. See GUARANTY.
limited interdict. See INTERDICT (2).
limited interdiction. See partial interdiction under
INTERDICTION (3).
limited interpretation. See restrictive interpretation
under INTERPRETATION.
limited jurisdiction. See JURISDICTION.
limited liability. See LIABILITY.
limited-liability company. See COMPANY.
limited-liability corporation. See limited-liability
company under COMPANY.
limited-liability partnership. See PARTNERSHIP.
limited license. See LICENSE (2).
limited-market property. See special-purpose property
under PROPERTY.
limited member. See nonvoting member under
MEMBER.
limited monarchy. See MONARCHY.
limited owner. See OWNER.
limited partner. See PARTNER.
limited partnership. See PARTNERSHIP.
limited partnership association. See PARTNERSHIP
ASSOCIATION.
limited-payment life insurance. See LIFE INSURANCE.
limited policy. See INSURANCE POLICY.
limited-policy insurance. See INSURANCE.
limited power ofappointment. See POWER OF APPOINT
MENT.
limited publication. See PUBLICATION.
limited public forum. See deSignated public forum under
PUBLIC FORUM.
limited-purpose marriage. See MARRIAGE (1).
limited-purpose public figure. See PUBLIC FIGURE.
limited trust. See TRUST.
limited veto. See qualified veto under VETO.
limited voting. See VOTING.
limited warranty. See WARRANTY (2).
limit ofliability. See LIABILITY LIMIT.
limit order. See ORDER (8).
Lincoln's Inn. One of the Inns of Court. See INN OF
COURT (1).
Lindbergh Act. See FEDERAL KIDNAPPING ACT.
line, n. (14c) 1. A demarcation, border, or limit <the line
between right and wrong>. 2. A person's occupation or
business <what line of business is Watson in?>. 3. In
manufacturing, a series of closely related products. 4.
The ancestry ofa person; lineage <the Fergusons came
from a long line of wheat farmers>.
collateral line. (16c) A line of descent connecting
persons who are not directly related to each other as
ascendants or descendants, but who are descendants
ofa common ancestor. [Cases: Descent and Distribu
tion ~32,37.]
direct line. (17c) A line ofdescent traced through only
those persons who are related to each other directly
as ascendants or descendants. [Cases: Descent and
Distribution ~2S.1
maternal line. (17c) A person's ancestry or relationship
with another traced through the mother.
paternal line. (17c) A person's ancestry or relationship
with another traced through the father.
linea (lin-ee-J), n. [Latin "line"] Hist. A line ofdescent.
linea directa (lin-ee-J dJ-rek-tJ). [Latin "direct line"]
Roman law. The relationship among persons in the
direct line ofascent and descent, such as grandfather,
father, and son. -Also termed linea recta.
linea transversa (lin-ee-J trans-vJr-s-J). [Latin "trans
verse line"] Roman law. The relationship between
persons in collateral lines of descent, such as uncle
and nephew. -Also termed linea obliqua.
lineage (lin-ee-Jj). (14c) Ancestry and progeny; family,
ascending or descending.
lineal (lin-ee-JI), adj. (lSc) Derived from or relating to
common ancestors, esp. in a direct line; hereditary. Cf.
COLLATERAL (2). [Cases: Descent and Distribution ~
2S.]
lineal, n. (l8c) A lineal descendant; a direct blood
relative.
lineal ascendant. See ASCENDANT.
lineal consanguinity. See CONSANGUINITY.
lineal descendant. See DESCENDANT.
lineal descent |
lineal consanguinity. See CONSANGUINITY.
lineal descendant. See DESCENDANT.
lineal descent. See DESCENT.
lineal heir. See HEIR.
lineal warranty. See WARRANTY (1).
linea obliqua. See linea transversa under LINEA.
linea recta. See linea directa under LINEA.
line item. See ITEM.
line-item veto. See VETO.
line ofcredit. (1917) The maximum amount ofborrow
ing power extended to a borrower by a given lender, to be drawn upon by the borrower as needed. -Also
termed credit line.
line ofdemarcation. See DEMARCATION LINE.
line of title. See CHAIN OF TITLE (1).
lines and corners. See METES AND BOUNDS.
lineup. (191S) A police identification procedure in which
a criminal suspect and other physically similar persons
are shown to the victim or a witness to determine
whether the suspect can be identified as the perpetra
tor of the crime. -Also termed (in BrE) identification
parade. Cf. SHOWUP. [Cases: Criminal Law <::=339.8.]
Lingle test. Labor law. A test for determining whether a
union member's state-law claim against the employer
is preempted by the Labor-Management Relations
Act, the controlling principle being that if the state
law claim can be resolved without interpreting the
collective-bargaining agreement, then there is no pre
emption. Lingle v. Norge Division ofMagic Chef, Inc.,
486 U.S. 399, 108 S.Ct. 1877 (1988). See MARCUS MODEL;
WHITE MODEL.
linguistic profiling. Profiling based on vocal charac
teristics that suggest a speaker's race, sex, or national,
ethnic, or regional origin. This type of profiling
occurs when the speaker is not visible but can be heard,
as in a telephone conversation or voice message. Cf.
RACIAL PROFILING.
link, n. (1Sc) 1. A unit in a connected series; something
that binds separate things <link in the chain of title>.
2. A unit ofland measurement <one link equals 7.92
inches>. 3. See HYPERLINK.
link financing. See FINANCING.
link-in-chain principle. (1962) Criminal procedure. The
principle that a criminal defendant's Fifth Amendment
right against self-incrimination protects the defendant
not only from answering directly incriminating ques
tions but also from giving answers that might connect
the defendant to criminal activity in the chain of
evidence. [Cases: Criminal Law ~393.]
LIP. abbr. LEGALLY INCAPACITATED PERSON.
liquere (li-kweer-ee), vb. [Latin] Roman law. To be clear,
evident, or apparent. When a judex appointed to try
a civil case swore under oath sibi non liquere ("that it
was not clear to him"), he would be discharged from
deciding the case. See NON LIQUET.
liquid, adj. (1879) 1. (Of an asset) capable ofbeing readily
converted into cash. 2. (Of a person or entity) possess
ing assets that can be readily converted into cash.
liquid asset. See current asset under ASSET.
liquidate, vb. (l6c) 1. To settle (an obligation) by payment
or other adjustment; to extinguish (a debt). 2. To ascer
tain the precise amount of (debt, damages, etc.) by liti
gation or agreement. 3. To determine the liabilities and
distribute the assets of (an entity), esp. in bankruptcy or
dissolution. 4. To convert (a nonliquid asset) into cash.
5. To wind up the affairs of (a corporation, business,
etc.). 6. Slang. To get rid of (a person), esp. by killing.
1015
liquidated, adj. (18c) 1. (Of an amount or debt) settled
or determined, esp. by agreement. 2. (Of an asset or
assets) converted into cash.
liquidated account. See ACCOUNT.
liquidated amount. A figure readily computed, based
on an agreement's terms.
liquidated claim. See CLAIM (3).
liquidated damages. See DAMAGES.
liquidated-damages clause. (1873) A contractual pro
vision that determines in advance the measure of
damages if a party breaches the agreement . Tradi
tionally, courts have upheld such a clause unless the
agreed-on sum is deemed a penalty for one ofthe fol
lowing reasons: (1) the sum grossly exceeds the probable
damages on breach, (2) the same sum is made payable
for any variety ofdifferent breaches (some major, some
minor), or (3) a mere delay in payment has been listed
among the events ofdefault. Cf. LIMITATION-OF-REM
EDIES CLAUSE; PENALTY CLAUSE. [Cases: Damages
74-84.]
liquidated debt. See DEBT.
liquidated demand. See liqUidated claim under CLAIM
(3).
liquidating distribution. See DISTRIBUTION.
liquidating dividend. See liqUidation dividend under
DIVIDEND.
liquidating partner. See PARTNER.
liquidating price. See redemption price under PRICE.
liquidating trust. See TRUST.
liquidation, n. (16c) L The act ofdetermining by agree
ment or by litigation the exact amount ofsomething (as
a debt or damages) that before was uncertain. 2. The
act of settling a debt by payment or other satisfaction.
3. The act or process of converting assets into cash, esp.
to settle debts.
one-month liquidation. A special election, available to
certain shareholders, that determines how the distri
butions received in liquidation by electing sharehold
ers will be treated for federal income-tax purposes .
To qualify for the election, the corporation must be
completely liqUidated within one month. IRC 333.
partial liquidation. A liquidation that does not com
pletely dispose of a company's assets; esp., a liq
uidation occurring when some corporate assets
are distributed to shareholders (usu. on a pro rata
basiS) and the corporation continues to operate in a
restricted form. [Cases: Internal Revenue (::::::;3820.]
twelve-month liquidation. A liquidation occurring
within 12 months from adoption of the liqUidation
plan to complete liquidation, subject to a tax law pro
hibiting the company from recognizing any gains
or losses on property sold within that time frame.
Generally, inventory will not be included unless a
bulk sale occurs. IRC 337. [Cases: Internal Revenue
(::::::;3698,3711.] lis pendens
4. Bankruptcy. The process -under Chapter 7 of the
Bankruptcy Code ofcollecting a debtor's nonexempt
property, converting that property to cash, and distrib
uting the cash to the various creditors . Upon liqui
dation, the debtor hopes to obtain a discharge, which
releases the debtor from any further personal liability
for prebankruptcy debts. See CHAPTER 7. Cf. REHABILI
TATION (3). [Cases: Bankruptcy C;:)2251.]
liquidation bankruptcy. See CHAPTER 7 (2).
liquidation court. See COURT.
liquidation dividend. See DIVIDEND.
liquidation preference. See PREFERENCE.
liquidation price. See PRICE.
liquidation value. See VALL'E (2).
liquidator. (1858) A person appointed to wind up a busi
ness's affairs, esp. by selling offits assets. See LIQUIDA
TION (3), (4). Cf. RECEIVER.
liquid debt. See DEBT.
liquidity.!. The quality or state ofbeing readily convert
ible to cash. 2. Securities. The characteristic of having
enough units in the market that large transactions can
occur without substantial price variations . Most
stocks traded on the New York Stock Exchange, for
example, have liquidity.
liquidity ratio. The ratio between a person's or entity's
assets that are held in cash or liquid form and the
amount of the person's or entity's current liabilities,
indicating the ability to pay current debts as they come
due.
liquor offense. See OFFENSE (1).
lis (lis). [Latin] (17c) A piece of litigation; a controversy
or dispute.
lis alibi pendens (lis a!-J-bl pen-dJnz). [Latin] l. A
lawsuit pending elsewhere. 2. Hist. A preliminary
defense that a case involVing the same parties and
the same subject is pending in another court. See LIS
PENDENS.
lis estsopita (lis est sJ-pr-tJ). [Latin] Hist. The suit is con
cluded; the issues in a case are decided. -Also termed
lis estfin ita (lis est fi-nr-tJ).
lis mota (lis moh-tJ), n. [Latin "a lawsuit moved"] Hist.
A dispute that has begun and later forms the basis of
a lawsuit.
lis pendens (lis pen-dJnz). [Latin] (17c) 1. A pending
lawsuit. 2. The jurisdiction, power, or control
acquired by a court over property while a legal action
is pending. 3. A notice, recorded in the chain of title
to real property, required or permitted in some juris
dictions to warn all persons that certain property is
the subject matter oflitigation, and that any interests
acquired during the pendency of the suit are subject
to its outcome. Also termed (in sense 3) notice oflis
pendens; notice ofpendency. Cf. PENDENTE LITE. [Cases:
Lis Pendens (::::::;1, 12.1.]
list, n. (13c) 1. A roll or register, as ofnames. 2. A docket
of cases ready for hearing or trial. See CALENDAR (2);
DOCKET.
list, vb. (bef. 12c) 1. To set down or enter (information)
in a list. 2. To register (a security) on an exchange so
that it may be publicly traded. 3. To place (property)
for sale under an agreement with a real-estate agent
or broker.
listed security. See SECURITY.
listed security exchange. An organized secondary
security market operating at a designated location, such
as the New York Stock Exchange.
listed species. See candidate species under SPECIES (1).
listed stock. See listed security under SECURITY.
lister. A person authorized to compile lists of taxable
property for assessment and appraisal; an assessor.
listing. (1891) 1. Real estate. An agreement between a
property owner and an agent, whereby the agent agrees
to try to secure a buyer or tenant for a specific property
at a certain price and terms in return for a fee or com
mission. -Also termed listing agreement; authoriza
tion to sell. [Cases: Brokers C=:c40.]
exclusive-agency listing. A listing providing that one
agent has the right to be the only person, other than the
owner, to sell the property during a specified period.
Also termed exclusive listing; exclusive-authorization
to-sell listing. [Cases: Brokers C=:c40, 46.]
general listing. See open listing.
multiple listing. A listing providing that the agent will
allow other agents to try to sell the property . Under
this agreement, the original agent gives the selling
agent a percentage of the commission or some other
stipulated amount. [Cases: Brokers C=:c40, 66.]
net listing. A listing providing that the agent agrees to
sell the owner's property for a set minimum price,
any amount over the minimum being retained by the
agent as commission. -Also termed net sale contract.
[Cases: Brokers C=:c40.]
open listing. A listing that allows selling rights to be
given to more than one agent at a time, obligates the
owner to pay a commission when a specified broker
makes a sale, and reserves the owner's right to per
sonally sell the property without paying a commis
sion. -Also termed nonexclusive listing; general
listing; simple listing. [Cases: Brokers C=:c46.]
2. Securities. The contract between a firm and a stock
exchange by which the trading of the firm's securities
on the exchange is handled. See listed security under
SECURITY. [Cases: Exchanges C=:c 13.10.]
dual listing. The listing ofa security on more than one
exchange.
3. Tax. The creation of a schedule or inventory of a
person's taxable property; the list of a person's taxable
property. [Cases: Taxation C=:c2462, 2493.]
listing agent. See AGENT (2). listing agreement. See LISTING (1).
list of creditors. (1818) A schedule giving the names
and addresses of creditors, along with amounts owed
them. This list is required in a bankruptcy proceed
ing. [Cases: Bankruptcy C=:c2324.]
list price. See PRICE.
litem (h-tem or -t<:lm). See AD LITEM.
litem denuntiare (h-tem d<:l-n<:ln-shee-air-ee). [Latin
"to announce a suit"] Roman law. 1. The summoning
of a defendant by a magistrate exercising cognitio in
the late classical period. 2. The notification by a buyer
to the seller of a claim by a third party to the things
sold. -Also spelled litem denunciare. Cf. LITIS DENUN
TIATIO.
litem suam facere (h-tem s[y]oo-<:lm fay-s<:l-ree). [Latin
"to make a suit one's own"] Roman law. (Of a judex)
to fail in his official duty through imprudence, such
as not adhering to the formula, or not following due
procedure. This failure amounted to misconduct in
the judex's duties, and a litigant was given a private
action against him. The scope ofactionable misconduct
is not certain. It included not obeying the formula and
not adjourning the trial properly, but it may also have
included overt |
not certain. It included not obeying the formula and
not adjourning the trial properly, but it may also have
included overt acts of corruption, such as accepting
bribes.
lite pendente (h-tee pen-den-tee). [Latin] See PENDENTE
LITE.
litera (lit-<:lr-<:l), n. [Latin "letter"] Hist. 1. A letter. 2.
The letter of a law, as distinguished from its spirit. PI.
literae. -Also spelled littera. See LETTER (3).
literacy test. Hist. A test ofone's ability to read and write,
formerly required in some states as a condition for reg
istering to vote . Literacy tests were abused at various
times in United States history to preclude minorities
from exercising the right to vote. This practice was
prohibited by the Voting Rights Act of 1965.42 USCA
1971-1974. See South Carolina v. Katzenbach, 383
U.S. 301, 86 S.Ct. 8 (1966). [Cases: Elections C=:c59.]
literae mortuae (lit-<:lr-ee mor-choo-ee), n. [Latin] Hist.
Dead letters; filler words in a statute.
literae patentes (lit-<:lr-ee p<:l-ten-teez), n. [Latin "open
letters"] Hist. A public grant from the sovereign to
a subject, conferring the right to land, a franchise, a
title, liberty, or some other endowment. The modern
"patent" and, more closely, "letters patent" derive from
this term. See LETTERS PATENT (1).
'The term 'patent' is short for 'letters patent,' derived from
the Latin literae patentes, meaning open letters. Generally,
letters patent were letters addressed by the sovereign 'to
all whom these presents shall come,' reciting a grant of
some dignity, office, franchise, or other privilege that has
been given by the sovereign to the patentee.'" Donald S.
Chisum et aI., Principles of Patent Law 2 (1998).
literae procuratoriae (lit-<:lr-ee prok-p-r<:l-tor
ee-ee), n. [Law Latin] Hist. Letters of procuration;
letters of attorney; power of attorney. See POWER OF
ATTORNEY.
1017
literae recognitionis (lit-~r-ee rek-~g-nish-ee-oh-nis), n.
[Latin] Hist. A bill oflading. See BILL OF LADING.
literae sigillatae (lit-~r-ee sij-~-lay-tee), n. [Latin] Hist.
Sealed letters. _ A sheriff's return on a writ was often
called literae sigillatae.
literal, adj. (l6c) According to expressed language.
Literal performance ofa condition requires exact com
pliance with its terms.
literal canon. See strict constructionism under CON
STRUCTIONISM.
literal construction. See strict construction under CON
sTRucTION.
literal contract. See CONTRACT.
litera legis. See LETTER OF THE LAW.
literal infringement. See INFRINGEMENT.
literal interpretation. See strict construction under CON
STRUCTION.
literal proof. See PROOF.
literal rule. See strict constructionism under CONSTRUC
TIONISM.
literary, adj. Ofor relating to literature or other written
forms ofexpression.
literary composition. A written expression involv
ing mental effort, arranged in a purposeful order. Cf.
literary work under WORK (2). [Cases: Copyrights and
Intellectual Property C:)5.]
literary executor. See EXECUTOR.
literary property. 1. The physical property in which an
intellectual production is embodied, such as a book,
screenplay, or lecture. [Cases: Copyrights and Intellec
tual Property (~41.3.] 2. An owner's exclusive right
to possess, use, and dispose of such a production. See
COPYRIGHT; INTELLECTUAL PROPERTY. [Cases: Copy
rights and Intellectual Property C=)36.]
. literary work. See WORK (2).
literate, adj. (ISc) 1. Able to read and write a language.
2. Knowledgeable and educated. -literacy, n.
literatura (lit-;n-~-t[yluur-~). n. [Latin fr.litera "a letter"]
Hist. Education. _ Ad literaturam ponere means the
right to educate one's children, esp. male children.
During feudal times, servile tenants could not educate
their children without the lord's consent.
litigable (lit-<l-g<l-b<ll), adj. (l8c) Able to be contested or
disputed in court <litigable claims>. litigability, n.
litigant. (17c) A party to a lawsuit.
institutional litigant. See INSTITUTIONAL LITIGANT.
self-represented litigant. See PRO SE.
vexatious litigant. A litigant who repeatedly files frivo
low; lawsuits. _ Many jurisdictions have statutes or
local rules requiring a vexatious litigant to obtain
the court's permission to file any further lawsuits or
pleadings. The litigant may also be subject to sanc
tions. [Cases: Action G.'=:c 13; Injunction (;::::>26(4),
26(5).] litis contestatio
litigation, n. 07c) 1. The process ofcarrying on a lawsuit
<the attorney advised his client to make a generous set
tlement offer in order to avoid litigation>. 2. A lawsuit
itself <several litigations pending before the court>.
litigate, vb. -litigatory, litigational, adj.
complex litigation. Litigation involving several parties
who are separately represented, and usu. involving
multifarious factual and legal issues.
"What exactly is 'complex litigation'? The problem is that
no one really knows -or, more accurately perhaps, various
definitions don't agree. Complex civil litigation has an
'Iknow-itwhen-I-see-it' quality. Nearly everyone agrees
that matters like the massive asbestos litigation, the AT&T
antitrust suit, or the remedial phase of a school desegrega
tion case are complex. But trying to find a common thread
that both describes these cases and distinguishes them
from the run-of-themill car crash is difficult." Jay Tidmarsh
& Roger H. Transgrud, Complex Litigation 1 (2002).
litigation costs. See COST (3).
litigation hold. See HOLD.
litigation-hold letter. A writing that orders the segre
gation and retention of certain documents and data
that are or may be relevant to a threatened or pending
litigation or an official investigation.
internal litigation-hold letter. A litigation-hold letter
sent by a company, directly or through its attorneys,
to its own employees.
litigation privilege. See PRIVILEGE (1).
litigator. (16c) 1. A trial lawyer. 2. A lawyer who prepares
cases for trial, as by conducting discovery and pretrial
motions, trying cases, and handling appeals. 3. Archaic.
A party to a lawsuit; a litigant.
litigious (li-tij-<ls), adj. (14c) 1. Prone to legal disputes;
contentious <our litigious society>. 2. Archaic. Of
or relating to the subject of a lawsuit <the litigious
property>. 3. Archaic. Ofor relating to lawsuits; litiga
tory <they couldn't settle the litigious dispute>. liti
giousness, litigiosity (li-tij-ee-os<l-tee), n .
litigious right. Civil law. A right that cannot be exer
cised without first being determined in a lawsuit. La.
Civ. Code art. 2652. -Ifthe right is sold, it must be in
litigation at the time ofsale to be considered a litigious
right.
litis aestimatio (b-tis es-t<l-may-shee-oh). [Latin] Roman
law. The judicial estimate of the measure ofdamages.
litis contestatio (II-tis kon-tes-tay-shee-oh). [Latin] 1.
Roman law. The final agreement ofthe parties to a suit
on the formula the praetor would issue to the judex.
Also termed contestatio litis. See FORMULA.
"Both parties being present, or represented, before the
praetor, the plaintiff stated the nature of his claim and
asked for an action. It lay in the discretion of the praetor
to give or to refuse it. ... If, in the event, the praetor
refused any action at ali, or any action which the plaintiff
was willing to accept, the matter was at an end .... If.
on the other hand, subject to the direction and approval
of the praetor, the parties agreed upon the issues to be
referred ... [a] document framed in identical terms was
issued to the judex by the praetor as his authority to act.
This ceremonial in which three persons concurred (plain
tiff, defendant, praetor) was the litis contestatio." RoW. Lee,
The Elements of Roman Law 179-80 (4th ed. 1956).
2. Hist. A contested point in a lawsuit; a litigable issue
developed by the litigants' alternating statements. 3.
CONTESTATION OF SUIT.
litis denuntiatio (II-tis da-n;:m-s[h]ee-ay-shee-oh), n.
[Latin] Civil law. The process by which a land purchaser,
sued for possession of the land by a third party, notified
the land seller and demanded aid in defending the suit
under the seller's warranty oftitle. -Also spelled litis
denUllciatio. Cf. LITEM DENUNTIARE.
litis dominium (II-tis da-min-ee-am), 11. [Latin] See
DOMINUS LITIS.
litis ordinatio (II-tis or-di-nay-shee-oh). [Latin "the
order or regulation of a lawsuit" j Scots law. The form
under which a lawsuit is conducted.
litispendence (lI-tis-pen-dants). Archaic. The time
during which a lawsuit is pending.
litteris obligatio (lit-"r-is ob-ld-gay-shee-oh). [Latin]
Romall law. An obligation arising from formal, written
entries in account books; an obligation arising from a
literal contract. See literal contract under CONTRACT.
Little FTC Act. See UNFAIR TRADE PRACTICES AND
CONSUMER PROTECTION LAW.
littoral (lit-"r-al), adj. (17c) Ofor relating to the coast or
shore ofan ocean, sea, or lake <the littoral right to limit
others' consumption of the water>. Cf. RIPARIAN.
littoral, n.
tittus maris (lit-as mar-is) [Law Latin "shore ofthe sea"]
1. Ordinary tides or neap tides that occur between the
full moon and dark ofthe moon. 2. The shore between
the normal high-water and low-water marks.
litura (li-t[y)oor-<:l), n. [Latin] Roman law. A blot or
erasure in a will or other instrument.
livelihood. (ISc) A means ofsupporting one's existence,
esp. financially.
livelode. Archaic. Livelihood; maintenance. -Also
termed lifelode.
livery (liv-a-ree or liv-ree). (1Sc) 1. The delivery of the
possession of real property. Cf. DELIVERY. 2. Hist.
An heir's writ, upon reaching the age of majority, to
obtain seisin ofhis lands from the king. 3. The boarding
and care of horses for a fee. 4. A business that rents
vehicles.
livery in chivalry. Hist. The delivery ofpossession ofreal
property from a guardian to a ward in chivalry when
the ward reached majority.
livery office. An office designated for the delivery of
lands.
livery of seisin. Hist. The ceremony by which a grantor
conveyed land to a grantee . Livery ofseisin involved
either (1) going on the land and having the grantor sym
bolically deliver possession of the land to the grantee
by handing over a twig, a clod of dirt, or a piece of
turf (called livery in deed) or (2) going within Sight of
the land and having the grantor tell the grantee that possession was being given, followed by the grantee's
entering the land (called livery ill law). See INVESTI
TURE; SEISIN. [Cases: Deeds <8=>21.J
"[WJe may now pause to wonder how transfer of these
potentially infinite interests was accomplished. Without a
modern system of land records, it would be desirable that
the transfer be effected with sufficient ceremony not only
to mark itself indelibly in the memories of the participants,
but also to give notice to interested persons such as the
mesne lord above the transferor. The central idea was to
make ritual livery (meaning 'delivery,' from the Old French
livrer) of seisin (meaning, roughly, 'possession,' from the
Old French saisir or seisir). The transferor and transferee
would go to the land to be transferred, and the transferor
would then hand to the transferee a lump of soil or a twig
from a tree all the while intoning the appropriate words
of grant, together with the magical words 'and his heirs'
if the interest transferred was to be a potentially infinite
one." Thomas F. Bergin & Paul G. Haskell, Preface to Estates
in Land and Future Interests 10-11 (2d ed. 1984).
lives in being. See LIFE IN BEING.
livestock, 11. (18c) Domestic animals and fowls that (1) are
kept for profit or pleasure, (2) can normally be confined
within boundaries without seriously impairing their
utility, and (3) do not normally intrude on others' land
in such a way as to harm the land or growing crops.
Animals <8=> 1.5(5). |
' land
in such a way as to harm the land or growing crops.
Animals <8=> 1.5(5).)
live storage. The storage of cars in active daily use, rather
than cars put away for an extended period . A garage
owner's responsibility sometimes depends on whether a
car is in live or dead storage. Cf. DEAD STORAGE. [Cases:
Automobiles <8=>370.]
live thalweg. See THALWEG.
living, n. One's source ofmonetary support or resources;
esp., one's employment.
living separate and apart. (ISe) Of spouses) living
away from each other, along with at least one spouse's
intent to dissolve the marriage . One basis for no-fault
divorce in many states exists if the spouses have lived
apart for a specified period. -Sometimes shortened to
separate and apart. [Cases: Divorce 37; Husband
and Wife <8=>272(1).)
living-together agreement. See COHABITATION AGREE
MENT.
living trust. See inter vivos trust under TRUST.
living will. (1972) An instrument, signed with the for
malities statutorily required for a will, by which a
person directs that his or her life not be artificially pro
longed by extraordinary measures when there is no rea
sonable expectation ofrecovery from extreme physical
or mental disability . Most states have living-will leg
isiation. -Also termed declaration ofa desire for a
natural death; directive to physicians. See NATURAL
DEATH ACT; UNIFORM HEALTH-CARE DECISION ACT. Cf.
ADVANCE DIRECTIVE (1), (2); INSTRUCTION DIRECTIVE.
[Cases: Health <8=>916.J
L.J. abbr.!. Law Judge. 2. LAW JOURNAL. 3. LORD JUSTICE
OF APPEAL.
L.JJ. abbr. Lords justices. See LORD JUSTICE OF APPEAL.
L.L. abbr. LAW LATI~.
L.Lat. abbr. LAW LATIN.
LL.B. abbr. Bachelor of Laws. -This was formerly the law
degree ordinarily conferred by American law schools.
It is still the normal degree in British law schools. Cf.
JURIS DOCTOR.
L.L.c. See limited-liability company under COMPANY.
LL.D. abbr. DOCTOR OF LAWS.
LL.J. abbr. Lords justices. See LORD JUSTICE OF APPEAL.
LL.M. abbr. MASTER OF LAWS.
Lloyd's. See LLOYD'S OF LONDON.
Lloyd's association. See LLOYD'S UNDERWRITERS.
Lloyd's bond. See BOND (3).
Lloyd's insurance. See INSURANCE.
Lloyd's of London. Insurance.!. A London insurance
mart where individual underwriters gather to quote
rates and write insurance on a wide variety of risks.
2. A voluntary association of merchants, shipowners,
underwriters, and brokers formed not to write policies
but instead to issue a notice of an endeavor to members
who may individually underwrite a policy by assuming
shares ofthe total risk of insuring a client. _ The names
of the bound underwriters and the attorney-in-fact
appear on the policy. Also termed Lloyd's; London
Lloyd's. [Cases: Insurance ~1220.]
"[Ilt is not the corporation of Lloyd's which undertakes
insurance risks and enters into policies of insurance; that
is done by the individual members of Lloyd's, acting usually
in groups or 'syndicates,' which are not partnerships or
companies but merely fortuitous aggregations of, say.
five, ten, or more members represented in common by
one underwriting agent having power to bind them each
individually and separately to contracts of insurance. These
members are frequently referred to as 'names'; and their
agent is said to 'write' for them. If, as is commonly the
case, he also is a member of Lloyd's, then he will 'write'
for himself, too." 2 Stephen's Commentaries on the Laws of
Eng/and 237 (L Crispin Warmington ed., 21st ed. 1950).
Lloyd's underwriters. An unincorporated association
of underwriters who, under a common name, engage
in the insurance business through an attorney-in-fact
having authority to obligate the underwriters severally,
within specified limits, on insurance contracts that the
attorney makes or issues in the common name. Also
termed Lloyd's association; American Lloyd's. [Cases:
Insurance'C=> 1220.]
L.L.P. See limited-liability partnership under PARTNER
SHIP.
load, n. An amount added to a security's price or to an
insurance premium in order to cover the sales commis
sion and expenses <the mutual fund had a high front
end load>. -Also termed sales load; acquisition cost.
load factor. 1. The ratio of a utility customer's usage
levels during a given period compared to the custom
er's demand during peak periods. [Cases: Electricity
(':::::;, 1l.3.) 2. An analysis of the number of passengers
on an airplane or other common carrier compared to
available capacity.
load fund. See MUTUAL FUND. loading. Insurance. An amount added to a life-insurance
premium to cover the insurer's business expenses and
contingencies. -Also termed expense loading. See
gross premium (1) under PREMIUM (1). [Cases: Insur
ance ~2000, 2005.]
load line. Maritime law. 1. The depth to which a safely
loaded ship will sink in salt water. 2. One of a set of
graduated marks on the side of a ship, indicating the
depth to which the ship can be loaded in varying waters
(such as salt water or freshwater) and weather condi
tions. _ Load lines must, by law in most maritime coun
tries, be cut and painted amidships. -Also termed (in
sense 2) load-line marks; Plimsoll marks.
"The interest of shipowners led them, in early times, to load
vessels to a point beyond safety; the greater the weight
of the vessel's load, of course, the lower she rides in the
water, and the more vulnerable she is to heavy seas. Many
seamen consequently lost their lives. Britain led the way
in establishing standards of depth in the water believed to
be safe; Samuel Plimsoll, M.P. was the moving spirit, and
gave his name to the Plimsoli mark, now seen on the side
of all large vessels, which marks the limits of safety for
different seas and seasons. Since 1929, the United States
has made mandatory the placing of and compliance with
load line marks ...." Grant Gilmore & Charles L. Black Jr.,
The Law ofAdmiralty 11-12, at 987 (2d ed. 1975).
loadmanage. Hist. l. The fee paid to loadsmen, who sail
in small vessels acting as pilots for larger ships. 2. The
hiring of a pilot for a vessel. 3. A pilot's or loadsman's
skill. -Also spelled lodemanage; lode manage.
loadsman. Hist. 1. A person who directs a ship's course
from a small boat traveling in front of the larger ship
rather than from the ship itself. -The loadsmen had a
monopoly on piloting in the cinque ports. See CINQUE
PORTS. 2. A person who took the ship to a berth after a
pilot had brought it into port. Also spelled loadman;
lodeman; lodesman.
loan, n. (12c) 1. An act oflending; a grant of something
for temporary use <Turner gave the laptop as a loan,
not a gift>. [Cases: Contracts ~194.] 2. A thing lent
for the borrower's temporary use; esp., a sum ofmoney
lent at interest <Hull applied for a car loan>.
accommodation loan. (1834) A loan for which the
lender receives no consideration in return. See
ACCOMMODATION.
add-on loan. (1972) A loan in which the interest
is calculated at the stated rate for the loan agree
ment's full term for the full principal amount, and
then the interest is added to the principal before
installment payments are calculated, resulting in an
interest amount higher than if it were calculated on
the monthly unpaid balance. -Consumer loans are
typically add-on loans. -Also termed contract loan.
See add-on interest under INTEREST (3).
amortized loan. (1930) A loan calling for periodic
payments that are applied first to interest and then
to principal, as provided by the terms of the note. See
AMORTIZATION (1).
back-to-back loan. A loan arrangement by which two
firms lend each other funds denominated in different
currencies for a specified period . The purpose is
usu. to protect against fluctuations in the currencies'
exchange rates.
balloon loan. An installment loan in which one or more
of the later repayments are much larger than earlier
payments; esp., a loan featuring a string ofpayments
that are too small to amortize the entire loan within
the loan period, coupled with a large final lump-sum
payment of the outstanding balance.
below-market loan. See interest-free loan.
bridge loan. A short-term loan that is used to cover
costs until more permanent financing is arranged or
to cover a portion of costs that are expected to be
covered by an imminent sale. Also termed bridge
financing; swing loan.
broker call loan. See call loan.
building loan. A type ofbridge loan used primarily for
erecting a building . The loan is typically advanced
in parts as work progresses and is used to pay the
contractor, subcontractors, and material suppliers.
Also termed construction loan. See interim financing
under FINANCING.
call loan. (1869) A loan for which the lender can
demand payment at any time, usu. with 24 hours'
notice, because there is no fixed maturity date.
Also termed broker call loan; demand loan. Cf. term
loan. [Cases: Bills and Notes ("::=>129(3).J
character loan. A loan made in reliance on the borrow
er's character and stable earnings . Character loans
are usu. secured by a mortgage or by other property,
but sometimes they are unsecured.
clearing loan. A loan made to a bond dealer pending
the sale ofa bond issue.
collateral loan. See secured loan.
commercial loan. (1875) A loan that a financial institu
tion gives to a business, generally for 30 to 90 days.
commodity loan. A loan secured by a commodity (such
as cotton or wool) in the form ofa warehouse receipt
or other negotiable instrument
consolidation loan. (JS75) A loan whose proceeds
are used to payoff other individual loans, thereby
creating a more manageable debt.
construction loan. See building loan.
consumer loan. (1957) A loan that is given to an indi
vidual for family, household, personal, or agricultural
purposes and that is generally governed by truth-in
lending statutes and regulations. [Cases: Consumer
Credit~L]
contract loan. See add-on loan.
Crown loan. Tax. An interest-free demand loan, usu.
from parent to child, in which the borrowed funds are
invested and the income from the investment is taxed
at the child's rate. eThis type ofloan is named for one
Harry Crown of Chicago, reputedly one of the first
persons to use it. See kiddie tax under TAX. day loan. A short-term loan to a broker to finance daily
transactions.
demand loan. See call loan.
discount loan. A loan in which interest is deducted in
advance, at the time the loan is made.
doorstep loan. A loan offered by a door-to-door solici
tor, usu. for home repairs at a high interest rate and
under misleading or fraudulent terms . The term is
used primarily in the United Kingdom.
GI loan. See veteran's loan.
home-equity loan. (1984) A line of bank credit given
to a homeowner, using as collateral the homeown
er's equity in the home. Often shortened to equity
loan. -Also termed home-equity line ofcredit. See
EQUITY (7).
installment loan. (1916) A loan that is to be repaid in
usu. equal portions over a specified period.
interest-free loan. (1946) Money loaned to a borrower
at no charge or, under the Internal Revenue Code,
with a charge that is lower than the market rate. IRC
(26 USCA) 7872. Also termed (in the IRC) below
market loan.
interest-only loan. A loan for which the borrower pays
only the interest on the principal balance ofthe loan
for a stated period, usu. a few years. e At the end of
the stated period, the principal balance is unchanged.
An interest-only loan features low initial payments
in return for Significantly larger payments later or a
balloon payment at the end ofthe term.
liar's loan. 1. A loan that involves no background
check and can be obtained by claiming that one
meets the lender's income and other requirements.
2. See no-doc loan (1). 3. See stated-income loan (1).
Cf. NINJA loan.
maritime loan. A loan providing that a lender will not
be repaid if the cargo is damaged or lost because ofa
navigational peril, but that the lender will be repaid
plus interest ifthe cargo arrives safely or is damaged
because of the carrier's negligence. -Also termed
marine loan.
mortgage loan. (1846) A loan secured by a mortgage
or deed of trust on real property. [Cases: Mortgages
14.]
NINJA loan. abbr. No-income, no-job, no-assets loan.
Cf. liar's loan (1); no-doc loan (1); stated-income loan
(1).
no-doc loan. 1. A loan for which a borrower provides
only minimal proof of ability to repay . The name
is short for "no documentation." 2. See liar's loan (1).
Cf. NINJA loan.
nonperforming loan. (1984) An outstanding loan that |
(1).
Cf. NINJA loan.
nonperforming loan. (1984) An outstanding loan that
is not being repaid.
nonrecourse loan. (1941) A secured loan that allows the
lender to attach only the collateral, not the borrow
er's personal assets, if the loan is not repaid. [Cases:
Bills and Notes C=>44; Secured Transactions
240.]
participation loan. (1928) A loan issued by two or more
lenders. See LOAN PARTICIPATION. [Cases: Contracts
(;:-:194.J
policy loan. An insurer's loan to an insured, secured
by the policy's cash reserve. [Cases: Insurance
1868.]
precarious loan. 1. A loan that may be recalled at any
time. 2. A loan in danger of not being repaid.
premium loan. A loan made to an insured by the insurer
to enable the insured to pay further premiums . The
reserve value ofthe policy serves as collateraL [Cases:
Insurance (::::: 1868, 2037.]
recourse loan. A loan that allows the lender, if the
borrower defaults, not only to attach the collateral
but also to seek judgment against the borrower's (or
guarantor's) personal assets. [Cases: Secured Transac
tions C=>227, 240.]
revolver loan. (1985) A single loan that a debtor takes
out in lieu of several lines of credit or other loans
from various creditors, and that is subject to review
and approval at certain intervals . A revolver loan is
usu. taken out in an attempt to resolve problems with
creditors. Cf. revolving credit under CREDIT (4).
revolving loan. (1927) A loan that is renewed at
maturity.
scratch-and-dent loan. A loan made to a borrower who
was able to repay when the loan was made but has
since fallen behind on payments.
secured loan. (1862) A loan that is secured by property
or securities. -Also termed collateral loan.
short-term loan. (1902) A loan with a due date ofless
than one year, usu. evidenced by a note.
signature loan. An unsecured loan based solely on the
borrower's promise or signature . To obtain such a
loan, the borrower must usu. be highly creditwor
thy.
stated-income loan. 1. A loan extended to a borrower
who claimed a certain income but has not verified the
claim. 2. See liar's loan (1). Cf. NINJA loan.
subprime loan. A loan, esp. a mortgage or home-equity
loan, made to one whose financial condition and cred
itworthiness are poor, creating a high risk ofdefault.
A subprime loan usu. has an adjustable interest rate
that is low at inception, to help a financially weak
borrower qualify, then rises over the life of the loan.
swing loan. See bridge loan.
term loan. A loan with a specified due date, usu. of
more than one year. -Such a loan typically cannot be
repaid before maturity without incurring a penalty.
Also termed time loan. Cf. call loan. [Cases: Bills and
Notes C=> 129(1).J
veteran's loan. A federally guaranteed loan extended to
armed-forces veterans for the purchase of a home.
Also written veterans' loan; veteran loan. Also termed VA loan; GIloan. [Cases: Armed Services
C=>108.]
loan, vb. To lend, esp. money.
loan-amortization schedule. (1958) A schedule that
divides each loan payment into an interest component
and a principal component . Typically, the interest
component begins as the largest part of each payment
and declines over time. See AMORTIZATION (1).
loan association. See SAVINGS-AND-LOAN ASSOCIA
TION.
loan broker. See BROKER.
loan-brokerage fee. See MORTGAGE DISCOUNT.
loan certificate. A certificate that a clearinghouse issues
to a borrowing bank in an amount equal to a specified
percentage of the value of the borrowing bank's col
lateral on deposit with the clearinghouse's loan com
mittee.
loan commitment. (1940) A lender's binding promise
to a borrower to lend a specified amount ofmoney at a
certain interest rate, usu. within a specified period and
for a specified purpose (such as buying real estate). See
MORTGAGE COMMITMENT. [Cases: Contracts Cr'J194.]
loaned employee. See borrowed employee under EM
PLOYEE.
loaned servant. See borrowed employee under EM
PLOYEE.
loan for consumption. (1840) An agreement by which
a lender delivers goods to a borrower who consumes
them and who is obligated to return goods ofthe same
quantity, type, and quality. [Cases: Contracts
194.]
loan for exchange. (1915) A contract by which a lender
delivers personal property to a borrower who agrees
to return similar property, usu. without compensation
for its use.
loan for use. (1837) An agreement by which a lender
delivers an asset to a borrower who must use it accord
ing to its normal function or according to the agree
ment, and who must return it when finished using it.
No interest is charged.
loanland. Rist. A tenancy involving the loan ofland by
one person to another. Also spelled laenland. Cf.
BOOKLAND; FOLKLAND.
"Laenlands were loaned lands, that is, lands granted for
a period, either the life of the grantee or some longer
time such as three lives. In return the grantees per
formed services, usually of an agricultural nature, or
made payments in kind to their landlords. Laenlands, like
boclands, were usually held under a written instrument,
and they are therefore sometimes included in the bodands.
But strictly, laenland and bocland differed. Bocland, we
may say, was held directly as a result of a charter from the
king, whereas laenland was temporarily held by grant from
some great landlord." W.J.V. Windeyer, Lectures on Legal
History 28 (2d ed. 1949).
loan-origination fee. See FEE.
loan participation. (1934) The coming together
of multiple lenders to issue a large loan (called a
participation loan) to one borrower, thereby reducing
each lender's individual risk. [Cases: Contracts
194.]
loan ratio. See LOAN-TO-VALUE RATIO.
loan-receipt agreement. (1943) Torts. A settlement
agreement by which the defendant lends money to
the plaintiff interest-free, the plaintiff not being obli
gated to repay the loan unless he or she recovers money
from other tortfeasors responsible for the same injury.
[Cases: Compromise and Settlement Insurance
C'3524.]
loansharking, n. (1914) The practice oflending money
at excessive and esp. usurious rates, and often using
threats or extortion to enforce repayment. Also
termed extortionate credit transaction. loan-shark,
vb. loan shark, n.
loan society. English law. A club organized to collect
deposits from and make loans to industrial workers.
The loan societies were forerunners ofthe American
savings-and-Ioan associations.
loan-to-valne ratio. The ratio, usu. expressed as a per
centage, between the amount of a mortgage loan and
the value of the property pledged as security for the
mortgage. For example, an $80,000 loan on property
worth $100,000 results in a loan-to-value ratio of
80% which is usu. the highest ratio that lenders will
agree to without requiring the debtor to buy mortgage
insurance. -Often shortened to LTV ratio. -Also
termed loan ratio. [Cases: Mortgages C:::)145.]
loan value. Insurance. 1. The maximum amount that
may be lent safely on property or life insurance without
jeopardizing the lender's need for protection from the
borrower's default. 2. The amount ofmoney an insured
can borrow against the cash value of his or her life
insurance policy. [Cases: Insurance C=c 1868.)
lobby, vb. (1837) 1. To talk with or curry favor with a
legislator, usu. repeatedly or frequently, in an attempt
to influence the legislator's vote <she routinely lobbies
for tort reform in the state legislature>. [Cases: Statutes
2. To support or oppose (a measure) by working
to influence a legislator's vote <the organization lobbied
the bill through the Senate>. 3. To try to influence (a
decision-maker) <the lawyer lobbied the judge for a
favorable ruling>. -lobbying, n. lobbyist, n.
lobbying act. (1948) A federal or state law governing the
conduct oflobbyists, usu. by requiring them to register
and file activity reports . An example is the Federal
Regulation ofLobbying Act, 12 USCA 261. [Cases:
Statutes C::::24.J
lobby vote. See VOTE (4).
local act. 1. See LOCAL LAW (1). 2. See LOCAL LAW (2).
local action. See ACTION (4).
local administrator. See ADMINISTRATOR (1).
local agency. See AGENCY (3).
local agent.!. See AGENT (2). 2. See special agent under
INSURANCE AGENT. local allegiance. See actual allegiance under ALLE
GIANCE.
local and special legislation. See LEGISLATION.
local assessment. See ASSESSMENT.
local bar association. See BAR ASSOCIATION.
local chattel. See CHATTEL.
local concern. (1833) An activity conducted by a munic
ipality in its proprietary capacity. [Cases: Municipal
Corporations C=c57.j
local counsel. See COUNSEL
local court. See COURT.
local custom. See CUSTOM.
local-exchange carrier. Telecommunications law.
An entity that provides telephone service, usu. on a
local basis, through a local-exchange network. 47
USCA 153(26). -Abbr. LEe. See LOCAL-EXCHANGE
NETWORK. [Cases: Telecommunications
local-exchange network. Telecommunications law.
A system for providing telephone service on a local
basis. A local-exchange network usu. consists of
such elements as switches, local loops, and transport
trunks, and capabilities such as billing databases and
operator services. Switches are pieces of equipment that
direct calls to the appropriate destination. Local loops
are the wires that connect telephones to the switches.
Transport trunks are the wires that carry calls from
switch to switch. All the elements ofa local-exchange
network are often referred to as a bundle, and there
are federal requirements that a local-exchange carrier
who controls a local-exchange network permit com
petition by selling some access, including unbundled
access, to its local-exchange network. 47 USCA 25I(c).
See LOCAL-EXCHANGE CARRIER; UNBUNDLING RULES.
[Cases: Telecommunications
local government. See GOVERNMENT.
local improvement. See IMPROVEMENT.
local-improvement assessment. See local assessment
under ASSESSMENT.
locality, n. (17c) 1. A definite region; vicinity; neighbor
hood; community. 2. Hist. Scots law. The land held by
a widow in usufruct under the terms of her marriage
contract. If a widow has locality lands, she cannot
assert her statutory claim to a one-third share of her
husband's real property.
locality ofa lawsuit. (1939) The place where a court may
exercise judicial authority.
locality-plus test. Maritime law. The requirement that,
for a federal court to exercise admiralty tort jurisdic
tion, not only must the alleged wrong occur on naviga
ble waters, it must also relate to a traditional maritime
activity Executive let Aviation, Inc. v. Cleveland, 409
U.S. 249, 93 S.Ct. 493 (1972). Also termed locality
plus rule; maritime-connection doctrine. [Cases: Admi
ralty
1023
locality rule. 1. The doctrine that, in a professional~
malpractice suit, the standard ofcare applicable to the
professional's conduct is the reasonable care exercised
by similar professionals in the same vicinity and profes
sional community. [Cases: Health C::'620.]
"With respect to medical doctors (and sometimes dentists
and others), the standard of care has been further limited
by the so-called 'locality rule.' A physician historically was
required only to possess and apply the knowledge and use
the skill and care that is ordinarily used by reasonably well
qual ified physicians in the locality in which he practices,
or, usually, in 'similar localities: This frequently made it
difficult or impossible for a plaintiff to prove the appli
cable standard since other doctors in the same locality are
notoriously reluctant to testify against their professional
colleagues. However, with the advent of improved com
munication and continuing medical education, the reason
for the rule has abated, and today the trend is toward its
abolition." Edward j. Kionka, Torts in a Nutshell 270-71
(2d ed. 1992).
2. The doctrine that, in determining the appropriate
amount of attorney's fees to be awarded in a suit, the
proper basis is the rate charged by similar attorneys for
similar work in the vicinity. [Cases: Costs (;:::;:, 194.18;
Federal Civil Procedure (;:::;:,2737.4.]
locality test. Maritime law. The requirement that, for a
federal court to exercise admiralty tort jurisdiction,
the alleged wrong must have occurred on naVigable
waters. The test was replaced by the locality-plus test
in Executive let Aviation, Inc. v. Cleveland, 409 U.S. |
was replaced by the locality-plus test
in Executive let Aviation, Inc. v. Cleveland, 409 U.S. 249,
93 S.Ct. 493 (1972). -Also termed locality rule. See
LOCALITY- PLUS TEST. [Cases: Admiralty C= 17.]
localization doctrine. The doctrine that a foreign cor
poration, by doing sufficient business in a state, will
subject itself to that state's laws. [Cases: Corporations
C~661.]
local law. 1. A statute that relates to or operates in a par
ticular locality rather than the entire state. 2. A statute
that applies to particular persons or things rather than
an entire class ofpersons or things. -Also termed (in
senses 1 & 2) local act; local statute. [Cases: Statutes
(;:::;:,76-104.) 3. The law ofa particular jurisdiction, as
opposed to the law of a foreign state. -Also termed
internal law. 4. Conflict oflaws. The body ofstandards,
principles, and rules -excluding conflict-of-Iaws
rules that the state courts apply to controversies
before them. Restatement (Second) ofConflict ofLaws
4(1) (1971). [Cases: Action C:)17.]
local-law theory. Conflict of laws. The view that,
although a court ofthe forum recognizes and enforces
a local right (that is, one created under its own law), in
a foreign-element case it does not necessarily apply the
rule that would govern an analogous case of a purely
domestic character, but instead takes into account the
law of the foreign country by fashioning a local right
as nearly as possible upon the law of the country in
which the decisive facts have occurred . This theorv
is credited to Walter Wheeler Cook, who expounded it
in the first chapter ofhis Logical and Legal Bases ofthe
Conflict ofLaws (1949). [Cases: Action (;:::;:, 17.]
"Since the court of the forum adopts the view that the
chosen law would have taken not of the actual case, but locatio
of an equivalent domestic case, it does not necessarily
recognize the right that would have been vested in the
plaintiff according to that law .... It is scarcely deniable,
however, that this local law theory is little more than what a
learned writer has stigmatized as a sterile truism sterile
because it affords no basis for the systematic development
of private international law. To remind an English judge,
about to try a case containing a foreign element, that
whatever decision he gives he must enforce only the lex
fori, is a technical quibble that explains nothing and solves
nothing. It provides no guidance whatever upon the limits
within which he must have regard to the foreign law." G.c.
Cheshire, Private International Law 35 (6th ed. 1961).
local option. An option that allows a municipality or
other governmental unit to determine a particular
course of action without the specific approval of state
officials. Also termed local veto. Cf. HOME RULE.
[Cases: Intoxicating Liquors (;:'-;:>24-43; Municipal
Corporations (;:::;:,65_1
local receiver. See RECEIVER.
local rule. (1819) 1. A rule based on the phYSical condi
tions of a state and the character, customs, and beliefs
ofits people. [Cases: Federal Civil Procedure C::>25.]
2. A rule by which an individual court supplements
the procedural rules applying generally to all courts
within the jurisdiction . Local rules deal with a variety
ofmatters, such as requiring extra copies of motions
to be filed with the court or prohibiting the reading of
newspapers in the courtroom. Fed. R. Civ. P. 83. [Cases:
Courts (;:::;:,85; Federal Civil Procedure (;:::;:,25.]
local statute. 1. See LOCAL LAW (1). 2. See LOCAL LAW
(2).
local union. See UNION.
local usage. See USAGE.
local veto. See LOCAL OPTION.
locare (l,,-kair-ee), vb. [Latin] Roman law. To let or hire
out. See LOCATOR.
locare aliquid faciendum (la-kair-ee al-i-kwid fay
shee-en-dam). [Latin] Roman law. To contract to have
someone perform work for remuneration. Cf. CONDUC
ERE ALIQUID FACIENDUM.
locare aliquid utendum (la-kair-ee al-i-kwid yoo-ten
dam). [Latin] Roman law. To let something on hire for
the use ofthe lessee; to accept consideration for the use
of an object. Cf. CONDUCERE ALIQUID UTENDUM.
locarium (la-kair-ee-am), n. [Law Latin] Hist. Rent.
locatarius (loh-b-tair-ee-as), n. [Latin] Hist. A person
with whom something is depOSited; a depositee.
locatio (la-kay-shee-oh), n. [Latin] Roman & civil law.
Any contract by which the use of the thing bailed, or
the use ofthe labor or services, is agreed to be given for
a compensation . This type ofcontract benefits both
parties. -Also termed lease; hiring. Cf. ABLOCATION.
PI. locationes {la-kay-shee-oh-neez).
locatio conductio (la-kay-shee-oh kan-duk-shee-oh).
[Latin] Roman law. A letting for hire; speciE., a contract
by which one person agreed to give to another the use,
or the use and enjoyment, ofa thing or ofservices or
labor in return for remuneration, usu. money . In
Roman law, it covered a broad range ofcircumstances
in return for a merces or rent.
locatio custodiae (lil-kay-shee-oh kils-toh-dee-ee).
[Latin] Roman law. The hiring of care or service, as
when the bailee is to protect the thing bailed.
locatio mercium vehendarum. See locatio operis
mercium vehendarum.
locatio operarum (lil-kay-shee-oh 0p-il-rair-ilm).
[Latin "the letting of services"] Roman & civil law.
A contract ofemployment; specif., contract in which
someone, usu. a day laborer, hires out his services
for a specified price. -Also termed locatio operis
faciendi. Cf. REDEMPTIO OPERIS.
locatio operis faciendi (lil-kay-shee-oh 0p-il-ris fay
shee-en-dr). [Latin "the letting of a job to be done"]
Roman law. A contract by which someone hires a
contractor (conductor) to undertake work (e.g., to
build a home or teach a slave to read) on behalf of the
hirer. Sometimes shortened to locatio operis. See
locatio operaTum.
locatio operis mercium vehendarum (l;:l-kay-shee-oh
op-il-ris milr-shee-ilm vee-hiln-dair-ilm).ILatin "the
letting of the job of carrying goods"] Roman law. A
bailment in which goods are delivered to the bailee
for transport elsewhere, esp. by sea. Also termed
locatio mercium vehendarum.
locatio rei (lil-kay-shee-oh ree-I). [Latin "letting of a
thing"] Roman law. The hiring ofa thing for use, by
which the hirer gains the temporary use of the thing
for a fee.
"Locatio rei was the letting of a res for hire. Roman law
differed in several aspects from the relevant rules of
English law. Firstly, there was not in Roman law a funda
mental distinction between the hiring of personal property
and the lease of real property: locatio rei applied both
to land and movables. Secondly, in Roman law the hirer
did not obtain possession. Thirdly, the locatio was a mere
contract and even the tenant of land did not have a right to
be restored if he were [wrongfully] ejected, his sole remedy
being an action for breach of contract. Fourthly, the Roman
contract gave more consideration to the tenant or hirer
than does English law." G.W. Paton. Bailment in the Cammon
Law 53 (1952).
location. (l6c) 1. The specific place or position ofa person
or thing. 2. The act or process oflocating. 3. Real estate.
The designation ofthe boundaries ofa particular piece
ofland, either on the record or on the land itself. [Cases:
Boundaries ~7-9.]4. Mining law. The act ofappropri
ating a mining claim. Also termed mining location.
See MINING CLAIM. [Cases: Mines and Minerals
9-38.] 5. The claim so appropriated. 6. Civil law. A
contract for the temporary use of something for hire;
a leasing for hire. See LOCATIO.
location-damage clause. See SURFACE-DAMAGE CLAUSE.
locative calls (Iok-il-tiv). (1807) Property. In land descrip
tions, specific descriptions that fix the boundaries ofthe
land. Locative calls may be marks oflocation, land
marks, or other physical objects. Ifcalls in a description
conflict, locative calls control over those indicating a general area of a boundary. See CALL (5); DIRECTORY
CALLS. [Cases: Boundaries ~1-23.]
locator (loh-kay-tdr), n. [Latin] 1. Roman law. (usu. ital.)
One who lets out property or services for reward, or
who contracts to have another person (the conductor)
perform work for reward; a lessor or landlord. See CON
DucToR (2).
locator operarum, n. One who offers one's labor for
hire, esp. as a day laborer.
locator operas faciendi, n. One who employs contract
labor.
locator rei, n. A lessor or landlord.
2. One who is entitled to locate land or set the boundar
ies ofa mining claim.
locatum (lil-kay-tilm), n. [Latin] Hist. A hiring. See
BAILMENT.
Lochnerize (lok-nilI-Iz), vb. (1976) To examine and strike
down economic legislation under the guise ofenforc, ing the Due Process Clause, esp. in the manner of the
U.S. Supreme Court during the early 20th century .
The term takes its name from the decision in Lochner
v. New York, 198 U.S. 45, 25 S.Ct. 539 (1905), in which
the Court invalidated New York's maximum-hours law
for bakers. -Lochnerization, n.
lockbox. (1872) 1. A secure box, such as a post-office box,
strongbox, or safe-deposit box. 2. A facility offered by
a financial institution for quickly collecting and con
solidating checks and other funds from a party's cus
tomers.
lockdown. (1977) The temporary confinement of pris
oners in their cells during a state of heightened alert
caused by an escape, riot, or other emergency. [Cases:
Prisons ~233.]
Lockeanism. See LOCKEA~ LABOR THEORY.
Lockean labor theory. The philosopher John Locke's jus
tification of private property, based on the natural right
of one's ownership of one's own labor, and the right
to nature's common property to the extent that one's
labor can make use ofit. Locke's theory, from the fifth
chapter of his Second Treatise on Civil Government, is
often used to analyze the natural rights of inventors,
authors, and artists in their own creations. -Also
termed labor theory; Lockeanism. Cf. PERSONALITY
THEORY; UTILITARIANISM.
locked in, adj. 1. (Of a person) unable to sell appreciated
securities and realize the gain because ofliability for
capital gains taxes <my accountant advised me not to
sell the stock because I am locked in>. 2. (Of a price,
rate, etc.) staying the same for a given period <the 7%
mortgage rate is locked in for 30 days>.
locked-in rate. See lock rate under INTEREST RATE.
lockout. (1854) 1. An employer's withholding of work
and dosing of a business because of a labor dispute.
[Cases: Labor and Employment ~1392.]
defensive lockout. A lockout that is called to prevent
imminent and irreparable financial harm to the
1025 locus regit actum
company or to protect a legal right. Defensive
lockouts were legal, but the U.S. Supreme Court abol
ished the distinction between defensive and offensive
lockouts in favor of a balancing test. American Ship
Bldg. Co. v. NLRB, 380 U.S. 300, 85 S.Ct. 955 (1965).
offensive lockout. A lockout called by management
to assert economic pressure on workers and thereby
gain a bargaining advantage over a union . Offensive
lockouts were illegal before the U.S. Supreme Court
abolished the legal distinction between offensive
and defensive lockouts in favor of a balancing test.
American Ship Bldg. Co. v. NLRB, 380 U.S. 300, 85
S.Ct. 955 (1965).
2. Loosely, an employee's refusal to work because the
employer unreasonably refuses to abide by an expired
employment contract while a new one is being negoti
ated. Cf. STRIKE; BOYCOTT; PICKETING.
lock rate. See INTEREST RATE.
lockup, n. 1. See JAIL. 2. See LOCKUP OPTION.
lockup agreement. Securities. A contract between an
underwriter and a corporation's insiders that prohibits
the insiders from selling any personal stockholdings for
a specified time after the corporation makes a public
offering of securities. Cf. MARKET-STANDOFF AGREE
MENT. [Cases: Corporations C=310(1).]
lockup option. A defense against a corporate takeover, in |
[Cases: Corporations C=310(1).]
lockup option. A defense against a corporate takeover, in
which a friendly party is entitled to buy parts of a cor
poration for a set price when a person or group acquires
a certain percentage of the corporation's shares . An
agreement of this kind may be illegal, to the extent it is
not undertaken to serve the best interests of the share
holders. -Often shortened to lockup. [Cases: Corpo
rations C=312(5).]
loco parentis. See IN LOCO PARENTIS.
loco rerum immobilium (loh-koh reer-dm im-;J-bil
ee-dm). [Latin] Scots law. Treated as immovable things.
The phrase appeared in reference to a determina
tion of whether certain items (such as shares of stock)
should be treated as movable or immovable property.
loco tutoris (loh-koh t[y]oo-tor-is). [Latin] Scots law. In
the place ofa tutor.
"The Court of Session is in the practice of appointing, on
application made for such appOintment, a factor loco tutoris
on the estates of pupils not having tutors. Such an appOint
ment places the factor in the same position towards the
pupil, both as regards his person and the administration of
his estate, as if he held the office by virtue of relationship
and was tutor-at law, or had received the appointment of
tutor from the pupil's father under his testamentary settle
ment, the only difference being that the office of a tutor
appointed by the Court is not gratuitous." John Trayner,
Trayner's Latin Maxims 336-37 (4th ed. 1894).
locum tenens (loh-bm tee-nenz or ten-;:lflz), n. [Law
Latin "holding the place"] Hist. A deputy; a substitute;
a representative.
locuples (lok-Yd-pleez), adj. [Latin] Civil law. Having
the means to pay any amount that the plaintiff might
recover. Also termed locuplete. locupletari cum damno alterius (lok-yuu-pld-tair-r bm
dam-noh al-teer-ee-as). [Latin] To be enriched through
the damage sustained by another.
locus (loh-k;ls). [Latin "place"] (l8c) Ihe place or position
where something is done or exists. Abbr. L. See
SITUS.
locus actus (Ioh-bs ak-tas). [Latin "place of the act"]
The place where an act was done; the place of perfor
mance.
locus contractus (loh-kas kan-trak-t;ls). [Latin "place of
the contract"] The place where a contract was made.
Cf. LEX LOCI CONTRACTUS. [Cases: Contracts
145.]
locus criminis (loh-kas krim-;l-nis), n. [Latin] The place
where a crime was committed.
locus delicti (loh-k;JS d;l-Iik-tr). [Latin "place of the
wrong"] The place where an offense was committed;
the place where the last event necessary to make the
actor liable occurred. Cf. LEX LOCI DELICTI. [Cases:
Torts C=103.]
"When a statute does not indicate where Congress con
sidered the place of committing the crime to be, the site
or locus delicti must be determined from the nature of the
crime and the location of the acts or omissions constituting
the offense." United States v. Clinton, 574 F.2d 464, 465
(9th (ir. 1978).
locus in quo (loh-k;ls in kwoh). [Latin "place in which"]
(ISc) The place where something is alleged to have
occurred.
locus partitus (loh-k;ls pahr-tI-t;ls), n. [Latin "a place
divided"] Hist. The act of dividing two towns or
counties to determine which ofthem contains the land
or place in question.
locus poenitentiae (loh-kas pen-a-ten-shee-ee). [Latin
"place of repentance") 1. A point at which it is not too
late for one to change one's legal position; the possi
bility of withdrawing from a contemplated course of
action, esp. a wrong, before being committed to it .
'The requirement of an overt act before conspirators can
be prosecuted and punished exists .. to provide a locus
poenitentiae an opportunity for the conspirators to
reconSider, terminate the agreement, and thereby avoid
punishment." People v. Zamora, 557 P.2d 75. 82 n.8 (Cal.
1976).
2. The opportunity to withdraw from a negotiation
before finally concluding the contract. [Cases: Con
tracts C=138(3).]
locus publicus (loh-k;ls p<lb-li-k;ls). [Latin) Roman law.
A public place.
"Locus publicus . A parcel of public land. It is property
of the Roman people and is protected by various inter
dicts ... against violation by private individuals who might
endanger its public character or its use by the people."
Adolf Berger, Encyclopedic Dictionary of Roman Low 568
(1953).
locus regit actum (loh-k;ls ree-jit ak-tam), n. [Latin "the
place rules the act"]lnt'llaw. The rule that a trans
action complying with the legal formalities of the
country where it is created will be considered valid
1026 locus reisitae
in the country where it is to be effective, even if that
country requires additional formalities.
locus rei sitae (loh-bs ree-I sl-tee), n. [Latin "place
where a thing is situated"] Civil law. The rule that the
place where the land is located is the proper forum in
a case involving real estate.
locus sigilli (loh-k<ls Si-jil-I), n. [Latin] The place of the
seal. Today this phrase is almost always abbreviated
"L.S." These are the traditional letters appearing on
many notarial certificates to indicate where the notary
public's embossed seal should be placed. Ifa rubber
stamp seal is used, it should be placed near but not
over this abbreviation. See NOTARY SEAL. [Cases: Seals
"For some period in history seals were required to consist of
wax affixed to the parchment or paper on which the terms
of the instrument were written. The wax was required to
have an identifiable impression made upon it. Usually this
was made by a signet ring. In time when ordinary people,
who did not have signet rings, learned to read and write,
it was to be expected that substitutes for the traditional
seal would be accepted by the law. Thus, today it would be
generally accurate to say that a seal may consist of wax,
a gummed wafer, an impression on the paper, the word
'seal,' the letters 'L.5.' (locus sigitli) or even a pen scratch."
John D. Calamari &Joseph M. Perillo, The Lawo(Contracts
73, at 296 (3d ed. 1987).
locus solutionis (loh-k<ls s<l-loo-shee-oh-nis). [Latin]
Rist. The place ofperformance.
locus standi (loh-k2s stan-dr or -dee). [Latin "place of
standing"] (1835) The right to bring an action or to be
heard in a given forum; STANDING.
lode, n. 1. MINERAL LODE. 2. LADE.
lode claim. See MINING CLAIM.
lodeman. See LOADSMAN.
lodemanage, n. See LOADMANAGE.
lodesman. See LOADSMAN.
lodestar. (14c) 1. A guiding star; an inspiration or
model. 2. A reasonable amount of attorney's fees in a
given case, usu. calculated by multiplying a reasonable
number ofhours worked by the prevailing hourly rate
in the community for similar work, and often consid
ering such additional factors as the degree ofskill and
difficulty involved in the case, the degree ofits urgency,
its novelty, and the like. Most statutes that authorize
an award ofattorney's fees use the lodestar method for
computing the award. [Cases: Costs (;:::::;,194.18; Federal
Civil Procedure (;=>2737.4.]
lodge. See FILE (1).
lodger. (16c) 1. A person who rents and occupies a room
in another's house. [Cases: Innkeepers (;=>8; Landlord
and Tenant 1.]2. A person who occupies a desig
nated area in another's house but acquires no property
interest in that area, which remains in the owner's legal
possession.
log, n. 1. See ARREST RECORD. 2. JOURNAL (1).
logan. See LAGAN. logbook. (I7c) 1. A ship's or aircraft's journal containing
an account ofeach trip, often with a history ofevents
during the voyage; JOURNAL (1). 2. Any journal or
record ofevents.
logia (loj-ee-<l), n. [Latin] Rist. A small house or
cottage.
logical-cause doctrine. (1980) The principle that, if the
plaintiff proves that an injury occurred and proves a
logical cause of it, a party desiring to defeat the claim
cannot succeed merely by showing that there is another
imaginable cause, but must also show that the alterna
tive cause is more probable than the cause shown by the
plaintiff. [Cases: Workers' Compensation (~1356.1
logical interpretation. See INTERPRETATION.
logical positivism. (1931) A philosophical system or
movement requiring that meaningful statements be
in principle verifiable. Cf. LEGAL POSITIVISM.
logical-relationship standard. (1976) Civil procedure.
A test applied to determine whether a defendant's
counterclaim is compulsory, by examining whether
both claims are based on the same operative facts or
whether those facts activate additional rights, other
wise dormant, for the defendant. One of the most
important factors considered is whether hearing the
claims together would promote judicial economy and
efficiency. Fed. R. Civ. P. 13(a). [Cases: Federal Civil
Procedure (;=>776; Set-off and Counterclaim (;=>60.]
"[Ulnder the fourth test --frequently referred to as the
'logical relationship' standard the principal consider
ation in determining whether a counterclaim is compul
sory rests on the efficiency or economy of trying the
counterclaim in the same litigation as the main claim. As
a result, the convenience of the court, rather than solely
the counterclaim's relationship to the facts or issues of
the opposing claim, is controlling. The hallmark of this
approach is flexibility. Although the fourth test has been
critiCized for being overly broad in scope and uncertain in
application, it has by far the widest acceptance among the
courts." Jack H. Friedenthal et aI., Civil Procedure 6.7, at
352 (2d ed. 1993).
logic bomb. Destructive or disruptive computer software
that is planted on a computer, server, or network and
waits until a certain time to activate itself.
logium (loj-ee-;}m), n. [Latin] Rist. A lodge, hovel, or
outhouse.
logographus (Iog-<l-graf-ds), n. [Latin fro Greek] Roman
law. A bookkeeper or public clerk.
logrolling, n. (1812) 1. The exchanging ofpolitical favors;
esp., the trading of votes among legislators to gain
support ofmeasures that are beneficial to each legisla
tor's constituency. 2. The legislative practice ofinclud
ing several propositions in one measure or proposed
constitutional amendment so that the legislature or
voters will pass all ofthem, even though these proposi
tions might not have passed ifthey had been submitted
separately. Many state constitutions have single-sub
ject clauses that prohibit this practice. [Cases: Constitu
tional Law (;=>9(1); Statutes (;=> 107.] -logroll, vb.
LOL abbr. LETTER OF INTENT.
lOitering, n. (14c) The criminal offense of remaining in
a certain place (such as a public street) for no apparent
reason. _ Loitering statutes are generally held to be
unconstitutionally vague. Cf. VAGRANCY. [Cases: Disor
derly Conduct (;=>122; Vagrancy (;::::, 1.] loiter, vb.
lollipop syndrome. (1986) Family law. A situation in
which one or both parents, often in a custody battle,
manipulate the child with gifts, fun, good times, and
minimal discipline in an attempt to win over the child.
See Disneyland parent under PARENT. Cf. RESCUE
SYNDROME.
Lombard law. A Germanic customary law based primar
ily on a code called the Edict of Rothar, published in
A.D. 643. Rothar was the King ofthe Lombards at the
time (A.D. 636-652), and his code (written in Latin) was
more complete than the Germanic leges barbarorum.
Also termed law ofLombardy; law ofLangobardi. Cf.
LEGES BARBARORUM.
London commodity option. An agreement to buy or
sell a futures contract for a commodity traded on the
London markets, for a particular price and within a
particular time.
London Interbank Offered Rate. A daily compilation by
the British Bankers Association ofthe rates that major
international banks charge each other for large-volume,
short-term loans ofEurodollars, with monthly maturity
rates calculated out to one year . These daily rates are
used as the underlying interest rates for derivative
contracts in currencies other than the euro. Abbr.
LIBOR. Cf. EURO INTERBANK OFFERED RATE.
London Lloyd's. See LLOYD'S OF LONDON.
Lone Pine order. A |
ATE.
London Lloyd's. See LLOYD'S OF LONDON.
Lone Pine order. A case-management order in a toxic-tort
lawsuit involving many plaintiffs, establishing proce
dures and deadlines for discovery, including requiring
the plaintiffs to timely produce evidence and expert
opinions to substantiate each plaintiff's exposure to the
hazardous substance, the injury suffered, and the cause
of the injury. Lore v. Lone Pine Corp., No. L-33606-85
(N.J. Super. Ct. Nov. 18, 1986). -Although the Lone
Pine opinion is unreported, it has become famous for
the kind of case-management order involved, in part
because the plaintiffs' claims were dismissed for failure
to timely provide expert opinions. [Cases: Federal Civil
Procedure (;=> 1925.1; Pretrial Procedure (;::::,747).]
long, adj. 1. Holding a security or commodity in antici
pation ofa rise in price <a buyer long on pharmaceuti
cal stock>. 2. Ofor relating to a purchase ofsecurities
or commodities in anticipation ofrising prices <a long
position>. Cf. SHORT.
long, adv. By a long purchase; into or in a long position
<bought the wheat long>.
long account. See ACCOUNT.
longa manu (long-g~ man-yoo), adv. [Latin "with a long
hand"] Roman & civil law. Indirectly; by the longest
route. -This described the transfer of ownership by
pointing out, at some distance, the thing to the trans
feree and authorizing its taking. This could be done, for example, by handing over the keys at the door of a
warehouse, or by pointing out the boundaries ofland.
See CONSTITUTUM POSSESSORIUM. Cf. BREVI MANU.
long-arm, adj. Ot: relating to, or arising from a long-arm
statute dong-arm jurisdiction>. [Cases: Courts
12(2); Federal Courts (='76.1.]
long-arm jurisdiction. See JURISDICTION.
long-arm statute. (1951) A statute providing for jurisdic
tion over a nonresident defendant who has had contacts
with the territory where the statute is in effect. Most
state long-arm statutes extend this jurisdiction to its
constitutionalli mits. -Also termed single-act statute.
See long-arm jurisdiction under JURISDICTION. [Cases:
Courts (=,12(2); Federal Courts
long-firm fraud. See FRAUD.
long-form bill oflading. See BILI. OF LADING.
longi temporis praescriptio (long-gI tem-p<:J-ris pri
skrip-shee-oh). [Latin] Roman law. The prescriptive
period after which a possessor ofproperty could defeat
any challenge to his title. See USUCAPTION.
Long Parliament. Hist. 1. The English Parliament of
Charles I meeting between 1640 and 1653, dissolved
by Oliver Cromwell in 1653, then recalled and finally
dissolved in 1660. 2. The English Parliament that met
between 1661 and 1678, after the restoration of the
monarchy. -This Parliament is sometimes called the
"Long Parliament of Charles II" to distinguish it from
that ofsense l.
long robe. Hist. The legal profession <gentlemen of the
long robe>. See ROBE.
long-run incremental cost. Antitrust. A cost thresh
old for determining whether predatory pricing has
occurred, consisting ofall costs that, over a several-year
period, would not be incurred ifthe product in question
were not offered . It differs from average variable cost
because it includes some costs that do not vary in the
short run but that do vary over a longer period, depend
ing on whether a particular product is offered. Abbr.
LRIC. Cf. average variable cost under COST (1).
Longshore and Harbor Workers' Compensation Act.
A federal law designed to provide workers' -compensa
tion benefits to persons, other than seamen, who work
in maritime occupations, esp. stevedoring and ship
service. 33 USCA 901-50. Abbr. LHWCA. [Cases:
Workers' Compensation 260,262,2085.]
"Employees who are engaged in maritimerelated activi
ties but who do not qualify as 'seamen' may be classified
as 'maritime workers' entitled to the benefits provided
by the Longshore and Harbor Workers' Compensation
Act .... Persons covered by the act, which has the attri
butes of the usual workers' compensation law, include (1)
employees injured on the Outer Continental Shelf in the
course of mineral exploration and production activities,
and (2) employees within American territorial waters who
fall within the Congressional definition of a 'maritime
worker,' and who are injured on 'naVigable waters'." Frank
L. Maraist, Admiralty in a Nutshell 44 (2d ed. 1988).
longshoreman. (1811) A maritime laborer who works
on the wharves in a port; esp., a person who loads and
1028 long-term capital gain
unloads ships. Cf. STEVEDORE. [Cases: Shipping
84.]
long-term capital gain. See CAPITAL GAIN.
long-term capital loss. See LOSS.
long-term debt. See DEBT.
long-term foster care. See FOSTER CARE.
long-term security. See SECURITY.
long title. See TITLE (3).
long ton. See TON.
look and feel. See TRADE DRESS.
look-and-feel protection. Copyright protection of the
images generated or revealed when one activates a
computer program. [Cases: Copyrights and Intellec
tual Property G=> 10.4.]
lookout, n. (17c) A careful, vigilant watching <the motor
ist's statutory duty of proper lookout>. [Cases: Automo
biles G=> 150; Collision (>=>77.]
look-through principle. (1993) Tax. A doctrine for allo
cating transfer-gains taxes on real estate by looking
beyond the entity possessing legal title to identify the
beneficial owners of the property. [Cases: Internal
Revenue G=>3071.]
loophole. (17c) An ambiguity, omission, or exception
(as in a law or other legal document) that provides a
way to avoid a rule without violating its literal require
ments; esp., a tax-code provision that allows a taxpayer
to legally avoid or reduce income taxes.
loopification, n. (1982) In critical legal studies, the
collapse of a legal distinction resulting when the two
ends of a continuum become so similar that they
become indistinguishable <it may be impossible to
distinguish "public" from "private" because of loopi
fication>. loopify, vb.
loose construction. See liberal construction under CON
STRUCTION.
loose constructionism. See liberal constructionism under
CONSTRUCTIONISM.
loose constructionist. See liberal constructionist under
CONSTRUCTIONIST.
looseleaf service. (1927) A type of lawbook having pages
that are periodically replaced with updated pages,
designed to cope with constant change and increas
ing bulk.
"The first loose leaf service covered the federal income
tax, and was published in 1913 shortly after the Federal
Income Tax Law of 1913 went into effect. It was followed in
1914 by a service reporting on the activities of the Federal
Trade Commission, which had just been established. The
loose leaf method was, therefore, first used as a means
of reporting new tax and business laws which were to be
subject to administrative interpretation .... These first
loose leaf services Were designed ... not to reprint just the
bare text of the revenue and commiSSion acts, but to follow
up and report each new development on these new laws as
it occurred." Arthur Sydney Beardsley, Legal Bibliography
and the Use ofLaw Books 185, at 313-14 (1937). loquela (l;l-kwee-l;l), n. [Law Latin "talk"] Hist. 1. The
oral discussions between the parties to a lawsuit leading
to the issue, now called the pleadings. 2. Settlement
discussions.
loquela sine die (l;l-kwee-l;l sl-nee dI-ee or sin-ay
dee-ay), n. [Law Latin] Rist. Indefinite postponement
ofan action.
lord. (bef. 12c) 1. A title of honor or nobility belong
ing properly to a baron but applied also to anyone who
attains the rank of a peer. Abbr. L. 2. (cap. & pl.)
HOUSE OF LORDS. 3. A property owner whose land is in
a tenant's possession; LANDLORD (l).
temporal lord (tem-p;l-r;ll). One of the English peers
(other than ecclesiastical) who sit in Parliament.
Lord Advocate. Scots law. An important political func
tionary in Scottish affairs who acts as the principal
Crown counsel in civil cases, the chief public prosecu
tor ofcrimes, and legal adviser to the Scottish govern
ment on matters ofScots law. Formerly also termed
King's advocate. Cf. ADVOCATE GENERAL.
lord-and-master rule. See HEAD-AND-MASTER RULE.
Lord Campbell's Act. 1. The 1846 English statute that
created a wrongful-death claim for the relatives of a
decedent when the decedent would have had a claim
ifhe or she had been merely injured and not killed .
Technically known as the Fatal Accidents Act of 1846,
this statute changed the earlier rule, under which
a tortfeasor who would have been liable to another
escaped liability if the victim died. Cf. WRONGFUL
DEATH ACTION.
"The common law not only denied a tort recovery for injury
once the tort victim had died, it also refused to recognize
any new and independent cause of action in the victim's
dependents or heirs for their own loss at his death ....
The result was that it was cheaper for the defendant to kill
the plaintiff than to injure him, and that the most grievous
of all injuries left the bereaved family of the victim, who
frequently were destitute, without a remedy. Since this was
intolerable, it was changed in England by the passage of
the Fatal Accidents Act of 1846, otherWise known as Lord
Campbell's Act, which has become a generic name for
similar statutes." Prosser and Keeton on the Law of Torts
127, at 945 (W. Page Keeton ed., 5th ed. 1984).
2. An American state's wrongful-death statute pat
terned after the original English act.
Lord Chamberlain. The second officer of the royal
household in England, who serves as a peer, a privy
councilor, and a member ofthe ruling government.
Also termed Lord Chamberlain ofthe Household.
Lord Chancellor. The highest judicial officer in England.
The Lord Chancellor sits as speaker of the House of
Lords, is a member of the Cabinet, and presides at
appellate judicial proceedings. Also termed Lord
High Chancellor; Keeper ofthe King's Conscience.
Lord Chief Justice of England. The chief judge of the
Queen's Bench Division of the High Court ofJustice.
The Lord ChiefJustice also serves on the Court of
Appeal, and ranks second only to the Lord Chancellor
in the English judicial hierarchy. Formerly termed
1029
Chief Justice of England. Cf. CHIEF JUSTICE OF THE
COMMON PLEAS.
Lord Clerk Register. Scots law. The officer who, from
1288 to 1879, was keeper of the rolls of court and
records of Scotland. These functions were later dis
charged by the Keeper ofthe Registers ofScotland and
the Keeper of the Records of Scotland.
Lord Denman's Act. See DENMAN'S ACT (1).
Lord High Chancellor. See LORD CHANCELLOR.
Lord High Steward. Hist. The speaker pro tempore
and presiding officer in the House of Lords during a
criminal trial of a peer for a felony or for treason .
The privilege of peerage in criminal proceedings was
abolished in 1948.
Lord High Treasurer. Hist. An officer in charge of the
royal revenues and customs duties, and ofleasing the
Crown lands . The functions of the Lord High Trea
surer are now vested in the lords commissioners ofthe
treasury.
lord in gross. Hist. A lord holding the title not by virtue
ofa manor; a lord without a manor.
Lord Justice. See LORD JUSTICE OF APPEAL.
Lord Justice-Clerk. Scots law. The second highest judicial
officer in Scotland, historically with special responsibil
ity for criminal law . The Lord Justice-Clerk presides
over the Second Division of the Inner House of the
Court ofSession.
Lord Justice General. Scots law. The highest judicial
officer in Scotland, and head ofthe High Court of Jus
ticiary. The Lord Justice General also holds the office
of Lord President of the Court ofSession.
Lord Justice ofAppeal. A judge ofthe English Court of
AppeaL Often shortened to lord justice. -Abbr. L.J.
(or, in pI., either LL.J. or L.JJ.).
Lord Keeper. See KEEPER OF THE GREAT SEAL.
Lord Keeper of the Great Seal. See KEEPER OF THE
GREAT SEAL.
Lord Keeper ofthe Privy Seal. See LORD PRIVY SEAL.
Lord Langdale's Act. See WILLS ACT (2).
Lord Lieutenant. 1. An honorary officeholder who is the
Queen's representative in a county and the principal
military officer there, originally appointed to muster
the inhabitants to defend the country. 2. Hist. The
former viceroy ofthe Crown in Ireland.
Lord Lyndhurst's Act. See LYNDHURST'S ACT.
Lord Lyon King at Arms. Scots law. The monarch's rep
resentative who grants arms to suitable applicants,
oversees the use of armorial bearings, holds court to
determine rights to arms and chieftainship, and super
vises mess |
the use of armorial bearings, holds court to
determine rights to arms and chieftainship, and super
vises messengers-at-arms.
Lord Mansfield's rule. The principle that neither spouse
may testify about whether the husband had access to
the wife at the time of a child's conception . In effect,
this rule which has been abandoned by most states loss
made it impossible to bastardize a child born during a
marriage. [Cases: Witnesses C=::oS7.]
Lord Mayor. 1. Hist. The chief officer of the corpora
tion of the city ofLondon, so called because the fourth
charter ofEdward IIIconferred on that officer the honor
ofhaving maces carried before him by the sergeants. 2.
The title of the principal magistrate of a city, the office
ofwhich has been conferred by letters patent.
lord mayor's court. See COURT.
Lord of Appeal. A member of the House of Lords, of
whom at least three must be present for the hearing
and determination of appeals, and including the Lord
Chancellor, the Lords of Appeal in Ordinary, and the
peers that have held high judicial offices, such as ex
chancellors and judges of the superior court in Great
Britain and Ireland.
Lord of Appeal in Ordinary. A person appointed and
salaried to aid the House of Lords in the hearing of
appeals. "These lords rank as barons for life, and sit
and vote in the House of Lords even after retirement.
Cf. LAW LORD.
Lord of Parliament. A member of the House ofLords.
Lord of Session. Scots law. Any judge of the Court of
Session. -Also termed Senator ofthe College ofJustice.
See COURT OF SESSION (1).
Lord Ordinary. Scots law. A judge ofthe Court ofSession,
sitting alone at first instance in the Outer House. See
COURT OF SESSION (1).
Lord President. Scots law. The highest judicial officer in
Scotland, heading the Court of Session and the First
Division ofthe Upper House . The Lord President also
holds the office of Lord Justice-General ofScotland.
Lord Privy Seal (priv-ee). English law. An officer who has
custody of the privy seal and who authenticates either
a state document before it passes to receive the Great
Seal or a document that does not require the Great Seal
because ofits minor importance . The Lord Privy Seal
has nominal official duties but is often made a member
of the British cabinet. Also termed Keeper of the
Privy Seal; Lord Keeper ofthe Privy Seal; Privy Seal.
Lords. See HOUSE OF LORDS.
Lord's Day Act. See BLUE LAW.
lordship. 1. Dominion. 2. An honorary title used for a
nobleman other than a duke. 3. A customary title for a
judge or some other public official.
Lords Marchers. See MARCHERS.
lord spirituaL An archbishop or bishop who is a member
of the House ofLords.
lord temporaL A House of Lords member who is not
an ecclesiastic.
Lord Tenterden's rule. See EJUSDEM GENERIS.
loser-pays rule. See ENGLISH RULE.
loss. (bef. 12c) 1. An undesirable outcome of a risk;
the disappearance or diminution ofvalue, usu. in an
unexpected or relatively unpredictable way . When
the loss is a decrease in value, the usual method ofcal
culating the loss is to ascertain the amount by which
a thing's original cost exceeds its later selling price. 2.
Tax. The excess of a property's adjusted value over the
amount realized from its sale or other disposition. IRC
(26 USCA) 1001. Also termed realized loss. [Cases:
Internal Revenue 3. Insurance. The amount
of financial detriment caused by an insured person's
death or an insured property's damage, for which the
insurer becomes liable. 4. The failure to maintain pos
session of a thing.
actual loss. (18c) A loss resulting from the real and
substantial destruction ofinsured property.
actual total loss. 1. See total loss. 2. Marine insurance.
The total loss of a vessel covered by an insurance
policy (1) by its real and substantive destruction, (2)
by injuries that destroy its existence as a distinct indi
vidual ofa particular class, (3) by its being reduced to
a wreck irretrievably beyond repair, or (4) by its being
placed beyond the insured's control and beyond the
insured's power of recovery. [Cases: Insurance
2235.]
business loss. See ordinary loss.
capital loss. (1921) The loss realized upon selling or
exchanging a capital asset. Cf. CAPITAL GAIN.
casualty loss. (1934) For tax purposes, the total or
partial destruction of an asset resulting from an
unexpected or unusual event, such as an automobile
accident or a tornado. lCases: Internal Revenue
3416; Taxation
consequential loss. (1829) A loss arising from the
results ofdamage rather than from the damage itself.
A consequential loss is proximate when the natural
and probable effect ofthe wrongful conduct, under
the circumstances, is to set in operation the inter
vening cause from which the loss directly results.
When the loss is not the natural and probable effect
of the wrongful conduct, the loss is remote. -Also
termed indirect loss; consequential injury. Cf. direct
loss. [Cases: Damages (;:::J 15-23.]
constructive total loss. (1805) 1. Such serious damage
to the insured property that the cost ofrepairs would
exceed the value ofthe thing repaired. - A Iso termed
constructive los5. Insurance (;=::>2176. ] 2_
Marine underwriting. According to the traditional
American rule, such serious damage to the insured
property that the cost of repairs would exceed half
the value ofthe thing repaired. See total loss. [Cases:
Insurance (;::.)2236.]
direct loss. (ISc) A loss that results immediately and
proximately from an event. Cf. consequential loss.
disaster loss. A casualty loss sustained in a geographic
area that the President deSignates as a disaster area.
It may be treated as having occurred during the
previous tax year so that a victim may receive imme
diate tax benefits.
economic loss. See ECONOMIC LOSS. extraordinary loss. (17c) A loss that is both unusual
and infrequent, such as a loss resulting from a natural
disaster.
general average loss. Marine underwriting. A loss at
sea usu. incurred when cargo is thrown overboard to
save the ship; a loss due to the voluntary and inten
tional sacrifice ofpart ofa venture (usu. cargo) to save
the rest of the venture from imminent periL. Such
a loss is borne equally by all the interests concerned
in the venture. See AVERAGE (3). [Cases: Insurance
(;=::>2240.]
hobby loss. A nondeductible loss arising from a personal
hobby, as contrasted with an activity engaged in for
profit. The law generally presumes that an activity
is engaged in for profit ifprofits are earned during at
least three ofthe last five IRC (26 USCA) 183.
[Cases: Internal Revenue 3397.]
indirect loss. See consequential loss.
long-term capital loss. A loss on a capital asset held for
an extended period, usu. at least 12 months. [Cases:
Internal Revenue (;=::>3260.]
net loss. The excess of all expenses and losses over all
revenues and gains.
net operating loss. (1921) The excess of operating
expenses over revenues, the amount of which can
be deducted from gross income if other deductions
do not exceed gross income. Abbr. NOL. [Cases:
Internal Revenue (;::> 3399.]
ordinary loss. (1850) Tax. A loss incurred from the
sale or exchange of an item that is used in a trade
or business. The loss is deductible from ordinary
income, and thus is more beneficial to the taxpayer
than a capital loss. Also termed business loss.
out-aI-pocket loss. (1921) The difference between the
value ofwhat the buyer paid and the market value of
what was received in return. In breach-of-contract
cases, out-of-pocket loss is used to measure restitution
damages. [Cases: Damages Fraud (;=::>59(3).]
paper loss. (1924) A loss that is realized only by selling
something (such as a security) that has decreased in
market value. Also termed unrealized loss.
partial loss. A loss of part of the insured property;
damage not to a total loss. Cf. total loss.
[Cases: Insurance
particular average loss. Marine underwriting. A loss
suffered by and borne alone by particular interests
in a maritime venture. Such a loss is usu. a partial
loss. [Cases: Insurance
passive loss. A loss, with limited tax deductibility, from
an activity in which the taxpayer does not materially
participate, from a rental activity, or from a tax-shel
ter activity. [Cases: Internal Revenue (;:::>3418.]
pecuniary loss. A loss ofmoney or ofsomething having
monetary value. [Cases: Damages
product-liability loss. The total ofa taxpayer's product
liability expenses up to the amount ofthe taxpayer's
1031 lost earning capacity
net operating loss. IRC (26 USCA) 172(j)(1). -Abbr.
PLL. See net operating loss. [Cases: Internal Revenue
(:='3438.]
progressive loss. 1. Loss that spreads or becomes more
expensive to repair over time. 2. Late-manifesting
harm that is related to an event that caused immedi
ate harm, worsens over time, and is not catalyzed by
any additional causative agent. - A classic example is
asbestosis, a disease that manifests long after exposure
to asbestos fibers.
recognized loss. Tax. The portion ofa loss that is subject
to income taxation. IRC (26 C'SCA) 1001(c).
salvage loss. 1. Generally, a loss that presumptively
would have been a total loss if certain services had not
been rendered. 2. Marine underwriting. The difference
between the salvage value, less the salvage charges,
and the original value ofthe insured property. [Cases:
Insurance C=2233.]
total loss. (1924) The complete destruction of insured
property so that nothing of value remains and the
subject matter no longer exists in its original form.
Generally, a loss is total if, after the damage occurs, no
substantial remnant remains standing that a reason
ably prudent uninsured owner, desiring to rebuild,
would use as a basis to restore the property to its
original condition. Also termed actual total loss.
Cf. partial loss; constructive total loss. [Cases: Insur
ance C=:>2175.]
unrealized loss. See paper loss.
loss carryback. See CARRYBACK.
loss carryforward. See CARRYOVER.
loss carryover. See CARRYOVER.
loss insurance. See INSURANCE.
loss leader. (1922) A good or commodity sold at a very
low price, usu. below cost, to attract customers to buy
other items. -Sometimes shortened to leader. See BAIT
AND SWITCH.
loss-of-bargain damages. See benefit-of-the-bargain
damages under DAMAGES.
loss-of-bargain rule. (1903) The doctrine that damages
for a breach ofa contract should put the injured party
in the position it would have been in ifboth parties had
performed their contractual duties. [Cases: Damages
C=:> 117, 120(1).]
loss-of-chance doctrine. (1987) A rule in some states
providing a claim against a doctor who has engaged in
medical malpractice that, although it does not result in
a particular injury, decreases or eliminates the chance
ofsurviving or recovering from the preexisting condi
tion for which the doctor was consulted. Also termed
lost-chance doctrine; increased-risk-of-harm doctrine.
[Cases: Health C=833.]
loss ofconsortium (k;m-sor-shee-am). (1878) 1. A loss of
the benefits that one spouse is entitled to receive from
the other, including companionship, cooperation, aid,
affection, and sexual relations. _ Loss of consortium can be recoverable as damages from a tortfeasor in a
personal-injury or wrongful-death action. Originally,
only the husband could sue for loss ofconsortium. But
in 1950, nearly a century after the enactment of the
married women's property acts, a wife's action for neg
ligent impairment of consortium was first recognized.
Hitaffer v. Argonne Co., 183 F.2d 811 (D.C. Cir. 1950).
Today 48 states and the District ofColumbia recognize
both a husband's and a wife's right to sue for loss ofcon
sortium (Utah and Virginia do not). [Cases: Husband
and Wife C~209(3, 4).] 2. A similar loss of benefits
that one is entitled to receive from a parent or child.
See CONSORTIUM.
loss-of-use exclusion. See failure-to-perform exclusion
under EXCLUSION (3).
loss-payable clause. Insurance. An insurance-policy
provision that authorizes the payment of proceeds to
someone other than the named insured, esp. to someone
who has a security interest in the insured property. _
Typically, a loss-payable clause either designates the
person as a beneficiary ofthe proceeds or assigns to the
person a claim against the insurer, but the clause usu.
does not treat the person as an additional insured. See
MORTGAGE CLAUSE. [Cases: Insurance C=:>3450.]
loss payee. Insurance. A person or entity named in an
insurance policy (under a loss-payable clause) to be
paid ifthe insured property suffers a loss. [Cases: Insur
ance C:=-345 |
clause) to be
paid ifthe insured property suffers a loss. [Cases: Insur
ance C:=-3450.]
loss ratio. 1. Insurance. The ratio between premiums
paid and losses incurred during a given period. [Cases:
Insurance C=1540.J 2. A bank's loan losses compared
to its loan assets; a business's receivable losses compared
to its receivables.
loss reserve. See RESERVE.
lost, adj. (l6c) 1. (Of property) beyond the possession and
custody ofits owner and not locatable by diligent search
<lost at sea> <lost papers>. 2. (Of a person) missing
<lost child>. 3. Parliamentary law. (Of a motion)
rejected; not adopted <the motion is lost>.
lost boundary. See BOUNDARY.
lost-chance doctrine. (1985) 1. LOSS-OF-CHANCE
DOCTRINE. 2. A rule permitting a claim, in limited
circumstances, against someone who fails to come to
the aid ofa person who is in imminent danger ofbeing
injured or killed. Cf. GOOD SAMARITAN DOCTRINE.
lost corner. See CORNER.
lost earning capacity. (1908) A person's diminished
earning power resulting from an injury. -This impair
ment is recoverable as an element ofdamages in a tort
action. Cf. lost earnings under EARNINGS. (Cases:
Damages C'::::" 38.]
"To some extent the phrases 'loss of earnings' and 'loss
of earning capacity' are used interchangeably. But the pre'
ferred view is that they are different concepts. The former
covers real loss which can be proved at the trial; the latter
covers loss of the chances of getting equivalent work in
the future." R.F.V. Heuston, Salmond on the Law of Torts
572 (17th ed. 1977).
1032 lost earnings
lost earnings. See EARNINGS.
lost-expectation damages. See expectation damages
under DAMAGES.
lost or not lost. Marine insurance. A policy provision
fixing the effective date of the policy to a time preced
ing the policy date, even ifthe insured ship has already
been lost when the policy is executed, as long as neither
party then knows, or has means of knowing, that the
ship has been lost.
lost profits. 1. Contracts. A measure of damages that
allows a seller to collect the profits that would have been
made on the sale if the buyer had not breached. VCC
2-708(2). [Cases: Damages Sales (::::::>384(1).]
2. Patents. A measure ofdamages set by estimating the
net amount lost by a plaintiff-inventor because of the
infringing defendant's actions. -The plaintiff can ask
for a lost-profits recovery by showing that the patent is
in demand, that the plaintiff is able to meet the demand,
and that there are no acceptable non infringing alter
natives on the market. Also termed (redundantly)
lost-profits damages. [Cases: Patents (::::::>318.]
lost-profits damages. See LOST PROFITS (1).
lost property. See PROPERTY.
lost-sales-of-unpatented-items theory. Patents. A
theory of lost-profits remedy whereby compensation
is sought for sales of unpatented items that the plaintiff
would have sold along with patented items but for the
defendant's infringement.
lost-volume seller. (1974) A seller of goods who, after a
buyer has breached a sales contract, resells the goods
to a different buyer who would have bought identical
goods from the seller's inventory even if the original
buyer had not breached. -Such a seller is entitled to
lost profits, rather than contract price less market price,
as damages from the original buyer's breach. VCC
2-708(2). [Cases: Sales (::::::>384(7).]
lost will. See WILL.
lot. (bef. 12c) 1. A tract ofland, esp. one having specific
boundaries or being used for a given purpose.
minimum lot. A lot that has the least amount ofsquare
footage allowed a local zoning law. [Cases: Zoning
and Planning
nonconforming lot. A previously lawful lot that now
violates an amended or newly adopted zoning ordi
nance. [Cases: Zoning and Planning C=)321.]
2. An article that is the subject of a separate sale, lease,
or delivery, whether or not it is sufficient to perform the
contract. VCC 2-105(5); 2A-103(l)(s). 3. A speCified
number of shares or a quantity ofa commodity
designated for trading.
odd lot. A number of shares ofstock or the value of a
bond that is less than a round lot.
round lot. The established unit of trading for stocks
and bonds. _ A round lot of stock is usu. 100 shares,
and a round lot ofbonds is usu. $1,000 or $5,000 par
value. Also termed even lot; board lot. lot and scot. Hist. A collection of duties paid by voters
before voting in certain cities and boroughs.
lot line. (1829) A land boundary that separates one tract
from another <from the street to the alley, the lot line
is 150 feet>.
lottery. (l6c) A method of raising revenues, esp. state
government revenues, by selling tickets and giving
prizes (usu. cash prizes) to those who hold tickets with
winning numbers that are drawn at random. -Also
termed lotto. [Cases: Lotteries
Dutch lottery. A lottery in which tickets are drawn
from classes, and the number and value ofprizes are
fixed and increasing with each class. _ This type of
lottery originated in Holland in the 16th century.
Also termed class lottery.
Genoese lottery (jen-oh-eez or -ees). A lottery in which,
out of90 consecutive numbers, five are drawn by lot,
each player wagering that one or more ofthe numbers
they have chosen will be drawn . This type oflottery
originated in Genoa in about 1530. Also termed
number lottery; numerical lottery.
love day. See DAY.
Lovely claim. Hist. Property. An entitlement to settle
on and take ownership of public land in
created by the federal government for Lovely County
settlers who were displaced by an 1828 treaty that gave
the settlers' land to the Cherokee nation . The term
gets its name from Lovely County in the Arkansas ter
ritory, which straddled what is now the Oklahoma
Arkansas border. The treaty divided the county,
granted the portion west of the Mississippi River to
the Cherokee nation, and required the settlers in that
territory to relocate. On May 24, 1828, Congress passed
an act granting relief to Lovely County settlers who
were forced to leave the Cherokee land and granted
them land on the eastern side ofthe river. Lovely claims
are found in chains oftitle in Arkansas. [Cases: Public
Lands (::::::>45.]
lowbote (loh-boht). Hist. Compensation paid for the
death ofone killed in a disturbance.
low diligence. See slight diligence under DILIGENCE.
lower chamber. See CHAMBER.
lower court. 1. See court below under COURT. 2. See
inferior court under COURT.
lower estate. See servient estate under ESTATE (4).
lower low tide. See TIDE.
lower-of-cost-or-market method. (1958) A means of
pricing or costing inventory by which inventory value is
set at either acquisition cost or market cost, whichever
is lower. [Cases: Internal Revenue
lower scale. See SCALE.
lowest responsible bidder. (1844) A bidder who has the
lowest price conforming to the contract specifications
and who is financially able and competent to complete
the work, as shown by the bidder's prior performance.
[Cases: Public Contracts
1033
low-grade security. See SECURITY.
low justice. See JUSTICE (3).
low-total voting. See VOTING.
low-water mark. See WATERMARK.
loyalty, n. (ISc) Faithfulness or allegiance to a person,
cause, duty, or government. -loyal, adj.
loyalty oath. See oath ofallegiance under OATH.
L.P. See limited partnership under PART~ERSHIP.
L.R. abbr. Law Reports. See REPORT (3).
LRIC. abbr. LONG-RUN INCREMENTAL COST.
L.S. abbr. LOCUS SIGILLI.
LSAT. abbr. LAW SCHOOL ADMISSIONS TEST.
Ltd. abbr. Limited -used in company names to indicate
limited liability.
LTV ratio. See LOAN-TO-VALUE RATIO.
luce darius (lao-see klair-ee-<'Is). [Latin] Scots law.
Clearer than light. The phrase expresses the idea that
the evidence is very clear, usu. in circumstances neces
sary to support a conviction in a criminal case. -Also
termed luce meridiana clariores.
lucid, adj. (16c) 1. Understandable. 2. Rational. 3.
Sane.
lucid interval. (17c) 1. A brief period during which an
insane person regains sanity sufficient to have the legal
capacity to contract and act on his or her own behalf.
[Cases: Mental Health C=>3.l, 371; Wills 2.
A period during which a person has enough mental
capacity to understand the concept of marriage and
the duties and obligations it imposes. [Cases: Marriage
3. A period during which an otherwise incompe
tent person regains sufficient testamentary capacity to
execute a valid will. Also termed lucid moment.
lucid moment. See LUCID INTERVAL.
lucra nuptialia (loo-kra nap-shee-ay-l<'l). [Latin] Roman
law. The property that one spouse receives from another,
whether by gift, marriage-gift, dos, or testamentary dis
position. See POENAE SECU~DARUM NUPTIARUM.
lucrativa causa (loo-kr~-tI-v~ kaw-z~). [Latin] Roman
law. Enrichment for which the acquirer pays nothing
(e.g., a bequest). -Also termed causa lucrativa.
lucrativa usucapio pro herede (loo-kra-tI-v<'l yoo-z[y]oo
kay-pee-oh or -kap-ee-oh). [Latin] Roman law. A means
ofacquiring title to land that an heir has not possessed
and excluding the rightful heirs by holding it for one
year after the death ofthe landowner. There was no
requirement that the possessor act in good faith. '[his
practice survived from primitive law. Also termed
lucrativa uscapio pro herede. See USUCAPIO.
lucrative (loo-kr~-tiv adj. (lSc) 1. Profitable; remu
nerative <a lucrative business>. 2. Civil law. Acquired
or held without accepting burdensome conditions or
giving consideration <lucrative ownership>.
lucrative bailment. See bailment for hire under
BAILMENT. lump-sum agreement
lucrative office. See OFFICE.
lucrative succession. See PRAECEPTIO HAEREDITA1'IS.
lucrative title. See TITLE (2).
lucre (loo-kar), n. Monetary gain; profit.
lucri causa (loo-kn kaw-z~). [Latin] For the sake of
gain. Lucri causa was formerly an essential element
oflarceny, but today the thief's intent to deprive the
possessor of property is generally sufficient. See
LARCENY.
"'Lucri causa' literally means for the sake of gain. On rare
occasions the suggestion has been made that no taking is
with intent to steal unless the thief is motivated by some
purpose of gain or advantage. Even those advancing
this suggestion have not insisted upon an intent to gain
a pecuniary advantage. An intent to take away property
and destroy it for the purpose of destroying evidence has
been held to be sufficient even by those who have been
inclined to insist upon lucri causa as essential to an intent
to steal. The generally accepted view does not include this
element at all. It regards intent to deprive the owner of his
property permanently, or an intent to deal with another's
property unlawfully in such a manner as to create an obvi
ously unreasonable risk of permanent deprivation. as all
that is required to constitute the animus furandi -or intent
to steal." Rollin M. Perkins & Ronald N. Boyce, Criminal Law
332-33 (3d ed. 1982).
lucro captando. 1. See CERTANS DE LUCRO CAPTANDO.
2. IN LUCRO CAPTANDO.
lucrum (loo-kr~m), 11. [Latin] 1. Romal11aw. Gain; profit.
2. Hist. A small parcel ofland.
lucrum cessans (loo-kr;:Jm ses-anz). [Law Latin "ceasing
gain"] Hist. Damages awarded to include a loss of
anticipated profit in addition to an actual realizable
loss. Also termed lucrum interceptum. See DAMNUM
EMERGENS.
lucrum interceptum (loo-kram in-t;:Jr-sep-t;:Jm). See
LUCRUM CESSANS.
luctuosa hereditas (l;:Jk-choo-oh-sa h~-red-i-tas), n.
[Latin "mournful inheritance"] See hereditas luctuosa
under HEREDITAS.
luctus (13k-t~s 11. [Latin] Roman law. Mourning. -Also
termed tempus lugendi.
ludere in extremis (loo-dd-ree in ek-stree-mis). [Latin]
Hist. To make sport on deathbed. A person was
presumed never to trifle at the point ofdeath.
lukewarm ben |
To make sport on deathbed. A person was
presumed never to trifle at the point ofdeath.
lukewarm bench. See BENCH.
luminar (loo-m;:J-nair-ee), n. [Latin "lamp"] Hist. A
small lamp or candle set burning on a church altar,
the maintenance of which was provided by lands and
rents. PI. luminaria.
lumping. Criminal procedure. lhe imposition ofa general
sentence on a criminal defendant. See general sentence
under SENTENCE.
lumping sale. See SALE.
lump-sum agreement. Int'llaw. An agreement for one
nation that caused inj uries to another nation's citizens
to make a Single payment to the other nation to settle
outstanding claims for those injuries. The recipi
ent nation has the power to decide how the settlement
1034 lump-sum alimony
funds should be distributed. This method of settling
claims has become increasingly common since the
mid-20th century as an alternative to submitting the
claims to an international tribunal.
lump-sum alimony. See alimony in gross under
ALIMONY.
lump-sum payment. See PAYMENT.
lunacy. See INSANITY.
lunar month. See MONTH (3).
lunatic, n. Archaic. An insane person. See INSANE.
dangerous lunatic. A mentally incompetent person
who seems reasonably likely to harm himself or
herself, another person, or property.
lunch-hour rule. The doctrine that an employer is
not responsible for injuries suffered or caused by an
employee who takes a lunch break off work premises
and, during the break, is not performing tasks in the
course of the employment. [Cases: Workers' Compen
sation ~758, 768.]
luxury tax. See TAX.
LWI. abbr. LEGAL WRITING INSTITUTE.
lying by. The act or fact ofbeing present at a transaction
affecting one's interests but remaining silent. Courts often treat a person who was "lying by" at a transac
tion as having agreed to it and as being prevented from
objecting to it.
lying in wait. Criminal law. The series ofacts involved in
watching, waiting for, and hiding from someone, with
the intent of killing or inflicting serious bodily injury
on that person . Because lying in wait shows premedi
tation and deliberation, it can result in an increased
sentence.
lynch, vb. (1836) (Of a mob) to kill (somebody) without
legal authority, usu. by hanging. [Cases: Rescue ~1;
Riot~L]
lynch law. (1811) The administration of summary pun
ishment, esp. death, for an alleged crime, without legal
authority. -Also termed (through personification)
Judge Lynch.
lynching law. See ANTILYNCHING LAW.
Lyndhurst's Act. Hist. An English statute that rendered
marriages within certain degrees of kinship null and
void. Marriage Act of 1835, 5 & 6 Will. 4, ch. 54. -Also
termed Lord Lyndhurst's Act.
lytae (h-tee), n. [Latin, fr. Greek] Roman law. Civil-law
students in their fourth year of study.
M
M. 1. abbr. MORTGAGE. 2. Hist. A letter engraved on a
treasury note to show that the note bears interest at the
rate ofone mill per centum. 3. Hist. A brand placed on
the left thumb of a person convicted of manslaughter
who claimed the benefit ofclergy.
M1. A measure of the money supply including cash,
checking accounts, and travelers' checks.
M2. A measure of the money supply including Ml
items, plus savings and time deposits, money-market
accounts, and overnight-repurchase agreements.
M3. A measure ofthe money supply including M2 items,
plus large time deposits and money-market funds held
by institutions.
mace. (14c) 1. Hist. A weapon used in warfare, consist
ing of a staff topped by a heavy head, usu. of metal. 2.
A scepter; an ornamental form of weapon used as an
emblem ofthe dignity ofan office, as in Parliament and
the U.S. House of Representatives. -In the House of
Commons, it is laid on the table when the Speaker is in
the chair. In the U.S. House ofRepresentatives, it is usu.
placed to the right ofthe Speaker and is borne upright
by the sergeant-at -arms on extraordinary occasions, as
when necessary to quell a disturbance or bring refrac
tory members to order. 3. (cap.) The trademarked name
of a chemical liquid that can be sprayed in a person's
face to cause dizziness and temporary immobiliza
tion.
mace-bearer. A person who carries a mace betore an
official, usu. one of high rank. See MACE (2).
Macedonian Decree. See SENATUS CONSULTUM MACE
DONIAUM.
mace-greff (mays-gref). Hist. A purchaser of stolen
goods; esp. a person who knOWingly buys stolen
food. Also spelled mace-griefe.
mace-proof, vb. To exempt from an arrest; to secure
against an arrest.
macer. Scots law. See BAILIFF (1).
machination (mak-~-nay-sh;)ll). (lSc) 1. An act of
planning a scheme, esp. for an evil purpose. 2. The
scheme so planned.
machine. (16c) Patents. A device or apparatus consist- '
ing of fixed and moving parts that work together to
perform some function. -Machines are one ofthe stat
utory categories ofinventions that can be patented.
Also termed apparatus; device. Cf. MANUFACTURE;
PROCESS (3). [Cases: Patents 10.]
Machinists preemption. See PREEMPTION.
MACRS. abbr. Modified Accelerated Cost Recovery
System. See ACCELERATED COST RECOVERY SYSTEM. mactator (mak-tay-t;:,r), n. [Law Latin "slaughterer"]
Hist. A murderer.
maculare (mak-y;:,-lair-ee), vb. [Law Latin] Hist. To
wound (a person).
made land. See LAND.
made law. See POSITIVE LAW.
Madison Amendment. See TWENTY-SEVENTH AMEND
MENT.
Mad Parliament. In 1258, a commission of24 barons
summoned to Oxford by Henry III to carry out certain
reforms and settle differences between the king and
the barons. -The assembly was called the Mad Parlia
ment because it ultimately abridged the king's power
and gave unprecedented powers to the barons. The
commission produced the Provisions of Oxford.
Also termed parliamentum insanum. See PROVISIONS
OF OXFORD.
Madrid Agreement. Trademarks. 1. An 1890 treaty
establishing a system for the international registra
tion of trademarks. -The agreement's official name
is the Madrid Arrangement Concerning the Interna
tional Registration of Marks. A product ofthe Madrid
Revision Conference ofthe Paris Convention in 1890, it
was last revised in 1967. Under this treaty's registration
system, called the Madrid Union, a mark registered in a
treaty nation that is also registered (in French) with the
World Intellectual Property Organization receives equal
protection in all signatory nations. 'The United States
ratified the treaty in 2002. 2. An 1890 treaty designed
to discourage false indications of geographic source
by permitting member nations to seize falsely marked
imported goods. Also termed Madrid Arrangement;
Madrid Registration ofMarks Treaty; Madrid Union.
Also a product of the Madrid Revision Conference of
the Paris Convention in 1890, the treaty's official name
is the Madrid Arrangement Concerning the Prevention
ofFalse or Deceptive Indications ofSource. It applies to
manufactured and handmade goods, and agricultural
products. Also termed (in sense 2) Madrid Agree
ment for the Repression ofFalse or Deceptive Indications
ofSource ofGoods.
Madrid Protocol. Trademarks. 1. A 1996 international
agreement that allows citizens ofa Madrid Agreement
signatory nation to apply for a single international
trademark through the World Intellectual Property
Organization instead of registering the trademark in
each individual nation. _ An applicant must apply for
the trademark's registration in a treaty-member nation
before applying for international trademark protec
tion. 2. A 1989 international trademark-registration
agreement that supplements the Madrid Agreement on
trademark registration, harmonizes the Agreement's
1036 Madrid Registration of Marks Treaty
registration system with that of the European Union,
and allows citizens ofnonmember nations to apply for
international trademark registration without first reg
istering the trademark in a member nation . 'When
referred to along with the Madrid Registration of
Marks Treaty, it is sometimes also termed the Madrid
System. See MADRID AGREEMENT (1).
Madrid Registration of Marks Treaty. See MADRID
AGREEMENT (1).
Madrid System. See MADRID PROTOCOL (2).
Madrid Union. See MADRID AGREEMENT (1).
maegbote. See BOTE (2).
magister (m<l-jis-t<lr), n. [fro Latin magis "more"] Roman
law. 1. A master; a superior, esp. by office or position.
2. A teacher; esp., one who has obtained eminence in a
particular field oflearning.
magister adfacultates (m<l-jis-t<lr ad fak-<ll-tay-teez),
n. [Latin "master for permissions"] Eccles. law. 1. An
officer who grants dispensations, as to marry or to
eat meat on prohibited days. 2. MASTER OF THE FAC
ULTIES.
magister bonorum vendendorum (md-jis-t<lr
ba-nor-<lm ven-den-dor-<lm). [Law Latin "master for
sale of goods"] Roman law. A master appointed by
the creditors ofan insolvent debtor to direct the sale
of the debtor's entire estate at auction.
magister cancellariae (m<l-jis-t<lr kan-s<l-lair-ee-ee),
n. [Law Latin "master in chancery"] Hist. A master
in chancery so called because the officer was a
priest.
magister libellorum (m<l-jis-tdr lI-bd-lor-dm). [Latin
"master of written petitions"] Roman law. The chief
of the imperial chancery bureau that handled peti
tions to the emperor.
magister litis (ma-jis-tar II-tis), n. [Latin "master
of a lawsuit"] Roman law. A person who directs or
controls a lawsuit.
magister navis (m<l-jis-t<lf nay-vis). [Latin "master of
a ship"] Roman law. The master ofa trading vessel.
The master's trading debts, including the ship's main
tenance expenses, gave rise to an actio exercitoria. See
actio exercitoria under ACTIO.
magister palatii (ma-jis-t<lr pa-Iay-shee-I), n. [Latin
"master of the palace"] Civil law. A master of the
palace, similar to the English Lord Chamberlain.
magister societatis (ma-jis-tar sa-sJ-<l-tay-tis). [Latin
"master of partnership"] Roman law. A person
appointed to administer a partnership's business; a
managing partner or an employee.
magisterial (maj-i}-steer-ee-a!), adj. (17c) Ofor relating
to the character, office, powers, or duties of a magis
trate. -Also termed magistral; magistratic. [Cases:
Justices ofthe Peace (;':=> 1.]
magisterial district. See magisterial precinct under
PRECINCT.
magisterial precinct. See PRECINCT. magistracy (maj-a-stra-see). (16c) 1. The office, district,
or power of a magistrate. 2. A body of magistrates.
[Cases: Justices of the Peace
magistral, adj. (16c) 1. Of or relating to a master or
masters <an absolutely magistral work>. 2. Formu
lated by a physician <a magistral ointment>. 3. MAG
ISTERIAL.
magistralia brevia (maj-d-stray-lee-<l bree-vee-<l), n.
[Law Latin "magisterial writs"] Hist. Magisterial writs,
which were drafted by clerks ofthe chancery for use in
special matters.
magistrate (maj-a-strayt), n. (14c) 1. The highest-rank
ing official in a government, such as the king in a
monarchy, the president in a republic, or the governor
in a state. -Also termed chief magistrate;first magis
trate. [Cases: States 2. A local official who pos
sesses whatever power is specified in the appointment
or statutory grant ofauthority. 3. A judicial officer with
strictly limited jurisdiction and authority, often on the
local level and often restricted to criminal cases. Cf.
JUSTICE OF THE PEACE. [Cases: Justices ofthe Peace (;':=>
31.J 4. See judicial officer (3) under OFFICER. -magis
terial (maj-d-stir-ee-al), adj.
committing magistrate. (18c) A judicial officer who
conducts preliminary criminal hearings and may
order that a defendant be released for lack of evidence,
sent to jail to await trial, or released on bail. See exam
ining court under COURT.
district-court magistrate. (1932) In some states, a
quasi-judicial officer given the power to set bail,
accept bond, accept guilty pleas, impose sentences
for traffic violations and similar offenses, and conduct
informal hearings on civil infractions. [Cases: Justices
of the Peace (;':=>31.] |
conduct
informal hearings on civil infractions. [Cases: Justices
of the Peace (;':=>31.]
federal magistrate. See UNITED STATES MAGISTRATE
JUDGE.
investigating magistrate. (1908) A quasi-judicial officer
responsible for examining and sometimes ruling on
certain aspects of a criminal proceeding before it
comes before a judge.
"The institution of the investigating magistrate is another
measure for preserving the integrity of the law at the level
of enforcement. In this case the measure is directed not
toward curing the evils of a lax or sporadic enforcement,
but toward the eVils of an opposite nature, those resulting
from an excess of zeal on the part of the prosecutor. Under
the system in question, before a criminal charge may be
brought before the regular courts it must be investigated
by a special offiCial and, in effect, certified as deserving
trial in court. The investigating magistrate is thus a kind
of quasi-judge standing halfway between the prosecutor
and the regular court. The danger of the institution lies pre
cisely in this twilight zone of function which it occupies, The
certification of a case for trial inevitably tends to confirm
the criminal charge against the suspect, thus creating what
may amount in practice to a strong presumption of gUilt.
The element of prejudgment involved constitutes a threat
to the integrity of the trial in open court; the accused has,
in effect, had a kind of half-trial in advance of the real trial,
and this halftrial is conducted, not before but bya kind of
half-judge who acts essentially as an inquisitorial court.
in those countries where it is a part of the legal system,
the role of the investigating magistrate continues to be
1037
a subject of some debate, and even where it is generally
accepted, there is always some lingering concern lest it
become the subject of inconspicuous abuse." Lon L Fuller,
Anatomy of the Law 38~39 (1968).
metropolitan stipendiary magistrate (stI-pen-dee-er
ee). English law. A stipendiary magistrate with juris
diction in inner London areas. _ Under the Access to
Justice Act 1999, these magistrates have been renamed
district judges (magistrates' courts). See stipendiary
magistrate.
police magistrate. (I8c) A judicial officer who has juris
diction to try minor criminal offenses, breaches of
police regulations, and similar violations. -Also
termed police justice.
stipendiary magistrate (stI -pen-dee-er-ee). English
law. A salaried magistrate that performs either in
the place of or along with Justices of the Peace, and
is appointed from barristers and solicitors ofseven
years standing.
U.S. Magistrate. See UNITED STATES MAGISTRATE
rUDGE.
Magistrate Judge, U.S. See UNITED STATES MAGISTRATE
rUDGE.
magistrate's court. See COURT.
magistratic, adj. See MAGISTERIAL
magistratus (maj-a-stray-i<'1s), n. [fro Latin magister "a
master"] Roman law. 1. A magistrate. 2. A magistrate's
office.
"Magistratus. Denotes both the public office and the
official himself. Magistracy was a Republican institution;
under the Principate some magistratus continued to exist
but with gradually diminishing importance; in the post
Diocletian Empire some former magistracies still exist
but reduced nearly completely to an honorific title ...
The most characteristic features of the Republican magis
tracy were the limited duration (one year) and colleague
ship since each magistracy was covered by at least two
persons ... with equal power .... Magistrates were elected
by the people.. . During his year of service a magistratus
could not be removed. Misdemeanor in office could be
prosecuted only after the term, hence the tenure of an
office for two consecutive years was prohibited. .. The
tenure of a public office was considered an honor; for that
reason the magistrates did not receive any compensation.
Their political influence was, however, of greatest impor
tance ...." Adolf Berger, Encyclopedic Dictionary ofRoman
Law 571-72 (1953).
magistratus majores (maj-<l-stray-tds m<l-jor-eez). [Latin
"superior magistrates"] Roman law. Magistrates with
superior powers, including the power to review their
own judgments. Cf. MAGISTRATUS MINORES.
magistratus minores (maj-d-stray-t<ls mi-nor-eez).
[Latin "lesser magistrates"] Roman law. Magistrates
with limited powers. Cf. MAGISTRATUS MATORES.
"The mag/stratus minares were officials of minor impor'
tance, they had no Imperium and were vested with a
restricted jurisdiction and some functions in specific
fields .... The tenure of a minor magistracy opened the
way for the quaestorship, the first step in the career of
magistratus maiares." Adolf Berger, Encyclopedic Diction
ary ofRoman Law 572 (1953). magnus rotulus statutorum
magna assisa (mag-na a-SI-zd), n. [Law Latin] Rist. The
grand assize. See grand assize under ASSIZE (5).
magna assisa eligenda (mag-n<l <l-SI-Za el-a-jen-d<l). See
DE MAGNA ASSISA ELIGENDA.
Magna Carta (mag-n<l kahr-ta). [Latin "great charter"]
The English charter that King John granted to the
barons in 1215 and that Henry III and Edward I later
confirmed. -It is generally regarded as one ofthe great
common-law documents and as the foundation ofcon
stitutionalliberties. The other three great charters of
English liberty are the Petition ofRight (3 Car. (1628),
the Habeas Corpus Act (31 Car. 2 (1679)), and the Bill
of Rights (1 Will. & M. (1689)). Also spelled Magna
Charta.
"The history of Magna Carta is the history not only of a
document but also of an argument. The history of the
document is a history of repeated reinterpretation. But the
history of the argument is a history of a continuous element
of political thinking. In this light there is no inherent reason
why an assertion of law originally conceived in aristocratic
interests should not be applied on a wider scale." J.e. Holt,
Magna Carta 16 (1965).
"Magna Carta came to be reckoned as the beginning
of English statute law; it was printed as the first of the
statutes of the realm. But to explain this we have first to
remark that of Magna Carta there are several editions.
We have four versions of the charter, that of 1215, that
of 1216, that of 1217 and that of 1225, and between them
there are important differences. Several clauses which
were contained in the charter of 1215 were omitted in that
of 1216 and were never again inserted. It seems to have
been thought unadvisable to bind the young king to some
of the more stringent conditions to which John had been
subjected. The charter of 1217 again differs from that of
1216. Substantially it is in 1217 that the charter takes its
final form; still it is the charter of 1225 which is the Magna
Carta of all future times. That there were four versions
is a fact to be carefully remembered; it is never enough
to refer to Magna Carta without saying which edition you
mean." FW. Maitland, The Constitutional History ofEngland
15 (1908; repro 1955).
magna centum (mag-na sen-t<lm), n. [Law Latin "great
hundred"] Six score, or 120.
magna culpa (mag-na k<li-p<l). [Latin "great fault"]
Roman law. Gross fault. -This is sometimes equiva
lent to dolus. See DOLUS.
magna neglegentia. See gross negligence under NEGLI
GENCE.
magnum cape. See cape magnum under CAPE.
Magnuson-Moss Warranty Act (mag-na-s<ln-maws
or -mos). A federal statute requiring that a written
warranty of a consumer product fully and conspicu
ously disclose, in plain language, the terms and condi
tions ofthe warranty, including whether the warranty
is full or limited, according to standards given in the
statute. 15 USCA 2301-2312. [Cases: Antitrust and
Trade Regulation (=>204.J
magnus rotulus statutorum (mag-nas roch-d-l<ls stach
;:I-tor-<lm). [Law Latin "the great statute roll"J The first
of the English statute rolls, beginning with Magna
Carta and ending with Edward III.
mahr 1038
mahr, n. Islamic law. A gift of money or property that
must be made by a man to the woman he marries . The
parties agree to the mahr's amount and time ofpayment
before marrying. Ifthe time of payment is indefinite or
ifthe mahr's outstanding balance is not paid sooner, the
agreed amount or outstanding balance becomes due on
divorce or the husband's death. Despite the religious
basis for a mahr, secular courts may uphold the agree
ment ifits secular terms are enforceable as a prenuptial
contract. Also termed sadaq. Cf. NIKAH.
maiden. (bef. 12c) 1. A young unmarried woman. 2.
Scots law. An instrument used to behead criminals .
The Earl of Morton, who had introduced the instru
ment to Scotland, was the first to be executed by it, in
1581. It was the prototype of the guillotine. Hence, "to
kiss the maiden was to be put to death." H. Percy Smith,
Glossary ofTerms and Phrases 307 (1883).
maiden assize. See ASSIZE (1).
maiden name. See NAME.
maiden rent. See MARCHET.
maiestas (m<:l-yes-tas). See MAJESTAS.
maihem. See MAIM.
maihematus (may-h<:l-may-t"s), p.pl. [Law Latin]
Maimed; wounded.
maihemium. See MAIM.
mail, n. (l3c) 1. One or more items that have been
properly addressed, stamped with postage, and depos
ited for delivery in the postal system. [Cases: Postal
Service 2. An official system for delivering such
items; the postal system. [Cases: Postal Service ():::J3.]
3. One or more written or oral messages sent electroni
cally (e.g., through e-mail or voicemail). [Cases: Tele
communications ~1343.]
certified mail. Mail for which the sender requests
proof of delivery in the form of a receipt signed by
the addressee . The receipt (a green card, which is
usu. referred to as such) must be signed before the
mail will be delivered. Also termed certified mail,
return receipt requested. [Cases: Postal Service V
19,22,23.]
registered mail. Mail that the U.S. Postal Service
records at the time of mailing and at each point on
its route so as to guarantee safe delivery. [Cases: Postal
Service 22,23.J
mail, vb. (1827) 1. To deposit (a letter, package, etc.) with
the U.S. Postal Service; to ensure that a letter, package,
etc. is properly addressed, stamped, and placed into a
receptacle for mail pickup. [Cases: Postal Service C:::>
19.] 2. To deliver (a letter, package, etc.) to a private
courier service that undertakes delivery to a third
person, often within a specified time.
mailable, adj. (Of a letter or package) lawful to send
through a postal service. [Cases: Postal Service ~
13.]
mailbox rule. (1975) 1. Contracts. The principle that
an acceptance becomes effective -and binds the offeror once it has been properly mailed. The
mailbox rule does not apply, however, ifthe offer spec
ifies that an acceptance is not effective until received.
[Cases: Contracts ():::J22(l).] 2. The principle that when
a pleading or other document is filed or served by mail,
filing or service is deemed to have occurred on the date
ofmailing. The mailbox rule varies from jurisdiction
to jurisdiction. It may apply only to certain types of
filings, or it may apply to the use ofan overnight courier
instead of the U.S. maiL Also termed dispatch rule.
[Cases: Habeas Corpus ~603; Pleading ():::J40, 333;
Process Time (;:)3.5.]
mail cover. (1959) A process by which the U.S. Postal
Service prOVides a government agency with informa
tion on the face of an envelope or package (such as a
postmark) for the agency's use in locating a fugitive,
identifying a coconspirator, or obtaining other evidence
necessary to solve a crime. [Cases: Postal Service C-~
47.J
mail fraud. See FRAUD.
mail-order divorce. See DIVORCE.
maim, n. (14c) Archaic. The type of strength-diminish
ing injury required to support a charge of mayhem;
esp., serious injury to a body part that is necessary for
fighting. Also termed maihem; maihemium. See
MAYHEM. [Cases: Mayhem -maim, vb.
"Maihem or maim is where by the wrongful act of another
any member is hurt or taken away, whereby the party is
made unperfect to fight: as if a bone be taken out of the
hand .... But the cutting of an ear or nose, or breaking of
the hinder teeth, or such like, is no maihem, because it is
rather a deformity of body than diminishing of strength;
and that is commonly tried by the justices beholding the
party. And if the justices stand in doubt whether the hurt
be a maihem or not, they use and will of their own discre
tion take the help and opinion of some skilful chirurgeon,
to conSider thereof, |
will of their own discre
tion take the help and opinion of some skilful chirurgeon,
to conSider thereof, before they determine upon the cause."
Termes de la Ley 283-84 (1 st Am. ed. 1812).
"'Maim' is the modern equivalent of the old word 'mayhem:
and some have long been inclined to abandon the earlier
word entirely. There is a tendency, on the other hand, to
retain 'mayhem' for the offense and to use 'maim' for the
type of injury originally required for such a crime. This
usage has a distinct advantage because statutory enlarge
ments have included another type of injury within the
scope of this offense, and today mayhem (the offense)
may involve something other than maim (the injury)." Rollin
M. Perkins &. Ronald N. Boyce, Criminal Law 239 (3d ed.
1982).
mainad (may-n<:ld). [fro Saxon manath "a deceitful oath"]
Hist. Perjury.
main-a-main (may-nah-mayn), adv. [Law French] Hist.
Immediately.
main channel. See CHANNEL.
main demand. See DEMAND (1).
maine-port. Hist. A small tribute (such as loaves of
bread) that parishioners pay to the rector in lieu of
tithes.
main motion. See MOTION (2).
main opinion. See majority opinion under OPINION (1).
1039 maintenance and cure
mainour (may-nar), n. [fro Law French manier "to
handle"] Hist. A stolen article found in the hands of a
thief. -At common law, the thief could be arraigned and
tried without an indictment. -Also spelled manour;
meinour. Also termed mannopus; manuopus.
mainovre (m~-noo-v<'lr), n. [fr. Law French main "hand"
+ oeuvre "work"] Hist. 1. A trespass committed by
hand. 2. Manual labor. Also spelled mainoeuvre.
mainpernable (mayn-par-n~-bal), adj. Capable ofbeing
bailed (mainprised); bailable. See MAINPRISE (2).
mainpernor (mayn-par-n~r), n. [Law French, fro Old
French main "hand" +pernor "taker"] Hist. 1. A surety
for a prisoner's appearance; one who gives mainprise
for another. Also termed mainpriser.
"Mainpernors differ from bail, in that a man's bail may
imprison or surrender him up before the stipulated day of
appearance; mainpernors can do neither, but are barely
sureties for his appearance at the day: bail are only sureties,
that the party be answerable for the special matter for
which they stipulate; mainpernors are bound to produce
him to answer all charges whatsoever." 3 William Black
stone, Commentaries on the Laws of England 128 (1768).
2. A form of bail taken under a writ of mainprise.
Also termed manucaptor (man-yoo-kap-tar). See
MAINPRISE.
main pot. 'Tax. A step in evaluating tax liability in which
qualified transactions are compared to determine
whether a net gain or loss has occurred. IRC (26 USCA)
1231. -Also termed big pot; hotchpot; hodgepodge.
Cf. CASUALTY POT.
mainprise (mayn-pnz), n. [Law French, fr. Old French
main "hand" + prise "taking") Hist. 1. Delivery of a
prisoner to the mainpernor. 2. A suretyship undertak
ing that makes the surety responsible for a prisoner's
appearance in court on a specified date and time. 3. A
writ ordering the sheriff to take the security ofa main
pernor for the prisoner's appearance and release the
prisoner. -Also spelled mainprize. -Also termed
writ ofmainprise; manucaption (man-yoo-kap-shan).
See DE HOMINE REPLEGIANDO.
mainprise, vb. Hist. To release (a prisoner) on the surety
ofa mainpernor.
main-purpose rule. Contracts. The doctrine that if a
promise to guarantee another's debt is made primar
ily for the promisor's own benefit, then the statute of
frauds does not apply and the promise need not be in
writing to be enforceable. Also termed main-purpose
doctrine; leading-object rule. [Cases: Frauds, Statute
ofG'::J23.]
main-relief rule. A doctrine by which venue for a lawsuit
may be founded on the primary relief sought by the
plaintiff, even if other claims, which alone would not
support venue, are included in the suit. [Cases: Venue
~2.1
main-rent. See VASSALAGE (2).
main sea. See SEA.
mainstreaming. (1973) The practice of educating a disabled, in a regular-education setting, as opposed
to a special-education class. Cf. LEAST-RESTRICTIVE
ENVIRONMENT. [Cases: Schools ~154(2).]
mainsworn (mayn-sworn), p.pl. Hist. Forsworn, by
making a false oath with a hand on a book. -This was
used primarily in north England.
maintain, vb. (14c) 1. To continue (something). 2. To
continue in possession of (property, etc.). 3. To assert (a
position or opinion); to uphold (a position or opinion)
in argument. 4. To care for (property) for purposes of
operational productivity or appearance; to engage in
general repair and upkeep. 5. To support (someone)
financially; esp. to pay alimony to. [Cases: Divorce ~
231-247; Husband and Wife ~282-301.16. (Of a third
party to a lawsuit) to assist a litigant in prosecuting or
defending a lawsuit; to meddle in someone else's litiga
tion. [Cases: Champerty and Maintenance
maintainor. (I5c) Criminal law. A person who meddles
in someone else's litigation by providing money or other
assistance; a person who is guilty of maintenance.
Also spelled maintainer. See MAINTENANCE (6). [Cases:
Champerty and Maintenance
maintenance, n. (14c) 1. The continuation ofsomething,
such as a lawsuit. 2. The continuing possession ofsome
thing, such as property. 3. The assertion ofa position or
opinion; the act ofupholding a position in argument. 4.
The care and work put into property to keep it operating
and productive; general repair and upkeep. 5. Financial
support given by one person to another, uSU. paid as a
result ofa legal separation or divorce; esp. ALIMONY.
Maintenance may end after a specified time or upon
the death, cohabitation, or remarriage of the receiv
ing party. [Cases: Divorce ~208, 230; Husband and
Wife~282.]
maintenance in gross. (I914) A fixed amount ofmoney
to be paid upon divorce by one former spouse to the
other, in a lump sum or in installments. -Typically,
the total amount is unmodifiable regardless of any
change in either person's circumstances. [Cases:
Divorce
separate maintenance. (I7c) Money paid by one
married person to another for support if they are no
longer living together as husband and wife. -This
type of maintenance is often mandated by a court
order. An action for separate maintenance is not
maintainable after the marriage has been dissolved.
Also termed separate support. [Cases: Husband and
Wife~282.]
6. Improper assistance in prosecuting or defending
a lawsuit given to a litigant by someone who has no
bona fide interest in the case; meddling in someone
else's litigation. Cf. CHAMPERTY. [Cases: Champerty
and Maintenance ~1,4.]
maintenance and cure. iWaritime law. Compensation
prOVided to a sailor who becomes sick or injured while
a member ofa vessel'8 crew. _ The obligation is broader
than what would be covered under workers' compen
disabled student in classes with students who are not i sation, as it applies to illness or injury whether or not
1040 maintenance assessment
arising out of shipboard duties. See CURE (2). [Cases:
Seamen (;:=:;> 11.]
maintenance assessment. See ASSESSMENT.
maintenance bond. See BOND (2).
maintenance call. See margin call under CALL (2).
maintenance fee. 1. A periodic payment required to
maintain a privilege, such as a license. 2. A charge
for keeping an improvement in working condition or
a residential property in habitable condition. Also
termed maintenance assessment. 3. A fee charged for
reinvesting earnings and dividends in mutual funds.
4. Patents. The periodic charge a patentee must pay the
U.S. Patent and Trademark Office in order to keep the
patent in force. U.S. maintenance fees are due 31;2, 7,
and 111;2 years from the date the patent is issued. [Cases:
Patents (;:=:;> 103.]
maintenance in gross. See MAINTENANCE.
maintenance margin requirement. See MARGIN
REQUIREMENT.
maior (maY-<lr). See MAJOR.
maister (maY-5t<lr). Archaic. A master.
maitre (may-trd or mayt-dr), n. [French] French law. A
master, esp. of a vessel.
maius Latium. See LATIUM MAIUS.
majestas (md-jes-tas), n. [Latin "supreme power"] Roman
law. 1. The majesty, sovereign authority, or supreme
prerogative ofthe state or sovereign; the supreme power
ofthe people, esp. as represented by their highest repre
sentatives, the consuls, or the emperor. 2. The crime of
high treason. See crimen majestatis under CRIMEN.
"Majestas . ... From being an attribute of the princeps. the
word 'majesty' came to be an honorific title confined. at
first, to the Roman emperors of the West but later extended
to all kings. From the time of Henry II, it has been used in
England, the full form being 'Her Most Gracious Majesty',
The usual form is 'Her Majesty'." David M. Walker, The
Oxford Companion to Law 798 (1980).
major (may-jdr). [Latin] (17c) 1. Roman law. An older
person, esp. one older than 25 and hence offull capacity.
2. Roman law. An ascendant; an ancestor. 3. Hist. A
mayor. 4. ADULT. 5. In the U.S. Army, U.S. Air Force, or
U.S. Marine Corps, a commissioned officer who ranks
above a captain and below a lieutenant-colonel.
major action. Environmental law. An undertaking that
may have a Significant impact on the environment, trig
gering the need for an environmental assessment under
the National Environmental Policy Act and some state
laws. Cf. MAJOR-FEDERAL ACTION. [Cases: Environmen
tal Law (;:=:;>587.J
major-and-minor fault rule. See MAJOR-MINOR FAULT
RULE.
major annus (may-jdf an-ds). [Latin "the greater year"]
A leap year. made up of366 days.
majora regalia (m<l-jor-ee ri-gay-lee-<l). See regalia
majora under REGALIA.
major crime. See FELONY (1). major disaster. A catastrophe, such as a hurricane,
tornado, storm, flood, earthquake, drought, or fire,
so severe that it warrants disaster assistance from the
federal government. -When the President declares a
major disaster, the federal government supplements
the efforts and resources ofstates, local governments,
and relief organizations to alleviate the damage, loss,
hardship, and suffering caused by the catastrophe. 40
CPR 109. [Cases: United States (;::)82(5).]
major dispute. See DISPUTE.
majorennitati proximus (may-jdr-en-d-tay-tI prok-sd
mds). [Law Latin] Scots law. Near majority . Minors
who were near the age of majority had difficulty
arguing that a contracting party had taken advantage
oftheir age and inexperience. See IN CONFI:-IIO MAjORIS
AETATIS.
majores (md-jor-eez), n. [Latin "greater persons"] 1.
Roman law. Ancestors; forebears. 2. Hist. Greater
persons; persons of a higher status.
major federal action. Environmental law. An undertak
ing, either carried out by a federal agency or approved
by a federal agency. that may have a Significant impact
on the environment . Examples include constructing
an aqueduct or dam, constructing a highway through
wetlands, or adopting certain agency regulations.
Under the National Environmental Policy Act, a federal
agency that plans to take a major federal action that
may Significantly affect the environment is reqUired to
prepare and file an environmental-impact statement,
along with any public comments, with the Environ
mental Protection Agency. 40 CFR 1506.9, 1508.
[Cases: Environmental Law C;:;;;S87.]
major; minus inest (m<l-jor-I ml-ndS in-est). [Latin] Scots
law. The greater includes the less. -The phrase refers
to the principle that any conveyance of a primary right
to property includes any lesser rights to that property.
majority. (l6c) 1. The status of one who has attained the
age (usu. 18) at which one is entitled to full civic rights
and considered legally capable of handling one's own
affairs. See AGE OF MAJORITY. Cf. MINORITY (1). [Cases:
Infants 2. A number that is more than half ofa
total; a group of more than 50 percent <the candidate
received 50.4 percent ofthe votes barely a majority>.
|
a group of more than 50 percent <the candidate
received 50.4 percent ofthe votes barely a majority>.
A majority always refers to more than half of some
defined or assumed set. In parliamentary law, that set
may be all the members or some subset, such as all
members present or all members voting on a particular
question. A "majority" without further qualification
usu. means a simple majority. See simple majority. Cf.
PLURALITY; MINORITY (2); HALF PLUS mm.
absolute majority. A majority of all those who are
entitled to vote in a particular election, regardless of
how many voters actually cast ballots. See QUORUM.
[Cases; Elections 126(6),215.]
constitutional majority. See majority ofall the mem
bers.
extraordinary majority. See supermajority.
1041
majority ofall the members. A majority of all the
actual members, disregarding vacancies. -Also
termed constitutional majority; majority ofthe entire
membership; majority ofthe membership.
majority ofall the memberships. A majority ofall the
possible memberships, including vacancies. Also
termed majority ofthe fixed membership.
majority ofthe entire membership. See majority ofall
the members.
majority ofthefixed membership. See majority ofall
the memberships.
majority ofthe membership. See majority ofall the
members.
ordinary majority. See simple majority.
plural majority. See PLURALITY.
simple majority. A numerical majority of those
actually voting . Absent members, members who
are present but do not vote, blanks, and abstentions
are not counted. -Also termed ordinary majority.
[Cases: Elections C:;126(6),215.]
supermajority. A fixed proportion greater than half
(often two-thirds or a percentage greater than 50%),
required for a measure to pass . Such a majority is
needed for certain extraordinary actions, such as
ratifying a constitutional amendment or approving
a fundamental corporate change. -Also termed
extraordinary majority.
veto-proofmajority. A legislative majority large enough
that it can override an executive veto.
majority-consent procedure. Corporations. A statutory
provision allowing shareholders to avoid a sharehold
ers' meeting and to act instead by written consent of
the holders of a majority of shares. Delaware and a
few other states have enacted such procedures. [Cases:
Corporations ~191.]
. majority-minority district. See DISTRICT.
majority opinion. See OPINION (1).
majority report. See REPORT (1).
majority rule. (1848) 1. The principle that a majority of
a group has the power to make decisions that bind the
group; the principle that in the choice of alternatives,
the one preferred by the greater number is selected.
It is governance by the majority of those who actually
participate, regardless of the number entitled to par
ticipate. 2. The constitutional principle "that a majority
ofthe people ofa State ... elect a majority of that State's
legislators," Reynolds v. Sims, 377 U.S. 533, 583-84,
84 S.Ct. 1362, 1393 (1964), from which it follows that
each voter is entitled to a share of the franchise equal
to that ofeach other voter. See ONE-PERSON, ONE-VOTE
RULE. 3. Corporations. Ihe common-law principle that
a director or officer owes no fidUciary duty to a share
holder with respect to a stock transaction . This rule
has been restricted by both federal inSider-trading rules
and state-law doctrine. Cf. SPECIAL-BACTS RULE.
majority shareholder. See SHAREHOLDER. make-whole doctrine
majority verdict. See VERDICT.
majority vote. See MAJORITY.
majority voting. See VOTING.
major life activity. (1979) A basic activity that an average
person in the general population can perform with
little or no difficulty, such as seeing, hearing, sleeping,
eating, walking, traveling, or working. _ A person who
is substantially limited in a major life activity is pro
tected from discrimination under a variety ofdisability
laws, most significantly the Americans with Disabilities
Act and the Rehabilitation Act. 42 USCA 12102(2); 29
USCA 705(9)(B). See AMERICANS WITH DISABILITIES
ACT. [Cases: Civil Rights 1019(2),1218(2).]
major-minor fault rule. Maritime law. The principle
that if the fault ofone vessel in a collision is uncontra
dicted and sufficient to account for the accident, then
the other vessel is presumed not to have been at fault
and therefore not to have contributed to the accident.
The elimination ofthe divided-damages rule has made
this rule obsolete. -Also termed major-and-minor
fault rule. [Cases: Collision 19, 122.]
major offense. See OFFENSE (1).
major trend. See TREND.
majus jus (may-j<ls j;Js). [Law Latin "a greater right"] Hist.
A greater right . 'Ihis was a plea in a real action.
make, vb. (bef. 12c) 1. To cause (something) to exist <to
make a record>. 2. To enact (something) <to make law>.
3. To acquire (something) <to make money on execu
tion>. 4. To legally perform, as by executing, signing, or
delivering (a document) <to make a contract>.
make default. l. DEFAULT (1). 2. DEFAVLT (2).
make law. 1. To legislate. 2. To issue a legal precedent,
esp. a judicial decision, that establishes a new rule of
law on a particular subject. 3. Hist. To deny a plain~
tiff's charge under oath, in open court, with compur
gators .
make purpart (p;Jr-pahrt), vb. To divide and apportion
property formerly held in common. See PURPART.
maker. (l4c) 1. One who frames, promulgates, or ordains
(as in lawmaker). 2. A person who signs a promissory
note. See NOTE (1). Cf. COMAKER. [Cases: Bills and
Notes ~48, US.] 3. DRAWER.
accommodation maker. (1829) One who signs a note
as a surety. See ACCOMMODATION (2); accommodation
indorser under INDORSER. [Cases: Bills and Notes C=
49,122.]
prime maker. (1972) The person who is primarily liable
on a note or other negotiable instrument.
makeup gas. Oil t~gas. Natural gas that has been paid for
by the purchaser, usu. under a take-or-pay contract, but
that is to be delivered in the years following payment.
See take-or-pay contract under CONTRACT. [Cases: Gas
C=13(1).]
make-whole doctrine. Insurance. 'Ihe principle that,
unless the insurance policy provides otherwise, an
insurer will not receive any of the proceeds from the
1042 mal
settlement ofa claim, except to the extent that the set
tlement funds exceed the amount necessary to fully
compensate the insured for the loss suffered. [Cases:
Insurance C::;:)3514(2).]
mal (mal), adj. [Law French "bad; wrong; against"] Bad;
wrong. In Law French, mal was a separable word,
equivalent to the Latin male ("badly"). In its modern
uses, mal-is a prefix in terms such as maladministra
tion and malpractice.
mala antiqua (mal-<:l an-tI-kw<:l). Old crimes; offenses
that date back to antiquity.
mala demonstratio (mal-<:l dem-;m-stray-shee-oh).
[Latin] Hist. Erroneous description.
maladministration. Poor management or regulation by
a public officer; specif., an official's abuse of power.
Also termed misadministration; breach oftrust.
mala fides (mal-<:l fI-deez), n. See BAD FAITH (1).
mala in se (mal-d in say or see). See MALUM IN SE.
malandrinus (mal-;m-drI-n<:lS), n. [Law Latin "brigand"]
Hist. A thief; a pirate.
malapportionment, n. (1959) The improper or uncon
stitutional apportionment ofa legislative district. See
APPORTIONMENT (3); GERRYMANDERING; LEGISLATIVE
DISTRICTING. [Cases: Elections 12(6).] -malap
portion, vb.
mala praxis (mal-d prak-sis). [Law Latin] Hist. Malprac
tice; unskillful treatment, esp. by a doctor.
"Injuries. affecting a man's health. are where by any
unwholesome practices of another a man sustains any
apparent damage in his vigor or constitution. As by selling
him bad provisions or wine ... or by the neglect or unskil
ful management of his phYSician, surgeon, or apothecary.
For it hath been solemnly resolved ... that mala praxis
is a great misdemeanor and offence at common law.
whether it be for curiosity and experiment. or by neglect;
because it breaks the trust which the party had placed in
his physician, and tends to the patient's destruction." 3
William Blackstone, Commentaries on the Laws ofEngland
122 (1768).
mala prohibita (mal-d proh-hib-i-td). See MALUM PRO
HIBITUM.
malconduct in office. See official misconduct under MIS
CONDUCT.
male creditus (mal-ee kred-d-tas). [Law Latin] Hist. (Of
a person) in bad repute; untrusted.
malediction (mal-d-dik-shdn). Rist. A curse placed
on property donated to a church to protect it against
anyone attempting to violate the church's rights.
malefaction (mal-<:l-fak-shan), n. [Latin malefacere "to do
evil"] (lSc) Archaic. An evil deed; a crime or offense.
Also termed maleficium. malefactory, adj.
malefactor (mal-<:l-fak-t<:lr), n. [Latin] (ISc) A wrongdoer;
a criminal.
maleficium (mal-d-fish-ee-am), n. [Latin "a misdeed"]
Roman law. A delict. See MALEFACTION.
maleson. See MALISON. malesworn (mayl-sworn), p.pl. Forsworn. -Also spelled
malsworn.
malfeasance (mal-fee-z;mts), n. (17c) A wrongful or
unlawful act; esp. wrongdoing or misconduct by a
public official; MISFEASANCE IN PUBLIC OFFICE. Cf.
MISFEASANCE; NONFEASANCE. [Cases: Officers and
Public Employees 121.J -malfeasant (mal-fee
zant), adj. -malfeasor (mal-fee-z;,r), n.
malfunction theory. (1979) Products-liability law. A
principle permitting a products-liability plaintiff to
prove that a product was defective by proving that the
product malfunctioned, instead of requiring the plain
tiff to prove a specific defect . A plaintiff relying on
the malfunction theory usu. must also prove that the
product was not misused, and must disprove all rea
sonable explanations for the occurrence other than a
defect. [Cases: Products LiabilityC::>358.]
mal gree (mal gree). [Law French "against the will"] Hist.
Against the will; without consent.
malice, n. (14c) 1. The intent, without justification or
excuse, to commit a wrongful act. 2. Reckless disre
gard of the law or of a person's legal rights. 3. III will;
wickedness of heart. This sense is most typical in
nonlegal contexts.
"Malice means in law wrongful intention. It includes any
intent which the law deems wrongful, and which therefore
serves as a ground of liability. Any act done with such an
intent is, in the language of the law, malicious, and this
legal usage has etymology in its favour. The Latin malitia
means badness, physical or moral -Wickedness in disposi
tion or in conduct -not specifically or exclusively illwill
or malevolence; hence the malice of English law, including
all forms of evil purpose, deSign, intent, or motive. [Butl
intent is of two kinds, being either immediate or ulterior.
the ulterior intent being commonly distinguished as the
motive. The term malice is applied in law to both these
forms of intent, and the result is a somewhat puzzling
ambiguity which requires careful notice. When we say that
an act is done maliCiously. we mean one of two distinct
things. We mean either that it is done intentionally, or that
it is done with some wrongful motive." John Salmond, juris,
prudence 384 (GlanVille L. Williams ed., 10th ed. 1947),
"[Mlalice in the legal sense imports (I) the absence of all
elements ofjustification, excuse or recognized mitigation,
and (2) the presence of either (a) an actual intent to cause
the particular harm which is produced or harm of the same
general nature. or (b) the wanton and wilful dOing of an
act with awareness of a plain and strong likelihood that
such harm may result .... The Model Penal Code does not
use 'malice' because those who formulated the Code had
a blind prejudice against the word. This is very regret
table because it represents a useful concept despite some
unfortunate language employed at times in the effort to
express it." Rollin M. Perkins & Ronald N. Boyce, Criminal
Law 860 (3d ed. 1982).
actual malice. (18c) 1. The deliberate intent to commit
an injury, as evidenced by external circumstances.
Also termed express malice; malice infact. Cf. implied
malice. 2. Defamation. Knowledge (by the person who
utters or publishes a defamatory statement) that a
statement is false, or reckless disregard about whether
the statement is true. To recover for defamation, |
statement) that a
statement is false, or reckless disregard about whether
the statement is true. To recover for defamation,
a plaintiff who is a public official or public figure
must overcome the defendant's qualified privilege by
proving the defendant's actual malice. And for certain
other types of claims, a plaintiff must prove actual
malice to recover presumed or punitive damages.
Also termed New York Times malice: constitutional
malice; common-law malice. [Cases: Libel and Slander
common-law malice. See actual malice (2).
constructive malice. See implied malice.
express malice. (l7c) 1. Criminal law. The intent to kill
or seriously injure arising from a deliberate, rational
mind. [Cases: Assault and Battery (;:::J49: Homicide
(;:::JS29.] 2. See actual malice (1). 3. Defamation. The
bad-faith publication ofdefamatory material. [Cases:
Libel and Slander (;:::J4, 51.]
general malice. (17c) Malice that is necessary for
any criminal conduct; malice that is not directed
at a specific person. Cf. particular malice. [Cases:
Criminal Law (;:::J20.]
implied malice. (17c) Malice inferred from a person's
conduct. -Also termed constructive malice; legal
malice; malice in law. Cf. actual malice (1).
malice infact. See actual malice (1).
particular malice. (l6c) Malice that is directed at a par
ticular person. -Also termed special malice.
transferred malice. (1961) Malice directed to one
person or object but instead harming another in the
way intended for the first. [Cases: Assault and Battery
C='49; Homicide (;:::J555.]
"[I]f A shoots at B intending to kill him, but the shot actually
kills C, this is held to be murder of C. So also jf A throws
a stone at one window and breaks another, it is held to
be malicious damage to the window actually broken. This
doctrine, which is known as the doctrine of transferred
malice, applies only where the harm intended and the
harm done are of the same kind. If A throws a stone at
a human being and unintentionally breaks a window, he
cannot be convicted of malicious damage to the window."
John Salmond, jurisprudence 382 (Glanville l. Williams ed.,
10th ed. 1947).
universal malice. (17c) The state of mind of a person
who determines to take a life on slight provocation,
without knowing or caring who may be the victim.
malice aforethought. (l7c) The requisite mental state
for common-law murder, encompassing anyone of
the following: (1) the intent to kill, (2) the intent to
inflict grievous bodily harm, (3) extremely reckless
indifference to the value of human life (the so-called
"abandoned and malignant heart"), or (4) the intent to
commit a dangerous felony (which leads to culpabil
ity under the felony-murder rule). -Also termed pre
meditated malice; preconceived malice; malice prepense;
malitia praecogitata. [Cases: Homicide (;:::J529, 541,
546.]
"Malice aforethought is the term which came into use
during medieval times to indicate the mental element nec
essary in the felony of murder. It has been the subject of
voluminous jurisprudential enquiry . ." j.W. Cecil Turner,
Kenny's Outlines ofCriminal Law 27 (16th ed. 1952).
"Every intentional killing is with malice aforethought
unless under circumstances sufficient to constitute (1) justification, (2) excuse, or (3) mitigation." Rollin M. Perkins
& Ronald N. Boyce, Criminal Law 58 (3d ed. 1982).
malice exception. (1977) A limitation on a public offi
cial's qualified immunity, by which the official can
face civil liability for willfully exercising discretion in
a way that violates a known or well-established right.
See qualified immunity under IMMUNITY (1). [Cases:
Civil Rights (;:::J1376.]
malice in fact. See actual malice (1) under MALICE.
malice in law. See implied malice under MALICE.
malice prepense. See MALICE AFORETHOUGHT.
malicious, adj. (13c) l. Substantially certain to cause
injury. 2. Without just cause or excuse.
malicious abandonment. See ABANDONMENT (3).
malicious abuse of legal process. See ABUSE OF
PROCESS.
malicious abuse of process. See ABUSE OF PROCESS.
malicious accusation. See ACCUSATION.
malicious act. (17c) An intentional, wrongful act done
willfully or intentionally against another without legal
justification or excuse.
malicious arrest. See ARREST.
malicious assault with a deadly weapon. See ASSAULT.
malicious bankruptcy. See BANKRUPTCY.
malicious damage. See MALICIOUS MISCHIEF.
malicious defeuse. See DEFENSE (2).
malicious execution. See EXECUTION.
malicious injury. See INJURY.
malicious institution of civil proceedings. See MALI
CIOUS PROSECUTION.
malicious killing. (17c) An intentional killing without
legal jUstification or excuse. -Also termed killing with
malice. Cf. ACCIDENTAL KILLING. [Cases: Homicide (;:::J
529,546.]
maliciously damaging the property of another. See
MALICIOUS MISCHIEF.
malicious mischief. (18c) The common-law misdemeanor
of intentionally destroying or damaging another's
property. Although modern statutes predominantly
make this offense a misdemeanor, a few make it a felony
(depending on the nature ofthe property or its value).
See Model Penal Code 220.3. -Also termed mali
cious mischiefand trespass; malicious injury; malicious
trespass; malicious damage; maliciously damaging the
property ofanother; (in the Model Penal Code) criminal
mischief [Cases: Malicious Mischief (;:::J 1.]
"Such phrases as 'malicious mischief and trespass,' 'mali
cious injury,' and 'maliciously damaging the property of
another,' are merely additional labels used at times to
indicate the same offense. It was a misdemeanor according
to the common law of England, although some confUSion
has resulted from Blackstone's statement that it was 'only
a trespass at common law.' Before the word 'misdemeanor'
became well established the old writers tended to use the
word 'trespass' to indicate an offense below the grade of
felony. And it was used at times by Blackstone for this
purpose, as in the phrase 'treason, felony, or trespass.'"
Rollin M. Perkins & Ronald N. Boyce, Criminal Law405 (3d
ed.1982).
malicious motive. See MOTIVE.
malicious prosecution. (I7c) 1. The institution of a
criminal or civil proceeding for an improper purpose
and without probable cause . The tort requires proof
of four elements: (1) the initiation or continuation of
a lawsuit; (2) lack of probable cause for the lawsuit's
initiation; (3) malice; and (4) favorable termination
of the original lawsuit. Restatement (Second) of Torts
674-81B (1977). 2. The tort claim resulting from the
institution of such a proceeding . Once a wrongful
prosecution has ended in the defendant's favor, he or
she may sue for tort damages. -Also termed (in the
context of civil proceedings) malicious use ofprocess;
(archaically) malicious institution ofcivil proceedings.
Cf. ABUSE OF PROCESS; VEXATIOUS SUIT; MALICIOUS
DEFENSE. [Cases: Malicious Prosecution (::=>0.5.]
"The distinction between an action for malicious prosecu
tion and an action for abuse of process is that a malicious
prosecution consists in maliciously causing process to be
issued, whereas an abuse of process is the employment
of legal process for some purpose other than that which
it was intended by the law to effect the improper use
of a regularly issued process. For instance, the initiation
of vexatious civil proceedings known to be groundless
is not abuse of process, but is governed by substantially
the same rules as the malicious prosecution of criminal
proceedings." 52 Am. Jur. 2d Malicious Prosecution 2, at
187 (1970).
malicious technology. Any electronic or mechanical
means, esp. software, used to monitor or gain access
to another's computer system without authorization
for the purpose of impairing or disabling the system.
Examples ofmalicious technology are Trojan horses,
time-outs, keystroke logging, and data-scrambling
devices. -Also termed malware.
malicious trespass. See MALICIOUS MISCHIEF.
malicious use of process. See MALICIOUS PROSECU
TION.
malignare (mal-dg-uair-ee), vb. [Latin] Hist. 1. To
malign; to slander. 2. To maim.
malinger, vb. (1820) To feign illness or disability, esp. in
an attempt to avoid an obligation or to continue receiv
ing disability benefits.
malison (mal-d-z;m or -san). [fro Latin malum "evil"
+ sonus "a sound"J Hist. A curse_ -Also spelled
maleson.
malitia (mJ-lish-ee-J). [Latin "malice"] Hist. An actual
evil design; express malice . Malitia originally signi
fied general wrongdoing, and did not describe a wrong
doer's state ofmind; malitia praecogitata, for example,
indicated only the seriousness ofthe offense, though it
was eventually rendered malice aforethought.
malitia capitalis (md-lish-ee-d kap-i-tay-lis). [LatinJ
Hist. Deadly malice.
malitia excogitata (eks-koj-d-tay-tJ). See malitia
praecogitata. malitia praecogitata (pree-koj-a-tay-td). See MALICE
AFORETHOUGHT. -Also termed malitia excogitata.
"[T]he word felony is often coupled with what will in the
future be another troublesome term of art, to wit, malice
aforethought or malice prepense (malitia excogitata,
praecogitata) . ... When it first came into use, it hardly
signified a state of mind; some qualifying adjective such
as praemeditata or excogitata was needed if much note
was to be taken of intention or of any other psychical fact.
When we first meet with malice prepense it seems to mean
little more than intentional wrong-doing; but the somewhat
weighty adjectives which are coupled with malitia in its
commonest context -adjectives such as excogirata
are, if we mistake not, traces of the time when forsteal,
guetapens, waylaying, the setting of ambush, was (what
few crimes were) a speCially reserved plea of the crown to
be emended, if indeed it was emendable, by a heavy wlte."
2 Frederick Pollock & Frederic W. Maitland, The History of
English Law Before the Time of Edward I 468-69 (2d ed.
1899).
malleable, adj. (14c) 1. (Of an object) capable of exten
sion by hammering <the metal was malleable>. 2. (Of a
person) capable ofbeing influenced <the young student
was malleable>.
Malleus Maleficarum (mal-ee-;}s mal-d-fi-kair-dm).
[Latin "Hammer of Witches"] Hist. An encyclope
dic work of demonology and witchcraft, prepared in
1486 by two Dominican friars (Heinrich Kraemer and
Johann Sprenger) as part of their efforts to eradicate
witchcraft in Germany. The Malleus Maleficarum
was based largely on folk beliefs, but it was relied on
for several centuries as an authoritative source on how
to detect, extract confessions from, and prosecute
witches.
Mallory rule. See MCNABB-MALLORY RULE.
mallum (mal-am), n. [Law Latin] Hist. 1. A superior
court among the Salian Franks, with criminal juris
diction; a high court that handles important business.
2. A public national assembly. -Also termed mallus.
mallus. See MALLUM.
malo animo (mal-oh an-a-moh), adv. [LatinJ With evil
intent; with malice.
malo grato (mal-oh gray-toh), adv. [l.atin] Unwill
ingly.
Maloney Act. A 1938 amendment to the Securities
Exchange Act of 1934, providing for broker registra
tion in over-the-counter markets.
malpractice (mal-prak-tis). (l7c) An instance ofnegli
gence or incompetence on the part ofa professionaL.
To succeed in a malpractice claim, a plaintiff must also
prove proximate cause and damages. Also termed
professional negligence. [Cases: Negligence (::=>321.J
legal malpractice. A lawyer's failure to render profes
sional services with the skill, prudence, and diligence
that an ordinary and reasonable lawyer would use
under similar circumstances. -Also termed attorney
malpractice. [Cases: Attorney and Client G'=;107.]
medical malpractice. A doctor's failure to exercise the
degree ofcare and skill that a physician or surgeon of
the same medical specialty would use under similar
circumstances. Often shortened to med. mal.
[Cases: Health P600-835.J
malpractice insurance. See INSURANCE.
malsworn. See MALESWORN.
maltreatment. (l8c) Bad treatment ( |
SURANCE.
malsworn. See MALESWORN.
maltreatment. (l8c) Bad treatment (esp. improper treat
ment by a surgeon) resulting from ignorance, neglect,
or willfulness. See MALPRACTICE.
malum (mal-dm also may-Idm), n. [Latin] Something
bad or evil. PI. mala.
malum in se (mal-dm in sayar see), n. [Latin "evil
in itself"] (17c) A crime or an act that is inherently
immoral, such as murder. arson, or rape. Also
termed malum per se. Cf. MALUM PROHIBITUM. Pl.
mala in se. -malum in se, adj.
"The basis for the distinction between mala in se and mala
prohibita, between what one might call a crime and an
offence -or between what one might call a felony and a
misdemeanour, if one could modernize those terms so that
the latter was given its natural meaning is that crime
means to the ordinary man something that is sinful or
immoral, and an offence at worst a piece of misbehaviour."
Patrick Devlin. The Enforcement ofMorals 33 (1968).
"The distinction between offenses mala in se and offenses
mala prohibita was recognized at least as early as the fif
teenth century. It has been criticized repeatedly. About a
century and a half ago the distinction was said to be one
'not founded upon any sound principle' and which had
'long since been exploded.' [Quoting Bensley v. Bignold, 5
g, & A. 335, 341, 106 Eng. Rep. 1214, 1216 (1822); other cita
tions omitted.] The Supreme Court, however, has shown
that it is just as firmly entrenched today as it was in 1495."
Rollin M, Perkins & Ronald N, Boyce, Criminal Law880 (3d
ed.1982).
malum prohibitum (mal-am proh-hib-i-tam), n. [Latin
"prohibited evil"] (I8c) An act that is a crime merely
because it is prohibited by statute, although the act itself
is not necessarily immoraL -Misdemeanors such as
jaywalking and running a stoplight are mala prohibita,
as are many regulatory violations. Cf. MALUM IN SE. Pl.
mala prohibita. malum prohibitum, adj.
"Much of the criminal law that is regulatory in character
the part of it that deals with malum prohibitum rather than
malum in se is based upon the .. , principle ... that the
choice of the individual must give way to the convenience
of the many." Patrick Devlin, The Enforcement of Morals
16 (1968).
"As customarily used these phrases are mutually exclusive,
An offense malum prohibitum is not a wrong which is pro
hibited, but something which is wrong only in the sense
that it is against the law. This is emphasized at times by
such phrases as 'malum prohibitum only' or 'but malum
prohibitum,' although it is understood without any such
qualification. A failure to understand this usage of the
terms has led some to assume that all statutory additions
to the common law of crimes are mala prohibita. One writer
emphasized his confusion by speaking of embezzlement
as malum prohibitum. This assumption is utterly without
foundation, An act may be malum in se although no pun
ishment is provided by law, If this defect is corrected by
appropriate legislation, what previously was malum in se
does not cease to be so by reason of having been defined
and made punishable by law." Rollin M, Perkins & Ronald
N. Boyce, Criminal Law 884-85 (3d ed. 1982).
malum regimen (mal-<lm rej-<l-men). [Law Latin]
Scots law. Bad medical treatment. - A defendant in a homicide case may assert as a defense that the decedent
actually died as a result of bad medical treatment, not
the defendant's actions.
malus animus (mal-as an-a-mas). [Latin] Scots law, Bad
intention. -This intention, coupled with a prohibited
act carrying it out, resulted in a crime. See DOLE; MENS
REA.
malveilles (mal-vay also mal-vayls), n. [French "misde
meanors"] Hisl. 1. III will. 2. Crimes; misdemeanors;
malicious acts,
malveis procurors (mal-vay pra-kyoor-arz). [Law French
"defective procurers") Hist. Persons who pack juries, as
by nomination or other practice.
malversation (mal-var-say-shdn), n. [French "ill
behavior"] Official corruption; misbehavior by an
official in the exercise ofthe duties ofthe office. [Cases:
Officers and Public Employees C--;) 121.) -malverse,
vb.
malware. (1990) Slang. See MALICIOUS TECHNOLOGY.
man. (bef. 12c) 1. An adult male. 2. Humankind. Also
termed mankind. 3. A human being. 4. Hist. A vassal;
a feudal tenant.
manacle (man-a-kdl). (14c) A shackle; a handcuff.
managed care. (1982) A system of comprehensive health
care provided by a health-maintenance organization,
a preferred-provider organization, or a similar group.
[Cases: Health C::=>294; Insurance <:--:>2501.]
managed-care organization. An association of profes
sional healthcare providers that offers healthcare-ser
vice plans to subscribers. Cf. HEALTH-MAINTENANCE
ORGANIZATION; PREFERRED-PROVIDER ORGANIZATION.
[Cases: Health P294; Insurance P2501.]
management. (16c) The people in an organization who
are vested with a certain amount of discretion and
independent judgment in managing its affairs. [Cases:
Corporations (;:::=>296.]
middle management. People who exercise some discre
tion and independent judgment in carrying out top
management's directives.
top management. The highest level of a company's
management, at which major policy decisions and
long-term business plans are made. -Also termed
upper management.
management buyout. See BUYOUT.
management company. See COMPANY.
Management Directorate. The division of the Depart
ment of Homeland Security responsible for handling
the Department's financial and personnel affairs.
management fee. See FEE (1).
manager. (16c) 1. A person who administers or super
vises the affairs of a business, office, or other organi
zation.
general manager. A manager who has overall control
ofa business, office, or other organization, including
authority over other managers. - A general manager
is usu. equivalent to a president or chief executive
officer ofa corporation.
2. A legislator appointed to a conference committee
charged with adjusting differences in a bill passed
by both houses in different versions. -Also termed
conferee; manager ofa conference. [Cases: States
34.] 3. Parliamentary law. A member who displays the
evidence against another member who is charged with
misconduct and faces possible disciplinary action. 4. A
representative appointed by the House of Representa
tives to prosecute an impeachment before the Senate.
[Cases: United States ~35.] 5. A member of a board
of managers; DIRECTOR (2). See BOARD OF DIRECTORS.
6. A court-of-equity appointee responsible for carrying
on a business for the benefit of creditors or other ben
eficiaries.
manager ofa conference. See MANAGER (2).
managing agent. See AGENT (2).
managing conservator. See CONSERVATOR.
managing conservatorship. See CUSTODY (2).
managium (m"-nay-jee-,,m), n. [Law Latin, fro Law
French manage "a dwelling"] Hist. A dwelling; a
mansion house. -Also termed mensa (men-s,,).
Manahan-type carried interest. Oil & gas. A transaction
in which the owner of a lease assigns all the working
interest to someone else -who takes on specified costs
ofdrilling and development and the assignor retains
a reversionary interest in part of the working interest,
which reverts to the assignor once the assignee has
recovered the specified costs during the payout period.
Manahan Oil Co. v. Commissioner, 8 T.e. 1159 (1947).
[Cases: Mines and Minerals
manbote. See BOTE (2).
manceps (man-seps), n. [Latin "an agent"] I. Roman
law. A purchaser of something at a state auction, esp.
a right or advantage, as in the right to farm taxes. See
CONDUCTOR (2).
"Manceps. One who at a public auction, conducted by a
magistrate, through the highest bid obtained the right to
collect taxes (a tax farmer) or custom duties, the lease
of public land (ager publicus) or other advantages (a
monopoly). -In postal organization mancepswas a post
station master." Adolf Berger, EncyclopediC Dictionary of
Roman Law 573 (1953).
2. A person who undertakes to perform a task and gives
security for the performance. 3. Roman law. A state
postmaster.
manehe-present (mahnsh-pray-zon). [Law French "a
present from the donor's own hand"] A bribe.
mancipable (man-si-pd-b<'ll), adj. Capable of mancipa
tion.
mancipant (man-si-p<'Int), n. One who transfers property
by mancipation.
mancipare (man-s,}-pair-ee), vb. [fro Latin manus "hand"
+ capere "to take"] Roman law. 1. To alienate (a thing)
through mancipation. 2. To sell (esp. a person) fictitiouslyas part ofthe emancipation process. See MAN
CIPATION.
mancipatio (man-s,}-pay-shee-oh), n. [Latin] See MAN
CIPATION.
mancipation (man-si-pay-sh"n), n. [fr. Latin mancipa
tio "hand-grasp"]!. Roman law. A legal formality for
transferring property by either an actual or a simulated
purchase; a formal conveyance in the guise ofa sale .
The formality required the presence ofthe thing being
conveyed (res mancipi), and offive adult male citizens
acting as witnesses. Another person (the libripens)
held the bronze scales with which the purchase price
had been weighed out. The buyer made an assertion
of ownership, struck the scales with a piece of bronze
or copper, then gave the metal piece to the seller as
a symbolic price. In Roman dassicallaw, either this
procedure or cessio in jure was necessary to pass legal
title. Ihis form ofsale was abolished by Justinian. 2. A
similar form used for making a will, adoption, eman
cipation of children, etc. Also termed mancipatio.
See RES MANCIPI. Cf. EMANCIPATION. mancipate,
vb. mancipatory (man-si-p,,-tohr-ee), adj.
"Mancipatio is the solemn sale per aes et libram. In the
presence of five witnesses (cives Romani puberes) a skilled
weighmaster (iibripens) weighs out to the vendor a certain
amount of uncoined copper (aes, raudus, raudusculum)
which is the purchase-money, and the purchaser, with
solemn words, takes possession with his hand hence
the description of the act as 'hand-grasp' of the thing
purchased as being his property." Rudolph Sohm, The Insti
tutes: A Textbook ofthe History and System ofRoman Private
Law 48 (james Crawford Ledlie trans., 3d ed. 1907).
mancipatory will. See WILL.
mancipi res (man-s,,-pI reez). See RES MANCIPI.
mancipium (man-sip-ee-<'Im), n. [Latin "a slave"] Roman
law. 1. A slave, esp. by virtue of being captured by an
enemy in war. 2. A temporary quasi-servile status, nec
essarily occurring in an emancipation, and also when
a master or father noxally surrendered a slave or son to
an injured party to answer for an offense committed by
the slave or son against that party. See EMANCIPATION;
NOXAL ACTION (1).
"But if the patria potestas could be created, it could also be
terminated, by an artificial process .... The father could
not by a simple act of his own will release the son from his
control. For this purpose he must sell him out of his own
hands into that state of mancipium or qualified slavery of
which we have spoken. Even then the father's power was
not destroyed: it was suspended during the existence of
the mancipium; but if the mancipium ceased, if the son
was set free by the person who held him in that condition,
the father's right revived .... It was not until he had sold
him three times over, that he used up his right of control
beyond the poss! bility of a revival. This, then, was the form
by which the son was liberated from the patria potestas."
James Hadley, Introduction to Roman Law 126-27 (1881).
3. MANCIPATION (1).
M & A. abbr. Mergers and acquisitions. See MERGER.
mandamus (man-day-m"s), n. [Latin "we command"]
(16c) A writ issued by a court to compel performance
of a particular act by a lower court or a governmental
officer or body, usu. to correct a prior action or failure
to act. Also termed writ ofmandamus; mandate;
(in BrE) order. [Cases: Mandamus 1.J Pl. manda
muses. -mandamus, vb.
alternative mandamus. A writ issued upon the first
application for relief, commanding the defendant
either to perform the act demanded or to appear
before the court at a specified time to show cause for
not performing it. [Cases: Mandamus (;:::::> 158.]
peremptory mandamus. An absolute and unqualified
command to the defendant to do the act in question.
It is issued when the defendant defaults |
us. An absolute and unqualified
command to the defendant to do the act in question.
It is issued when the defendant defaults on, or fails
to show sufficient cause in answer to, an alternative
mandamus. [Cases: Mandamus C:;)179.]
mandans (man-danz), n. [Latin] Roman law. The prin
cipal for whom a mandated person undertakes to
perform a gratuitous service. See MANDATOR (2).
mandant (man-d;mt), n. [French) French & Scots law.
The principal in a contract ofmandate, such as a bailor
in a bailment. See MANDATOR.
mandatary (man-d;:l-ter-ee), n. (i5c) 1. A person to
whom a mandate is given. See MANDATE (5). 2. An
agent, esp. one who acts gratuitously but is entitled to be
indemnified for expenses incurred in carrying out the
mandate. Also termed (in Roman law) mandatarius.
3. Civil law. The person who is employed to a mandator
in a gratuitous agency. -Also termed mandatee; man
datarius. See MANDATE (5). mandatary, adj.
mandate, n. (16c) 1. An order from an appellate court
directing a lower court to take a specified action.
Also termed (in BrE) order. See MANDAMUS. [Cases:
Appeal and Error (;:::::> 1186.1; Federal Courts
949.1.] 2. A judicial command directed to an officer
of the court to enforce a court order. 3. In politics, the
electorate's overwhelming show of approval for a given
political candidate or platform. 4. Roman & civil law.
A written command given by a principal to an agent;
specif., a commission or contract by which one person
(the mandator) requests someone (the mandatary) to
perform some service gratuitously, the commission
becoming effective when the mandatary agrees. La.
Civ. Code art. 2989 . In this type of contract, no lia~
bility is created until the service requested has begun.
The mandatary is bound to use reasonable care in per
formance, while the mandator is bound to indemnify
against loss incurred in performing the service.
Also termed mandatum. 5. Louisiana law. A contract
by which one person, the principal, confers authority
on another person, the mandatary, to transact one or
more affairs for the principal. La. Civ. Code arts. 2989
et seq . The contract of mandate may be either onerous
or gratuitous. It is gratuitous ifthe parties do not state
otherwise. 6. Hist. Int'llaw. An authority given by the
League ofNations to certain governments to take over
the administration and development of deSignated ter~
ritories. Cf. TRUSTEESHIP (2). mandate, vb.
mandatee. See MANDATARY.
mandate rule. (1958) The doctrine that, after an appel
late court has remanded a case to a lower court, the lower court must follow the decision that the appel
late court has made in the case, unless new evidence
or an intervening change in the law dictates a different
result. [Cases: Appeal and Error C::o 1195(1); Federal
Courts (;:::::>950.]
mandator (man-day-tdr or man-day-t;:lr). (17c) 1. A
person who delegates the performance of a mandate to
another. 2. Civil law. The person who employs another
(called a mandatary or mandatarius) in a gratuitous
agency. See MANDATE (5). -Also termed mandant.
3. BAILOR (1).
mandatory, adj. (I5c) Of, relating to, or constituting a
command; required; preemptory.
HA provision in a statute is said to be mandatory when
disobedience to it, or want of exact compliance with it,
will make the act done under the statute absolutely void."
Henry Campbell Black, Handbook on the Construction and
Interpretation of the Laws 334 (1896).
mandatory commitment. See COMMITMENT.
mandatory injunction. See INJUNCTION.
mandatory instruction. See JURY INSTRUCTION.
mandatory joinder. See compulsory joinder under
JOINDER.
mandatory penalty. See mandatory sentence under
SENTENCE.
mandatory power. See POWER (5).
mandatory presumption. See conclusive presumption
under PRESUMPTION.
mandatory punishment. See mandatory sentence under
SENTENCE.
mandatory rule. See KGLE (1).
i mandatory sentence. See SENTENCE.;
' mandatory sentencing. See SENTENCING.
mandatory statute. See STATUTE.
I mandatory subject ofbargaining. Labor law. A topic
that is required by the National Labor Relations Act
to be discussed in good faith by the parties during
labor negotiations; an essential employment matter,
including wages, hours, and other terms and condi
tions of employment, about which management and the
union are required to negotiate in good faith, and that
can lawfully form the basis of a collective-bargaining
impasse. 29 USCA 158(d). -Often shortened to man
datory subject. Cf. PERMISSIVE SUBJECT OF BARGAIN
ING. [Cases: Labor and Employment 1125.J
mandatory trust. See TRUST.
mandatory waiver. The mandatory transfer, without
judicial discretion, of a case from juvenile court to
criminal court once the prosecutor has charged a
juvenile with one of certain statutorily enumerated
serious crimes. See TRANSFER STATUTE. C STATUTORY
EXCLUSIOK. [Cases: Infants (;:::::>68.7.]
mandatum (man-day-t~m). Roman & civil law. A
bailment in which the bailee will, without recompense,
perform some service relating to the goods; MANDATE
(4). This type of bailment is for the sole benefit of
the bailor.
mandavi ballivo (man-day-vI ba-b-voh). [Law Latin "I
have commanded the bailiff"] Hist. A sheriff's return
stating that the sheriff ordered a bailiff to execute a
writ.
man-endangering state of mind. See PERSON-ENDAN
GERING STATE OF MIND.
manerium (ma-neer-ee-am), n. [Law Latin, fro Latin
manere "to remain"] Hist. A manor.
'The term manerium seems to have come in with the
Conqueror, though other derivatives from the Latin verb
manere, in particular mansa, mansio, mansiuncula had
been freely employed by the scribes of the land-books.
But these had as a rule been used as representatives ofthe
English hide, and just for this reason they were incapable of
expressing the notion that the Normans desired to express
by the word manerium. In its origin that word is but one
more name for a house. Throughout the Exeter Domesday
the word mansio is used instead of the manerium of the
Exchequer record, and even in the Exchequer record we
may find these two terms used interchangeably ...."
Frederic W, Maitland, Domesday Book and Beyond 108-09
(1921),
mangonare (mang-ga-nair-ee), vb. [fro Latin mango "a
dealer"] To buy in a market; to deal.
manhood. (Be) 1. A male person's majority. 2. Hist.
A ceremony ofa vassal paying homage to the vassal's
lord. -Also termed homagium.
"Besides an oath of fealty, or profession of faith to the
lord, which was the parent of our oath of allegiance, the
vassal or tenant upon investiture did usually homage to his
lord; openly and humbly kneeling, being ungirt, uncovered,
and holding up his hands both together between those of
the lord, who sate before him; and there professing that
'he did become his man, from that day forth, of life and
limb and earthly honour:' and then he received a kiss from
his lord, Which ceremony was denominated homagium,
or manhood, by the feudists." 2 William Blackstone, Com
mentaries on the Laws of England 53 (1766).
mania a potu. See DELIRIUM TREMENS.
mania transitoria. Hist. Insanity ofbrief duration, expe
rienced while committing a criminal act. In a mem
orandum opinion, the Supreme Court used the term
to mean emotional insanity. See Mutual Life Ins. CO,
V. Terry, 82 U.S. 580, 583-84 (I872). But other courts
have applied the literal meaning (temporary insanity).
See, e.g., Rush v. Megee, 36 Ind. 69 (I871). Cf. emotional
insanity and temporary insanity under INSANITY.
manifest, n. (16c) A document listing the cargo or pas
sengers carried on a ship, airplane, or other vehicle;
esp., a shipping or warehousing document containing
a list ofthe contents, value, origin, carrier, and destina
tion ofthe goods. Cf. CONTENT.
manifestation ofintention. (1826) Wills & estates. The
external expression ofthe testator's intention, as distin
guished from an undisclosed intention. -Also termed
manifestation ofintent.
manifestation theory. Insurance. The doctrine that
coverage for an injury or disease falls to the policy
in effect when the symptoms of the covered injury or
disease first appear. Cf. EXPOSURE THEORY; ACTUALINJURY TRIGGER; TRIPLE TRIGGER. [Cases: Insurance
(;:::>2265.]
"Some injuries do not manifest themselves until a period
of time has elapsed between the occurrence of the event
that produces the harm and the time when it becomes
apparent. Particularly when these claims result from what
often were not recognized as dangerous products or
chemicals when the exposure occurred, such as asbestos
or dioxin, the consequences are referred to as 'delayed
manifestation' injuries .. , . [Under the] '[m]anifestation'
theory ... [some] courts have concluded that coverage
is provided by the insurance policy in place at the time
the injury becomes apparent, that is, when the injury is
manifested." Robert E. Keeton & Alan I. Widiss, Insurance
Law: A Guide to Fundamental Principles, Legal Doctrines,
and Commercial Practices 5.10(d)(3). at 598 (1988).
manifest constitutional error. See ERROR (2).
manifest-disregard doctrine. (1983) The principle that
an arbitration award will be vacated if the arbitrator
knows the applicable law and deliberately chooses to
disregard it, but will not be vacated for a mere error
or misunderstanding of the law. [Cases: Alternative
Dispute Resolution (;:::> 329.]
manifest error. See ERROR (2).
manifest-error-or-dearly-wrong rule. (1981) In some
jurisdictions, the doctrine that an appellate court
cannot set aside a trial court's finding of fact unless
a review of the entire record reveals that the finding
has no reasonable basis. rCases: Appeal and Error C=:
999(1),1008.1(5,
manifest injustice. A direct, obvious, and observable
error in a trial court, such as a defendant's guilty plea
that is involuntary or is based on a plea agreement that
the prosecution has rescinded. [Cases: Criminal Law
(;:::>273.1(2),274(3.0.]
manifest intent. See INTENT (1).
manifest law. See LEX MANIFESTA.
manifest necessity. See NECESSITY.
manifesto. (17c) A written statement publicly declar
ing the issuer's principles, policies, or intentions; esp.
a formal document explaining why a state or nation
declared war or took some other significant interna
tional action.
manifest thief. See FUR MANIFESTUS.
manifest weight ofthe evidence. A deferential standard
ofreview under which a verdict will be reversed or dis
regarded only if another outcome is obviously correct
and the verdict is dearly unsupported by the evidence.
Cf. WEIGHT OF THE EVIDENCE. [Cases: Criminal Law
Evidence (;:::>584.J
manipulation. Securities. (1888) The illegal practice of
raising or lowering a security's price by creating the
appearance ofactive trading . Manipulation is pro
hibited by section lO(b) of the Securities Exchange
Act of 1934.15 USCA 78j(b). -Also termed market
manipulation; stock manipulation. [Cases: Securities
Regulation (;:::>60.25.]
mankind. See MAN (2).
1049
Mann Act. A federal law, enacted originally in 1910,
making it illegal to transport an individual in interstate
or foreign commerce for prostitution or other criminal
sexual activity. -It is named its sponsor, Rep. James
Robert Mann. 18 USCA 2421-2424. Also termed
White Slave Traffic Act. [Cases: Prostitution C~;>15.]
manner and form. See MODO ET FORMA.
mannire (m,,-flI-ree), vb. [Law Latin) Hist. To summon
(an adverse party) to court; to prosecute (a case).
mannopus (man-oh-pas). [fro Latin manus "hand" +
opus "work"] Hist. 1. Manual labor. 2. A day's work. 3.
Goods taken from the hands ofan apprehended thief;
MAINOUR.
manor. (14c) 1. A feudal estate, usu. granted by the king
to a lord or other high person and cultivated as a unit.
-In more ancient times, the lord's manor included a
village community, usu. composed ofserfs.
"[T]o ask for a definition of a manor is to ask for what can
not be given. We may however draw a picture of a typical
manor. and, this done, we may discuss the |
for what can
not be given. We may however draw a picture of a typical
manor. and, this done, we may discuss the deviations from
this type .... [W]e may regard the typical manor (I) as
being, qua viII, a unit of public law, of police and fiscal
law, (2) as being a unit in the system of agriculture, (3) as
being a unit in the management of property, (4) as being a
jurisdictional unit. But we ... see that hardly one of these
traits can be considered as absolutely essential. The most
important is the connection between the manor and the
viII ...." 1 Frederick Pollock & Frederic W. Maitland, The
Historv of English Law Before the Time ofEdward / 596-97
(2d ed. 1898).
''The term [manor] applied, after the Norman conquest, to
estates organized under knights, ecclesiastical corpora
tions, or otherwise. and managed and cultivated as units.
By the end of the 11th century, the main element was the
feudal lord, and soon he came to be regarded as the owner
of the manor, and to have authority over the tenants, and
the right to hold a court for them .... In the thirteenth
and fourteenth centuries, a manor also implied a right of
jurisdiction exercised through a court baron, attended by
both freeholders and villein tenants .... In the eighteenth
century the manorial court decayed rapidly, cases being
generally brought in the King's courts, the only surviving
business being copyhold conveyancing." David M. Walker,
The Oxford Companion to Law 803 (1980).
reputed manor. A manor in which the lands not
granted in tenancy but reserved for the lord's own
use (demesne lands) and services become absolutely
separated. The manor is no longer a manor in actu
ality, only in reputation. Also termed seigniory in
gross.
2. A jurisdictional right over tenants ofan estate, usu.
exercised through a court baron. 3. Hist. In the United
States, a tract ofland occupied by tenants who pay rent
to a proprietor. 4. A mansion on an estate.
manorial extent. Hist. A survey ofa manor by a jury of
tenants, giving the numbers and names oftenants, the
size oftheir holdings, the kind oftenure, and the kind
and amount ofthe tenants' services.
manorial system. The medieval system ofland owner
ship in which serfs and some freemen cultivated the
soil of a manor in return for a lord's protection. See
MANOR (1). manslaughter
manse (mans), n. [Law Latin] Hist. 1. A portion ofland
large enough to maintain one family.; a sufficient
amount ofland to be worked by a yoke ofoxen for a
year. 2. A house without land; MESSUAGE. 3. The resi
dence of a minister, esp. a Presbyterian minister. 4. A
large, imposing residence. -Also termed mansus.
manser (man-sar), n. [Law Latin] Hist. A bastard.
Mansfield rule. (1968) The doctrine that a juror's testi
mony or affidavit about juror misconduct may not be
used to challenge the verdict. This Mansfield rule
is intended to ensure that jurors are heard through
their verdict, not through their postverdict testimony.
In practice, the rule lessens the possibility that lOSing
parties will seek to penetrate the secrets of the jury
room. The rule was first announced in Vaise v. Delaval,
99 Eng. Rep. 944 (K.B. 1785), in an opinion by William
Murray, first Earl ofMansfield, the Lord ChiefJustice of
the Court ofKing's Bench. [Cases: Criminal Law C=>
957; Federal Civil Procedure C':::>2371; New Trial
143; Trial G=>344.]
mansio (man-shee-oh), n. [Law Latin] Hist. 1. An inn.
2. A house.
mansion-house. l. Hist. The residence of the lord of a
manor. 2. DWELLING-HOUSE.
mansion-house rule. The doctrine that a tract of land
lying in two counties will be assessed, for property-tax
purposes, in the county in which the house is located.
[Cases: Taxation C=>2216.]
manslaughter, n. (15c) The unlawful killing ofa human
being without malice aforethought. Also termed (in
some jurisdictions) cuLpable homicide. Cf. MURDER.
[Cases: Homicide C=>654.]- manslaughter, vb.
first-degree manslaughter. See voluntary manslaugh
ter.
intentional manslaughter. See voluntary manslaugh
ter.
intoxication manslaughter. An unintentional homicide
committed by an intoxicated person while operating
a vehicle or some other type ofmachinery. lCases:
Automobiles G=>344.]
involuntary manslaughter. (18c) Homicide in which
there is no intention to kill or do grievous bodily
harm, but that is committed with criminal negligence
or during the commission ofa crime not included
within the felony-murder rule. Also termed neg
ligent manslaughter; second-degree manslaughter;
manslaughter in the second degree. Cf. ACCIDENTAL
KILLING. [Cases: Homicide G=>659.]
"Involuntary manSlaughter is a 'catch-all' concept. It
includes all manslaughter not characterized as voluntary."
Rollin M. Perkins & Ronald N. Boyce, Criminal Law 104 (3d
ed. 1982).
"The only differences between the legal use and the
everyday use of 'voluntary,' 'not voluntary,' and 'involun
tary' seem to be (a) a more frequent use of 'involuntary'
as a synonym of 'not voluntary' and (b) a technical use of
'involuntary' in the crime of 'involuntary manslaughter,'
where it seems to have the meaning of 'unintentional.'
Thus, as contrasted with 'voluntary manslaughter,' there
is no suggestion that death, as contrasted with harm, was
intended or foreseen. Though it is often confined to cases
of assault and battery where death results, for example
either from the withholding of food or from excessive chas
tisement of a child, some jurists say that it can be due to
any unlawful and dangerous action causing death." Alan
R. White, Grounds of Liability 61-62 (1985).
manslaughter in the first degree. See voluntary man
slaughter.
manslaughter in the second degree. See involuntary
manslaughter.
misdemeanor manslaughter. (1947) Unintentional
homicide that occurs during the commission of a
misdemeanor (such as a traffic violation). [Cases:
Homicide C::>661.)
negligent manslaughter. See involuntary manslaugh
ter.
second-degree manslaughter. See involuntary man
slaughter.
voluntary manslaughter. (lSc) An act of murder
reduced to manslaughter because ofextenuating cir
cumstances such as adequate provocation (arousing
the "heat ofpassion") or diminished capacity. -Also
termed intentional manslaughter; first-degree man
slaughter; manslaughter in the first degree; uninten
tional murder. [Cases: Homicide 0=658.)
manstealing. See KIDNAPPING.
mansuetae naturae (man-swee-tee na-tyoor-ee), adf
[Latin "of a tamable nature") Civil law. (Of animals)
tame or tamable. [Cases: Animals 0=1.5.)
mansuetae naturae (man-swee-tee na-tyoor-ee), n. Civil
law. Tame, domesticated animals. See domestic animal
under ANIMAL. [Cases: Animals C= L5;)
mansuetus (man-swee-tas), adj. [Latin) Roman law.
Tame; tamed.
mansus. See MANSE.
manticulate (man-tik-ya-layt), vb. To pick pockets.
manticuiation, n.
mantle child. See CHILD.
mantrap. See TRAP.
manual, adj. Used or performed by hand <manual
labor>.
manual delivery. Delivery ofpersonal property by actual
and corporeal change in possession.
Manual for Courts-Martial. A manual that implements
the Uniform Code ofMilitary Justice . Itwas adopted
in 1969 by presidential executive order. [Cases: Military
Justice (;:::)507.J
manual gift. See GIFT.
manu aliena (man-yoo ay-Iee-ee-n<l or al-ee-). [Latin]
Scots law. By the hand of another. The phrase was
contained in a notary's docket and was attached to the
end ofan instrument ofseisin, as a means for the notary
to indicate that the instrument was written by another
person. See DOCKET (5). manualis obedientia (man-yoo-ay-lis a-bee-dee-en
shee-<l). [Latin "obedience by (taking or kissing) hand"]
Sworn obedience upon an oath.
manual labor. Work performed chiefly through muscular
exertion, with or without tools or machinery.
Manual of Classification. Patents. The U.S. Patent
and Trademark Office's official looseleaf publication
describing the patent classification system and giving
brief explanations ofeach class and subclass within the
system.
Manual of Patent Examining Procedure. The book of
substantive law (judicial and administrative-law prec
edents) and procedural rules for patent examiners at
the U.S. Patent and Trademark Office . The MPEP
is the primary resource that patent examiners use to
process patent applications. -Abbr. MPEP. [Cases:
United States 0=97.]
Manual of the Judge Advocate General. The Secretary
of the Navy's directive on military justice, with minor
variations between rules applicable to the Navy and
those applicable to the Marine Corps. Also termed
JAG Manual. [Cases: Military Justice C=51O.]
manual-rating insurance. See INSURANCE
manu brevi (man-yoo bree-vI). See BREVI MANU.
manucaptio (man-ya-kap-shee-oh), n. [Law Latin) Rist.
1. Surety; security; bail. 2. A writ allowing a person to
be admitted to bail, when the person had been arrested
for a felony but could not be admitted to bail by the
sheriff. See MAINPRISE.
manucaption (man-yoo-kap-shan), n. Rist. 1. MAIN
PRISE. 2. A writ ordering someone to produce an
alleged felon in court.
manucaptor. See MAINPERNOR (2).
manufacture, n. (l6c) Patents. A thing that is made or
built by a human being (or by a machine), as distin
guished from something that is a product of nature;
esp. any material form produced by a machine from an
unshaped composition of matter. Manufactures are
one of the statutory categories ofinventions that can
be patented. Examples ofmanufactures are chairs and
tires. 35 USCA 101. Also termed article ofmanu
facture. Cf. MACHINE; PROCESS (3). [Cases: Patents
"13.)
"A manufacture must have a definable structure that is
claimed as its patentable characteristic. Manufactures are,
after all, a category of product patents, and therefore must
be 'things,' as opposed to ways or means. In summary, a
patentable manufacture is any humanmade structure that
has inventive characteristics." Arthur R. Miller & Michael H.
Davis, Intellectual Property in a Nutshel/30 (2d ed. 1990).
manufactured diversity. See DIVERSITY OF CITIZEN
SHIP.
manufactured home. See HOME.
manufacturer. (17c) A person or entity engaged in pro
ducing or assembling new products . A federal law
has broadened the defll1ition to include those who act
for (or are controlled by) any such person or entity in
1051
the distribution ofnew products, as well as those who
import new products for resale. 42 USCA 4902(6).
manufacturer's liability. See PRODUCTS LIABILITY.
manufacturer's lien. See LIEN.
manufacturing clause. Hist. 1. A component of the
Copyright Act of 1976 prohibiting imports of more
than 2,000 copies of a nondramatic English-language
literary work by an American author, unless the
material was manufactured in Canada or the U.S.
The manufacturing clause expired in 1986. 2. A com
ponent ofthe Copyright Act of 1909 limiting copyright
protection for English-language books and periodicals
to those printed in the U.S.
manufacturing cost. See COST (1).
manufacturing defect. See DEFECT.
manu forti (man-yoo for-til. [Latin] With strong
hand. _ This term was used in old writs of trespass
to allege forcible entry, as in manu forti et cum multi
tudine gentium ("with strong hand and multitude of
people").
manu longa (man-yoo long-ga ). See LONGA MANU.
manu militari (man-yoo mil-a-tair-I). [Latin] Hist. By
military force.
manumission (man-ya-mish-an), n. [Latin manumissio
"I send out of hand"] (15c) Roman law. The granting
of freedom to a slave. -In the Republic and early
Empire, there were three usual methods, all of which
made the freed slave a citizen. These were (1) manumis
sion vindicta (by the rod), a fictitious lawsuit in which
a liberator touched the slave with a wand or rod in the
presence of the praetor and alleged that he was free;
(2) manumission censu, by which the slave's name was
en |
etor and alleged that he was free;
(2) manumission censu, by which the slave's name was
enrolled in the census as a citizen; and (3) manumission
testamento, by will. Under Justinian, a grant offreedom
in any form (except in fraud ofcreditors) made the slave
free and a citizen. Also termed manumissio. [Cases:
Slaves ~22.]
"Manumission is a kind of new birth. The master (patronus)
therefore stands to his freedman in a relation analogous to
the relation between father and son. The patron, as such,
is entitled, as against his libertus, to a father's rights of
succession and guardianship. He has the right of moderate
chastisement (levis coercitio). He has the same claim to
be treated with respect as he has against his son. He
can claim to be supported by the libertus, if he falls into
poverty. He is, lastly, entitled to certain services on the
part of the freedman, which he can, if necessary, enforce
by action, provided only the freedman had promised them
after his manumission and in a manner not derogatory to
his liberty." Rudolph Sohm, The Institutes: A Textbook of
the History and System of Roman Private Law 170 Oames
Crawford Ledlie trans., 3d ed. 1907).
manumission censu. The freeing of a slave by having
the censor enter the slave's name on the census roll,
the slave profeSSing to be a freeman in the presence
of the master. -Once the censor entered the slave's
name on the census roll, the slave became a freeman
and a citizen -by a simple stroke ofthe pen. -Also
termed manumissio censu. manutenentia
manumission sacrorum causa. The freeing of a slave
by the master's solemnly declaring that the slave was
to be free while holding a limb ofthe slave and prom
ising to pay a sum of money if the freedman later
departs from the sacra (family rites). -The master
then turned around and released the slave, who
became free but was bound to perform the family
rites. -Also termed manumissio sacrorum causa.
manumission testamento. The freeing ofa slave by will
in either of two ways: (1) the master's granting the
slave freedom outright in the will, or (2) the master's
imposing on an heir the obligation offreeing the slave,
in which case the slave became the freedman of the
heir. -Also termed manumissio testamento.
manumission vindicta. The ceremonial freeing of a
slave whereby a third party, in the presence of the
praetor, placed a rod (vindicta) on the slave while
claiming that the slave was a freedman, where
upon the master admitted the slave's freedom and
the praetor then declared the slave to be free. -This
ceremony was actually a fictitious action at law.
Also termed manumissio vindicta.
manumit (man-Y<l-mit), vb. To free (a slave). -manu
mitter, n.
manung (man-<lng). Hist. An official's jurisdictional
district. -Also spelled monung.
manuopus (man-yoo-oh-pas). See MAINOUR.
manupes (man-ya-peez), n. [Law Latin] Hist. A full
12-inch foot as a legal measure.
manupretium (man-Y<l-pree-shee-am), n. [Latin] Roman
law. Wages for performed labor or services.
manu propria (man-yoo proh-pree-a). [Latin] Hist. By
one's own hand.
manurable (ma-n[y]oor-a-bal), adj. [Law French ff. Old
French main "hand"] Hist. (Of a thing) capable of being
held in hand; capable of being touched.
manure (ma-nyoor), vb. [Law French fro Old French main
"hand"] Hist. To use (something) manually; to perform
manual labor on (something).
manus (may-nas), n. [Latin "hand"]!. Roman law. The
power exercised by the head of a family over all its
members and slaves; esp. a husband's power over his
wife; marital subordination, which accompanied most
marriages in early Rome. 2. Hist. A compurgator, or the
oath taken. -"Ihis usage of manus may stem from the
affiant's placing a hand on the Bible while taking the
oath. See COMPURGATOR.
manuscript. (16c) An unpublished writing; an author's
typescript or written work product that is proposed
for publication.
manuscript policy. See INSURANCE POLICY.
manus mortua (may-nas mor-choo-a). [Latin "dead
hand"] See MORTMAIN.
manutenentia (man-ya-ta-nen-shee-a), n. [Law Latin]
His!. The old writ of maintenance. See MAINTE
NANCE.
1052 manworth
manworth. Hist. The value ofa person's life.
Mapp hearing. (1971) Criminal procedure. A hearing
held to determine whether evidence implicating the
accused was obtained as the result of an illegal search
and seizure, and should therefore be suppressed. Mapp
v. Ohio. 367 U.S. 643,81 S.Ct. 1684 (1961). [Cases:
Criminal Law (;:::>394.6.]
maquiladora (mah-kee-ld-dohr-d), 11. [fro Spanish
maquilar "gristmill"] (1976) A Mexican corporation,
esp. one that holds a permit to operate under a special
customs regime that temporarily allows the corpora
tion to import duty-free into Mexico various raw mate
rials, equipment, machinery, replacement parts, and
other items needed for the assembly or manufacture
of fmished goods for export. -Often shortened to
maquila.
mara (mair-d), 11. [Law Latin] Hist. A lake; a pool; a body
ofwater that cannot be drained.
MARAD. abbr. MARITIME ADMINISTRATION.
maraud (md-rawd), vb. (18c) To rove about to pillage or
plunder; to loot. -marauder, 11.
marcatus (mahr-kay-tds), n. [l.aw Latin] Hist. The yearly
rent ofa tract ofland.
march. Hist. A boundary between countries or territo
ries, esp. the border between England and Wales or
between England and Scotland.
Marchers. Hist. Lords who lived on the borders of
Scotland and Wales, and operated, with the permission
of the English sovereigns, under their own private laws.
-The laws were eventually abolished by the statute 27
Hen. 8, ch. 26. Also termed Lords Marchers.
"Thus the Lords Marchers were practically independent
potentates of a kind very unusual in England. From this
two consequences flowed. In the first place there grew up
in their jurisdictions a mixture of Welsh custom and English
law known as the custom of the Marches. In the second
place, although they held of the king, their allegiance sat so
lightly upon them that it was necessary to declare in 1354
that 'all the Lords of the Marches ofWales shall be perpetu
ally attending and annexed to the crown of England, and
not to the principality ofWales, in whose hands so ever the
same principality be,'" 1 William Holdsworth, A History of
English Law 121 (7th ed. 1956).
marchet (mahr-chet). Hist. A fee paid by a feudal tenant
to the lord so that the tenant's daughter could marry
someone outside the lord's jurisdiction or so that the
lord would waive the droit du seigneur. Also termed
marcheta; marchetum; merchet; mercheta; merchetum;
maiden rent. See DROIT DU SEIGNEUR.
"Any service which stamps the tenant as an unfree man,
stamps his tenure as unfree; and in common opinion such
services there are, notably the merchetum. Now among the
thousands of entries in English documents relating to this
payment, it would we believe be utterly impossible to find
one which gave any sanction to the tales of a ius primae
noctis. The context in which this duty is usually men
tioned explains at least one of the reasons which underlie
it, The tenant may not give his daughter (in some cases
his son or daughter) in marriage -at least not outside
the manor. , .. No doubt a subjection to this restraint
was regarded as very base, and sometimes it is described
in vigourous words which express a free man's loathing for servility: -'he must buy, he must make ransom for,
his flesh and blood,'" 1 Frederick Pollock & FrederiC W,
Maitland, The History of English Law Before the Time of
Edward I 372 (2d ed. 1898),
march-in rights. Patel1ts. The government's right to
step in and grant a new license or revoke an existing
license if the owner of a federallv funded invention
(or the owner's licensee) has not adequately developed
or applied the invention within a reasonable time. 35
USCA 203. [Cases: Patents
marchioness (mahr-shd-nis or mahr-sha-nes), n. [fr.
Law Latin marchiol1issa, the feminine counterpart to
marchio "marquess"] A female dignity, equivalent to a
marquis, conferred by creation or by marriage with a
marquis. See MARQUIS.
Marcus model. Labor law. A method for determining
whether a union member's state-law claim against the
employer is preempted by federal law, by focusing on
whether the state-law claim can be maintained inde
pendently of an interpretation of the collective-bar
gaining agreement. -In Lingle v. Norge Div. ofMagic
Chef, Inc., 486 U.S. 399, 108 S.Ct. 1877 (1988), the
Supreme Court held that a union member's state-law
retaliatory-discharge claim was not preempted by the
Labor-Management Relations Act because the claim
could be resolved without interpreting the collective
bargaining agreement. There are at least two models for
applying the Lingle test: the White model, which focuses
on whether the claim is negotiable or nonnegotiable
(that is, whether state law allows the claim to be waived
by a private contract), and the Marcus model, which
focuses on the independence ofthe claim in relation to
the collective-bargaining agreement. Cnder the Marcus
model. ifthe claim can be maintained separately from
an interpretation ofthe collective-bargaining agree
ment, it is not preempted regardless of whether the
claim is generally waivable in contract. The Marcus
model is named for the author of the law-review note
in which it was proposed. Stephanie R. Marcus, Note,
The Need for a New Approach to Federal Preemption
ofUnion Members' State Law Claims, 99 Yale L.J. 209
(1989). See LINGLE TEST. Cf. WHITE MODEL.
mare (mair-ee or mahr-ee), n. Hist. [Latin] The sea. See
SEA.
mare clausum (mair-ee or mahr-ee klaw-zdm). [Latin
"closed sea"] A sea or other body of naVigable water
that is under the jurisdiction of a particular nation
and is closed to other nations.
mare liberum (mair-ee or mahr-ee lib-dr-dm or
II-bar-am). [Latin "free sea"] 1. A sea or other body
of navigable water that is open to all nations. 2.
FREEDOM OF THE SEAS.
marescallus (mar-d-skal-as), 11. [Law Latin]}. A marshal;
a high royal officer. Also termed mareschal. 2. A
master ofthe stables. 3. A military officer, similar to a
constable, who acted as quartermaster. 4. An officer of
the Court ofExchequer. 5. A state officer. 6. An officer
of a manor.
1053
marettum (ma-ret-am), n. [fr. Latin mare "the sea" +
tegere "to cover"] Hist. Marshy ground flooded by the
sea.
margin, n. (14c) 1. A boundary or edge. 2. A measure or
degree of difference. 3. PROFIT MARGIN. 4. The differ
ence between a loan's face value and the market value
of the collateral that secures the loan. 5. Cash or col
lateral required to be paid to a securities broker by an
investor to protect the broker against losses from secu
rities bought on credit. [Cases: Securities Regulation
~45.1O, 45.11.16.1he amount of an investor's equity
in securities bought on credit through the broker.
margin, vb. -marginal, margined, adj.
good-faith margin. The amount of margin that a
creditor exercising good judgment would customar
ily require for a specified security position . This
amount is established without regard to the cus
tomer's other assets or securities positions held with
respect to unrelated transactions.
marginable security. See SECURITY.
margin account. See ACCOUNT.
marginal cost. See COST (1).
marginal note. A brief notation, in the nature of a sub
heading, placed in the margin of a printed statute to
give a brief indication of the matters dealt with in the
section or subsection beside which it appears . For
ease of reference, marginal notes are usu. in distinc
tive print. Many jurisdictions hold that notes of this
kind cannot be used as the basis for an argument about
the interpretation of a statute. -Also termed sidenote.
[Cases: Statutes (;::)211.]
marginal release. See RELEASE (2).
marginal revenue. See REVENUE.
marginal tax rate. See TAX RATE.
margin call. See CALL (2).
margin deficiency. Securities. The extent to which the
amount of the required margin exceeds the equity in
a margin account. [Cases: Securities Regulation C=
45.l1.}
margined security. See SECURITY.
margin list. A Federal Reserve Board list limiting the
loan value ofa particular bank's |
ined security. See SECURITY.
margin list. A Federal Reserve Board list limiting the
loan value ofa particular bank's stock to a certain per
centage (e.g., 50%) ofits market value . When a bank
is not on the list, no limit is placed on the loan value of
stock used as collateral.
margin requirement. Securities. The percentage of the
purchase price that a buyer must deposit with a broker
to buy a security on margin. This percentage of the
purchase price is set and adjusted by the Federal Reserve
Board. [Cases: Securities Regulation C'::45.11.]
"Margin requirements are the statutory and administrative
restrictions placed upon the percentage of the value of
securities that may be borrowed for the purpose of the
purchase of such securities, the term 'margin' referring to
the percentage of the value that must be paid in cash by the
purchaser. Such requirements have been implemented for
the purposes of preventing the excessive use of credit for
the purchase or carrying of securities, and of reducing the i
i
'
I
,
! marine-rescue doctrine
aggregate amount of the national credit resources, which
are directed by speculation into the stock market, and of
achieving a more balanced use of such resources." 69 Am,
Jur. 2d Securities Regulation -Federal 481 (1993).
initial margin requirement. Ihe minimum percentage
of the purchase price that a buyer must deposit with
a broker. The Federal Reserve Board establishes
minimum margin requirements to prevent excessive
speculation and price volatility. (Cases: Securities
Regulation (~.J45.ll.J
maintenance margin requirement. The minimum
equity that a buyer must keep in a margin account,
expressed as a percentage ofthe account value. [Cases:
Securities Regulation ~45.11.J
margin stock. See marginable security under
SECURITY.
margin transaction. A securities or commodities trans
action made through a broker on a margin account.
Also termed buying on margin. See MARGIN (5). [Cases:
Securities Regulation ~45.11.J
mariage de convenance. See marriage ofconvenience
under MARRIAGE (1).
marinarius (mar-a-nair-ee-as), n. [Law Latin] Hist. A
seaman; a mariner. Marinarius capitaneus (kap-a
tay-nee-as) was the admiral or warden of the ports.
marine, adj. (15c) 1. Ofor relating to the sea <marine
life>. 2. Of or relating to sea navigation or commerce
<marine insurance> <marine interest>.
marine belt. See territorial waters under WATER.
marine carrier. See CARRIER.
marine contract. See maritime contract under
CONTRACT.
Marine Court in the City of New York. The New York
City court, originally created to resolve seamen's
disputes, that was the predecessor of the City Court
of New York.
marine insurance. See INSURANCE.
marine interest. See MARITIME INTEREST.
marine league. See LEAGUE.
marine loan. See maritime loan under LOAN.
marine peril. See PERIL OF THE SEA.
marine protest. A writing attested by a justice of the
peace, a notary public, or a consul, made or verified by
the master of a vessel, stating that the vessel has suffered
a severe voyage and that the master has engaged in
neither misconduct nor negligence. See PROTEST.
mariner. (l4c) A person employed on a vessel in sea navi
gation; SEAMAN. (Cases: Seamen ~2.]
marine-rescue doctrine. The rule that when a person
on a ship goes overboard, the ship must use all reason
able means to retrieve the person from the water ifthe
person can be seen, and, if the person cannot be seen,
must search for the person as long as it is reasonably
possible that the person is still alive. [Cases: Seamen
~29(1).]
1054 marine risk
marine risk. See PERIL OF THE SEA.
mariner's will. See soldier's will under WILL.
marine rule. The doctrine that if the cost of restoring
damaged property would exceed one-half the value
of the property before the damage, then the property
is deemed to be totally destroyed. _ The marine rule
developed in the context ofapplying marine insurance
to damaged ships, but it has also been applied to other
property, including buildings.
mariner's hypothec. See HYPOTHEC.
marine service. See MARITIME SERVICE.
maritage (ma-ri-tij), n. See DOWRY.
maritagium (mar-a-tay-jee-am), n. [l.aw Latin] Hist. 1.
A lord's right to arrange a marriage for his infant ward;
specif., the power ofa feudal lord to give his infant ward
or a vassal's heiress, minor heir, or widow in marriage,
or to extract a fine from a vassal upon the vassal's
marriage. 2. Hist. The income derived from fines paid
by vassals for the lord's permission to marry. 3. DOWER.
4. A marriage gift; DOWRY. See DOS. -Also termed (in
sense 4) maritage.
"[Wjhile to the common lawyer dos meant dower, in other
systems it meant dowry: a gift to the Wife, or to husband
and wife, by the bride's parents or other relatives. In
England this was called the 'marriagegift' or maritagium.
Marriage-gifts were com monly made either to establish a
cadet branch of a family or to assist a daughter who was
not an heiress to make a good match:' J.H. Baker, An intro
duction to English Legal History 31 0 (3d ed. 1990).
maritagium habere (mar-a-tay-jee-am ha-beer-ee).
[Law Latin] To have the right of arranging a woman's
marriage. _ This was a privilege granted by the Crown
to favored subjects. See MARITAGIUM.
marital, adj. (17c) Of or relating to the marriage rela
tionship <marital property>. [Cases: Divorce <8=:>248;
Husband and Wife (~~1-354.1
marital agreement. (1866) An agreement between
spouses or two people engaged to be married con
cerning the division and ownership of marital
property during marriage or upon dissolution by
death or divorce; esp. a premarital contract or sepa
ration agreement primarily concerned with dividing
marital property in the event ofdivorce. -Also termed
marriage settlement; property settlement. See PRENUP
TIAL AGREEMENT; POSTNUPTIAL AGREEMENT. [Cases:
Husband and Wife
marital-communications privilege. See marital privi
lege (1) under PRIVILEGE (3).
marital deduction. See DEDUCTION.
marital-deduction trust. See TRUST.
marital dissolution. See DIVORCE.
marital domicile. See matrimonial domicile under
DOMICILE.
marital estate. See marital property under PROPERTY.
marital home. See FAMILY HOME.
marital immunity. See husband-wife immunity under
IMMUNITY (2). marital life-estate trust. See bypass trust under TRUST.
marital misconduct. Any of the various statutory
grounds for a fault divorce, such as adultery or cruelty.
Seefault divorce under DIVORCE. [Cases: Divorce <8=:>
12-38,252.2.]
marital portion. 1. Civil law. The portion of a deceased
spouse's estate to which the surviving spouse is entitled.
2. Louisiana law. The portion of a deceased spouse's
estate to which the surviving spouse is entitled if the
spouse died "rich in comparison with the surviving
spouse." La. Civ. Code art. 2432. [Cases: Descent and
Distribution <8=:>52(1).]
marital-privacy doctrine. A principle that limits gov
ernmental intrusion into private family matters, such
as those involving sexual relations between married
persons. The marital-privacy doctrine was first rec
ognized in Griswold v. Connecticut, 381 U.S. 479, 85
S.Ct. 1678 (I965). The doctrine formerly deterred state
intervention into incidents involving domestic violence.
Today, with the trend toward individual privacy rights,
the doctrine does not discourage governmental protec
tion from domestic violence. -Also termed doctrine of
marital privacy. [Cases: Constitutional Law <8=:> 1247.]
marital privilege. See PRIVILEGE (3).
marital property. See PROPERTY.
marital rape. See RAPE.
marital residence. See FAMILY HOME.
marital rights. (18c) Rights and incidents (such as
property or cohabitation rights) arising from the
marriage contract. [Cases: Husband and Wife
1-25(6).]
marital settlement agreement. See DIVORCE AGREE
MENT.
marital status. The condition of being single, married,
legally separated, divorced, or widowed.
marital tort. See TORT.
maritare (mar-<l-tair-ee), vb. Hist. To marry.
mariticide. (1992) 1. The murder ofone's husband. 2. A
woman who murders her husband. Cf. UXORICIDE.
mariticidal, adj.
maritima Angliae (m<l-rit-a-m<J ang-glee-ee). [Law
Latinl Hist. l. The seacoast. 2. The Crown's sea revenue,
as from wreckage and from whales or sturgeons cast
ashore. -The revenue was formerly collected by sheriffs
and later by the Lord High Admiral.
maritima incrementa (m<J-rit-a-ma in-kra-men-ta).
[Latin "marine increases"] Hist. Alluvion caused by
the sea; land gained from the sea.
maritime (mar-i-tIm), adj. (16c) 1. Connected with or
situated near the sea. 2. Ofor relating to sea navigation
or commerce.
'The word 'maritime' has in the Constitution its appropriate
meaning, i.e., relating to the sea, and 'sea' is a word ofwide
extension and appl ication .... Its classical and scriptural
equivalents are applied to all sorts of navigable waters. It
is not restricted, even in common speech, to waters where
the tide ebbs and flows, for the Baltic Sea, the Black Sea,
1055
the Sea of Azof, the Sea of Marmora, the Mediterranean
Sea, the great scenes of early maritime enterprise, have
no visible tide." 1 Steven F. Friedell, Benedict on Admiralty
103, at 7-5 (7th ed. 1996).
Maritime Administration. A unit in the U.S. Depart
ment of Transportation responsible for subsidizing
certain costs of operating ships under the U.s. flag;
constructing or supervising the construction of mer
chant-type ships for the U.S. government; administer
ing the War Risk Insurance Program; and operating the
Merchant Marine Academy, which trains merchant
marine officers. Abbr. MARAD. [Cases: Shipping
(;-)3,14.]
maritime belt. See territorial waters under WATER.
Maritime Commission. See FEDERAL MARITIME COM
MISSION.
maritime-connection doctrine. See LOCALITY-PLUS
TEST.
maritime contract. See CONTRACT.
maritime court. See ADMIRALTY (1).
maritime employment. Under the Longshoremen's
and Harbor Workers' Compensation Act, a job that
is related to the loading, unloading, construction, or
repair of a vesseL 33 USCA 902(3). [Cases: Workers'
Compensation (;::>260, 262.J
maritime flavor. The relation ofa given case to shipping
concerns. This is a factor used in determining federal
admiralty jurisdiction over a particular matter by ana
lyzing whether the matter sufficiently relates to marine
and shipping concerns and whether there is need for a
federal response. [Cases: Admiralty (;::> 10(2),18.]
'There is perhaps no more elusive concept in the law of
admiralty than 'maritime flavor: ... While 'maritime flavor'
is incapable of precise definition, certain observations may
be helpful. Generally, courts find 'maritime flavor' in those
events and transactions which are miijor concerns of the
shipping industry. This is tempered by the realization that
exercise of federal control will not necessarily promote
maritime shipping with the same vigor as control by a
coastal or predominantly maritime state. Since federal law
will not necessarily be more favorable, courts may find
'maritime flavor' only when there is a perceived need for a
uniform national rule, which can only be provided by the
federal sovereign: Frank L Maraist, Admiralty in a Nutshell
23 (2d ed. 1988).
maritime interest. Interest charged on a loan secured
by a sea vessel or its cargo, or both. Because of the
lender's considerable risk, the interest rate may be
extraordinarily high. Also termed marine interest.
maritime jurisdiction. See ADMIRALTY AND MARITIME
JURISDICTION.
maritime law. The body of law governing marine
commerce and navigation, the carriage at sea ofpersons
and property, and marine affairs in general; the rules
governing contract, tort, and workers' -compensation
claims or relating to commerce on or over water.
Also termed admiralty; admiralty law; sea law. Cf.
GENERAL MARITIME LAW; LAW OF THE SEA. [Cases:
Admiralty (;::> 1.5.]
maritime lien. See LIEN. market
maritime loan. See LOAN.
maritime peril. A danger or risk arising from navigating
or being at sea. [Cases: Salvage ~-:;-'5.]
maritime service. Maritime law. Work performed in
connection with a ship or commerce on navigable
waters, such as service to preserve a ship's crew, cargo,
or equipment. -Also termed marine service. [Cases:
Admiralty (;::> 13.)
maritime state. Rist. The collective officers and mariners
of the British n |
alty (;::> 13.)
maritime state. Rist. The collective officers and mariners
of the British navy.
maritime tort. See TORT.
maritus (md-rI-tds), n. [Latin] A husband; a married
man.
mark, n. (bef. 12c) l. A symbol, impression, or feature
on something, usu. to identify it or distinguish it from
something else. 2. TRADEMARK (1). 3. SERVICEMARK.
benchmark. See BENCHMARK.
certification mark. See certification trademark under
TRADEMARK.
collective mark. See collective trademark under TRADE
MARK.
markdown. A reduction in a selling price.
marked money. (1883) Money that bears a telltale mark
so that the money can be traced, usu. to a perpetrator
of a crime, as when marked money is given to a kid
napper as ransom.
market, n. (bef. 12c) 1. A place of commercial activity
in which goods or services are bought and sold <the
farmers' market>. -Also termed mart. 2. A geo
graphic area or demographic segment considered as a
place ofdemand for particular goods or services; esp.
prospective purchasers ofgoods, wherever they are <the
foreign market for microchips>. 3. Hist. The privilege of
having a public market. 4. The opportunity for buying
and selling goods or services; the extent of economic
demand <a strong job market for accountants>. 5. A
securities or commodities exchange <the stock market
dosed early because ofthe blizzard>. [Cases: Exchanges
C:::;; 1-10.10.] 6. The business of such an exchange; the
enterprise of buying and selling securities or com
modities <the stock market is approaching an all-time
high>. [Cases: Exchanges (;::> 1-13.10.] 7. The price at
which the buyer and seller ofa security or commodity
agree <the market for wheat is $8 per bushel>. [Cases:
Exchanges (;::> 13.]
advancing market. See bull market.
aftermarket. See secondary market.
auction market. A market (such as the New York Stock
Exchange) in which securities are bought and sold
by competitive bidding through brokers. Cf. negoti
ated market.
bear market. A securities market characterized by
falling prices over a prolonged period. - Also termed
down market; receding market.
1056 market
black market. An illegal market for goods that are con
trolled or prohibited by the government, such as the
underground market for prescription drugs.
bull market. A securities market characterized by
rising prices over a prolonged period. -Also termed
advancing market; strong market.
buyer's market. A market in which supply Significantly
exceeds demand, resulting in lower prices.
capital market. A securities market in which stocks
and bonds with long-term maturities are traded. See
financial market.
common market. An economic association formed by
several nations to reduce or eliminate trade barriers
among them, and to establish uniform trade barriers
against nonmembers; esp. (usu. cap.), EUROPEAN
UNION.
currency market. See foreign-exchange market.
derivative market. A market for the exchange ofderiv
ative instruments. -Also termed paper market. See
DERIVATIVE.
discount market. The portion of the money market in
which banks and other financial institutions trade
commercial paper.
down market. See bear market.
financial market. A market tor the exchange ofcapital
and debt instruments. See capital market; money
market.
foreign-exchange market. A market where various cur
rencies are traded internationally . Foreign-exchange
markets take the form of spot, futures, and options
markets. Also termed currency market. Seefutures
market; spot market.
forward market. See futures market.
free market. See open market.
Friday market. The normal tendency for stock-prices
to decline on Fridays . The tendency occurs because
many investors balance their accounts before the
weekend to avoid any adverse changes in market
prices over the weekend.
futures market. A commodity exchange in which
futures contracts are traded; a market for a trade (e.g.,
commodities futures contracts and stock options) that
is negotiated at the current price but calls for delivery
at a future time. -Also termed forward market. See
FUTURES CONTRACT. [Cases: Commodity Futures
Trading Regulation
geographic market. Antitrust. The part of a relevant
market that identifies the regions in which a firm
might compete. -If a firm can raise prices or cut
production without causing a quick influx of supply
to the area from outside sources, that firm is operat
ing in a distinct geographic market. [Cases: Antitrust
and Trade Regulation (;:::>558.]
"For purposes of [the Sherman Act], the relevant geo
graphic market comprises the area in which the defendant
effectively competes with other individuals or businesses for distribution of the relevant product. Stated differently,
the relevant geographic market consists of the area from
which the sellers of a particular product derive their cus
tomers, and the area within which the purchasers of the
product can practically seek the product." 54 Am. Jur. 2d
Monopolies, Restraints ofTrade, and Unfair Trade Practices
57, at 119-20 (1996).
gray market. A market in which the seller uses legal but
sometimes unethical methods to avoid a manufac
turer's distribution chain and thereby sell goods (esp.
imported goods) at prices lower than those envisioned
by the manufacturer. See PARALLEL IMPORTS.
"One of the most controversial areas of customs law
concerns 'gray market goods,' goods produced abroad
with authorization and payment but which are imported
into unauthorized markets. Trade in gray market goods
has increased dramatically in recent years, in part because
fluctuating currency exchange rates create opportunities
to import and sell such goods at a discount rate from local
price levels." Ralph H. Folsom & Michael W. Gordon, Inter
national Business Transactions 20.8 (1995).
institutional market. The demand among large inves
tors and corporations for short-term funds and com
mercial paper.
market overt. An open, legally regulated public market
where buyers, with some exceptions, acquire good
title to products regardless of any defects in the seller's
title. Cf. FAIR. [Cases: Sales C=~234(2).l
money market. 1he financial market for dealing in
short-term negotiable instruments such as commer
cial paper, certificates of deposit, banker's accep
tances, and U.S. Treasury securities. See financial
market.
negotiated market. A market (such as an over-the
counter securities market) in which buyers and sellers
seek each other out and negotiate prices. Cf. auction
market.
open market. A market in which any buyer or seller
may trade and in which prices and product avail
ability are determined by free competition. Also
termedfree market.
original market. See primary market.
over-the-counter market. See OVER-THE-COUNTER
MARKET.
paper market. See derivative market.
primary market. The market for goods or services that
are newly available for buying and selling; esp. the
securities market in which new securities are issued
by corporations to raise capital. -Also termed
original market.
product market. Antitrust. The part of a relevant
market that applies to a firm's particular product by
identifying all reasonable substitutes for the product
and by determining whether these substitutes limit
the firm's ability to affect prices. [Cases: Antitrust and
Trade Regulation ~557.]
"For purposes of an antitrust claim under ... the Sherman
Act, the relevant product market includes those services
or commodities which are reasonably interchangeable by
consumers for the same purposes. In order to establish
1057
the relevant product market, therefore, a plaintiff must
sufficiently identify what types of products are reasonably
interchangeable substitutes for the defendant's product
within the appropriate area of competition." 54 Am. Jur. 2d
Monopolies, Restraints ofTrade, and Unfair Trade Practices
58, at 121 (1996).
public market. A market open to both buyers and
sellers.
receding market. See bear market.
recognized market. A market where the items bought
and sold are numerous and similar, where competitive
bidding and bartering are not prevalent, and where
prices paid in sales of comparable items are publicly
quoted. Examples of recognized markets include
stock and commodities exchanges. Under the UCC,
a secured creditor may, upon the debtor's default, sell
the collateral in a recognized market without notify
ing the debtor. Such a sale is presumed to be com
mercially reasonable.
relevant market. Antitrust. A market that is capable
of being monopolized -that is, a market in which
a firm can raise prices above the competitive level
without losing so many sales that the price increase
would be unprofitable . The relevant market includes
both the product market and the geographic market.
[Cases: Antitrust and Trade Regulation (:::::>556.]
secondary market. The market for goods or services
that have preViously been available for buying and
selling; esp. the securities market in which previously
issued securities are traded among investors. -Also
termed aftermarket.
seller's market. A market in which demand exceeds (or
approaches) supply, resulting in raised prices.
soft market. A market (esp. a stock market) character
ized by falling or drifting prices and low volume.
spot market. A market (esp. in commodities) in which
payment or delivery is immediate <the spot market
in oib.
strong market. See bull market.
thin market. A market in which the number ofbids or
offerings is relatively low.
marketability. (1877) Salability; the probability ofselling
property, goods, securities, or services at specified
times, prices, and terms. [Cases: Sales (:::::>272; Vendor
and Purchaser G-:::.> 130(.5).]
marketability test. Mining law. The principle that, for
someone to obtain a patent on a mining claim on federal
land, there must be a shOWing that a reasonably prudent
person could extract and market the claimed mineral
at a profit, and that at the time of discovery, a large
enough market for the mineral existed to attract the
efforts of a reasonably prudent person. [Cases: Mines
and Minerals (:::::>39.]
marketable, adj. (I6c) Of commercially acceptable
quality; fit for sale and in demand by buyers. -Also
termed merchantable. [Cases: Sales (:::::>272.] market-maker
marketable-product rule. Oil & gas. For royalty-calcu
lation purposes, the doctrine that "production" occurs
when oil or gas is pumped up, stored, and made market
able through processing . Until producing a market
able product, the lessee bears all costs ofcapturing and
handling oil and gas. Cf. CAPTURE-AND-HOLD RULE.
marketable security. See SECURITY.
marketable title. See TITLE (2).
marketable-title act. (1957) A state statute providing that
a person can establish good title to land by searching
the public records only back to a specified time (such as
40 years). See marketable title under TInE (2). [Cases:
Limitation ofActions (:::::> 19(1); Vendor and Purchaser
(:::::>231 (1).]
market activity. See MARKET VOLUME.
market approa,h. (1958) A method of appraising real
property, by surveying the market and comparing the
property to similar pieces of property that have been
recently sold, and making appropriate adjustments for
differences between the properties, including location,
size of the property, and the dates of sale. -Also
termed comparative-sales approach; market-compari
son approach; market-data approach; market-compara
bles analysis; comparable-sales approach; comparables
analysis. Cf. COST APPROACH; INCOME APPROACH.
market average. A price level for a specific group of
stocks.
market-comparables analysis. See MARKET APPROACH.
market-comparison approa,h. See MARKET APPROACH.
market ,orrection. See DOWN REVERSAL.
market-data approach. See MARKET APPROACH.
market equity. The percentage ofthe total market value
that a particular company's securities account for, rep
resented by each class ofsecurity. Cf. BOOK EQUITY.
marketing, n. (16c) 1. The act or process of promoting
and selling, leaSing, or licensing products or services.
2. The part of a business concerned with meeting cus
tomers' needs. 3. The area ofstudy concerned with the
promotion and selling ofproducts or services.
marketing contract. See CONTRACT.
marketing covenant. Oil & gas. In a mineral lease, the
implied promise that the lessee will market the produc
tion from the lease within a reasonable time and at a
reasonable price. See REASONABLY-PRUDENT-OPERATOR
STANDARD. [Cases: Mines and Minerals (;=:>78.1(8).]
marketing defect. See DEFECT.
market intermediary. Securities. A person whose
business is to enter into transactions on both sides
of the market. Investment Company Act, 15 USCA
80a-3(c)(2)(B)(i).
market-maker. Securities. One who helps establish a
market for securities by reporting bid-and-asked quo
tations. A market-maker is typically a specialist per
mitted to act as a dealer, a dealer acting in the capacity
of block positioner, or a dealer who, with respect to a
market-making 1058
security, routinely enters quotations in an interdealer
communication system or otherwise and is willing to
buy and sell securities for the dealer's own account.
[Cases: Securities Regulation C:=>53.17(3).]
market-making, n. The practice of establishing prices for
over |
Regulation C:=>53.17(3).]
market-making, n. The practice of establishing prices for
over-the-counter securities by reporting bid-and-asked
quotations. A broker-dealer engaged in this practice,
which is regulated by both the NASD and the SEC, buys
and sells securities as a principal for its own account,
and thus accepts two-way bids (both to buy and to sell).
See BID AND ASKED. [Cases: Securities Regulation ~'--::J
53.17(3).]
market manipulation. See MANIPULATION.
market order. See ORDER (8).
market-out clause. Oil &gas. A contract provision per
mitting a pipeline-purchaser of natural gas to lower
the purchase price if market conditions make it uneco
nomical to continue buying at the contract price, and
permitting the well owner to respond by accepting the
lower price or by rejecting it and canceling the contract.
Market-out clauses often refer to competing fuels
such as fuel oil. -Also termed economic-out clause.
[Cases: Gas C:=> 13(I).J
market overt. See MARKET.
market-participant doctrine. (1983) The principle that,
under the Commerce Clause, a state does not discrimi
nate against interstate commerce by acting as a buyer or
seller in the market, by operating a proprietary enter
prise, or by subsidizing private business . Under the
Dormant Commerce Clause principle, the Commerce
Clause -art.!, 8, cl. 3 of the U.S. Constitution
disallows most state regulation of, or discrimination
against, interstate commerce. But if the state is par
ticipating in the market instead of regulating it, the
Dormant Commerce Clause analysiS does not apply,
and the state activity will generally stand. See Dormant
Commerce Clause under COMMERCE CLAUSE. [Cases:
Commerce
marketplace ofideas. (1949) A forum in which expres
sions of opinion can freely compete for acceptance
without governmental restraint. Although Justice
Oliver Wendell Holmes was the first jurist to discuss
the concept as a metaphor for explaining freedom
of speech, the phrase marketplace of ideas dates in
American caselaw only from 1954.
market portfolio. See PORTFOLIO.
market power. (1915) The ability to reduce output and
raise prices above the competitive level-spedf., above
marginal cost -for a sustained period, and to make
a profit by doing so . In antitrust law, a large amount
of market power may constitute monopoly power. See
MONOPOLIZATION. Cf. MARKET SHARE.
"In economic terms, market power is the ability to raise
prices without a total loss of sales; without market power,
consumers shop around to find a rival offering a better
deal." 54 Am. Jur. 2d Monopolies. Restraints of Trade, and
Unfair Trade Practices 49, at 110 n.87 (1996).
market price. See PRICE. market quotation. See QUOTATION.
market-recovery program. See JOB-TARGETING PRO
GRAM.
market share. (1954) The percentage of the market
for a product that a firm supplies, usu. calculated by
dividing the firm's output by the total market output.
In antitrust law, market share is used to measure a
firm's market power, and ifthe share is high enough
generally 70% or more then the firm may be guilty
ofmonopolization. See MONOPOLIZATION. Cf. MARKET
POWER. [Cases: Antitrust and Trade Regulation C='
553.]
market-share liability. See LIABILITY.
market-share theory. Antitrust.!' A method of deter
mining damages for lost profits by calculati the
impact of the defendant's violation on the
tiff's output or market share. Cf. BEFORE-AND-AFTER
THEORY; YARDSTICK THEORY. [Cases: Antitrust and
Trade Regulation C:=>S53.J 2. Patents. A theory of
lost-profits remedy offered when the patentee and the
infringer share the market with a noninfringing com
petitor. Using this method, the court assumes that the
percentage ofthe market that the patentee holds is the
same as the percentage of the infringer's market that
the patentee would have captured but for the infringe
ment.
market stand-off agreement. Securities. A provision
in a stock-purchase contract in which the stockholder
promises not to sell or otherwise transfer any securities
during a specified period after the corporation makes a
public stock offering. Cf. LOCKUP AGREEMENT.
market structure. The broad organizational characteris
tics ofa particular market, including seller concentra
tion, product differentiation, and barriers to entry.
market trend. See TREND.
market value. See fair market value under VALUE (2).
market value at the well. Oil & gas. The value of oil or
gas at the place where it is sold, minus the reasonable
cost oftransporting it and processing it to make it mar
ketable.
market volume. 1. The total number of shares traded on
one day on a stock exchange. 2. lhe total number of
shares of one stock traded on one dav. -Also termed
market activity. '
Mark Hopkins doctrine. The principle that when an
employee leaves a job because of a labor dispute, any
later employment the employee has must be bona fide
and intended as permanent for the employee to avoid
a labor-dispute disqualification from unemployment
benefits if the employee leaves the later job. Mark
Hopkins, Inc. v. Employment Comm'n, 151 P.2d 229
(Cal. 1944). [Cases: Unemployment Compensation
C:=>172.]
marking estoppel. See ESTOPPEL.
Markman hearing. (1996) Patents. A hearing at which
the court receives evidence and argument concern
ing the construction to be given to terms in a patent
1059
claim at issue. Markman v. Westview Instruments, Inc.,
52 F.3d 967, 984-85 (Fed. Cir. 1995) (en bane), aff'd,
517 U.S. 370, 116 S.Ct.1384 (1996). _ In the namesake
decision, the Federal Circuit Court ofAppeals held that
the construction of patent claims and therefore the
scope ofthe patentee's rights is a question oflaw. In
a Markman hearing, the court interprets the claims
before the question ofinfringement is submitted to the
fact-finder. [Cases: Patents C=314.)
markmoot (mahrk-moot), n. Rist. An early English or
Scottish court that held hearings on a territorial border
(Le., a march or mark) between counties, hundreds, or
countries. Also spelled markmote.
markon. An amount (usu. expressed as a percentage) ini
tially added to a product's cost to obtain the list price.
-Further increases or decreases in price are called
markups or markdowns, respectively.
marksman. 1. A person who signs documents with some
kind of character or symbol instead of writing his or
her name. [Cases: Signatures 2. A highly skilled
shooter.
Marks rule. The doctrine that, when the U.S. Supreme
Court issues a fractured, plurality opinion, the opinion
ofthe justices concurring in the judgment on the nar
rowest grounds -that is, the legal standard with which
a majority of the Court would agree -is considered the
Court's holding. Marks v. United States, 430 U.S. 188,
97 S.Ct. 990 (1977). [Cases: Courts (:::>90(2).]
mark-to-market accounting method. See fair-value
accounting method under ACCOL'NTING METHOD.
mark up, vb. (1868) 1. To increase (the price of goods,
etc.) 2. To revise or amend (a legislative bill, a rule, etc.).
3. To place (a case) on the trial calendar.
markup, n. (1916) 1. An amount added to an item's cost
to determine its selling price. See PROFIT MARGIN. 2.
A session of a congressional committee during which
a bill is revised and put into final form before it is
reported to the appropriate house. [Cases: United States
C'.::>23 (3).]
Markush claim. See PATENT CLAIM.
Markush doctrine (mahr-bsh). Patents. An exception
to the policy against the use of alternative language in
claims, by which in certain claims (esp. those involv
ing chemical components) a claimant can use an alter
native, subgeneric phrase when there is no applicable,
commonly accepted generic expression. -Character
ized by a phrase such as "selected from the group con
Sisting of," the claim includes a group of substances
anyone ofwhich could serve the same function in the
process. The term Markush comes from Dr. Eugene A.
Markush, who was granted a dye-preparation patent in
1923. Ex parte Markush, 1925 Dec. Comm'r Pat. 126.
See MARKL'SH GROUP. [Cases: Patents 101(7).]
"The Patent Office early adopted a policy against use of
alternative language in claims. Thus, a claimant could
not use the specific alternative phrase 'glass or plastic'
but could use a generic phrase (such as 'impervious
transparent material') that would cover effectively the
desired alternatives. The Markush doctrine developed as marriage
an exception .... With chemical compounds there may be
no SUitable phrase to cover the alternatives. Under limited
circumstances a claimant could use an artificial or coined
subgeneric group in the form of 'material selected from
the group consisting of X, Y, and Z.'" 2 Donald S. Chisum,
Patents 8.06[2], at 8-119 to 8-120 (1992).
Markush group. Patents. A limited form of generic claim
that recites an element, states the element is a member
of a group, and names the other group members, any
of which could substitute for the first recited element.
_ All Markush group members must have at least one
common property that is mainly responsible for their
function in the claimed relationship. Although each
material in the group is different, each must be able
to serve the same function. See MARKUSH DOCTRINE.
[Cases: Patents (;:::> 101(7).)
marque (mahrk). Archaic. Reprisal. See LETTERS OF
MARQUE.
marque, law of. Archaic. A reprisal entitling one who
has been wronged and is unable to receive ordinary
justice to take the goods ofthe wrongdoer (if they can
be found within one's own precinct) in satisfaction for
the wrong. See LETTERS OF MARQUE.
marquis (mahr-kwis or mahr-kee). (14c) An English
nobleman below and next in order to a duke. -Also
termed marquess.
marquisate (mahr-kwi-sit or -zit), n. [Law Latin] Rist.
The seigniory ofa marquis.
marriage, n. (Bc) 1. The legal union of a couple as
spouses. -The essentials of a valid marriage are (1)
parties legally capable of contracting to marry, (2)
mutual consent or agreement, and (3) an actual con
tracting in the form prescribed by law. Marriage has
important consequences in many areas ofthe law, such
as torts, criminal law, evidence, debtor-creditor rela
tions, property, and contracts. Also termed matri
mony; conjugal union. [Cases: Marriage (;:::> 1.12.]
"It has frequently been said by courts, and even by Legis
latures, that marriage is a 'civil contract.' But to conclude
from these statements that marriage ... has all, or even
many, of the inCidents of an ordinary private contract,
would be a grave error. In fact, these statements to the
effect that marriage is a 'civil contract' will be found, upon
examination, to have been used only for the purpose of
expressing the idea that marriage, in the American states,
is a civil, and not a religious institution, or that .. , in
some states mutual consent alone without formal celebra
tion is sufficient to constitute a valid marriage known as a
common law marriage, or that, as is true in all states, the
mutual consent of the parties is essential, even in the case
of a ceremonial marriage." Joseph W. Madden, Handbook
of the Law ofPersons and Domestic Relations 1-3, at 2-3
(1931).
attempted marriage. See void marriage.
clandestine marriage (klan-des-tin). l. A marriage
that rests merely on the agreement of the parties.
2. A marriage entered into in a secret way, as one
solemnized by an unauthorized person or without
all required formalities. See Fleet marriage. [Cases:
Marriage (;:::>20(1).]
1060 marriage
common-law marriage. (17c) A marriage that takes
legal effect, without license or ceremony, when two
people capable of marrying live together as husband
and wife, intend to be married, and hold themselves
out to others as a married couple. -The common-law
marriage traces its roots to the English ecclesiastical
courts, which until 1753 recognized a kind ofin formal
marriage known as sponsalia per verba de praesenti,
which was entered into without ceremony. Today a
common-law marriage, which is the full equivalent
of a ceremonial marriage, is authorized in 11 states
and in the District of Columbia. If a common-law
marriage is established in a state that recognizes such
marriages, other states, even those that do not autho
rize common-law marriage, must give full faith and
credit to the marriage. A common-law marriage can
be dissolved only by annulment, divorce, or death.
Also termed consensual marriage; informal marriage.
See common-law husband under HUSBAND; common
law wife under WIFE. See PER VERBA DE FUTURO CUM
COPULA; SPONSALIA PER VERBA DE PRAESENTI. [Cases:
Marriage ~13, 22.]
confidential marriage. In some jurisdictions (such as
California), a marriage between a man and a woman
in which only the two parties and the officiant are
present at the ceremony. - |
ifornia), a marriage between a man and a woman
in which only the two parties and the officiant are
present at the ceremony. -Confidential marriages
are neither witnessed nor recorded in public records.
They are recorded in nonpublic records. Although
rarely performed, they are generally legal. To obtain
a confidential marriage, the parties must each be at
least 18, must be of the opposite sex, and usu. must
have lived together for an extended period. In eccle
siasticallaw, such a marriage is termed an occult
marriage or, if performed in the strictest secrecy, a
marriage ofconscience.
"A few states provide for confidential marriages. This
allows parties to go through all the formalities but have the
records ofthe marriage, including the license, remain con
fidential. ... A key practical effect of confidential marriage
is to allow parties who have been living as husband and
wife in ajurisdiction that does not recognize informal mar
riages to achieve marital status without publicity. However,
it does not relate back to the time when the parties started
holding themselves out as a married couple and thus it can
have consequences in determining the extent of marital
or community property or various other rights." Walter
Wadlington & Raymond C. O'Brien, Family Law in Perspec
tlve 26 (2001).
consensual marriage. Marriage by consent alone,
without any formal process. See common-law
marriage. [Cases: Marriage ~~,18.]
consular marriage. A marriage solemnized in a foreign
country by a consular diplomatic official of the United
States. -Consular marriages are recognized in some
jurisdictions. [Cases: Marriage ~27.1
covenant marriage. (1990) A special type ofmarriage
in which the parties agree to more stringent require
ments for marriage and divorce than are otherwise
imposed by state law for ordinary marriages. -In the
late 1990s, several states (beginning with Louisiana:
see Acts 1997, No. 1380, 5) passed laws providing for covenant marriages. The requirements vary, but most
of these laws require couples who opt for covenant
marriage to undergo premarital counseling. A divorce
will be granted only after the couple has undergone
marital counseling and has been separated for a speci
fied period (usu. at least 18 months). The divorce pre
requisites typically can be waived with proof that a
spouse has committed adultery, been convicted of a
felony, abandoned the family for at least one year, or
physically or sexually abused the other spouse or a
child. Also termed (in slang) high-test marriage.
cross-marriage. A marriage by a brother and sister to
two people who are also brother and sister.
dead marriage. A marriage whose substance has dis
integrated; a marriage that has irretrievably broken
down. [Cases: Divorce~12.]
de facto marriage (di fak-toh). A marriage that, despite
the parties' living as husband and wife, is defective for
some reason. [Cases: Marriage
defunct marriage. A marriage in which both parties,
by their conduct, indicate their intent to no longer be
married. [Cases: Divorce C=12.]
Fleet marriage. Hist. 1. A clandestine ceremonial
marriage performed in the 17th or 18th century in
the Fleet prison in London by a chaplain who had
been imprisoned for debt. 2. A clandestine ceremo
nial marriage performed by an unscrupulous itiner
ant clergymen in the area in London near the Fleet
Prison. -Parliament attempted to stop the practice,
but it was not until the statute of26 George 2, ch. 33,
declaring marriages performed outside public chapels
or churches to be void and punishable as a felony, that
the practice ceased.
fraudulent marriage. A marriage based on a misrep
resentation regarding some issue of fundamental
importance to the innocent party, who relies on the
misrepresentation in the decision to marry. _ The
misrepresentation must concern something of fun
damental importance to a marriage, such as religious
beliefs, the ability to have sexual relations, or the
ability or desire to have children. Cf. sham marriage.
[Cases: Divorce
green-card marriage. Slang. A sham marriage in which
a U.S. citizen marries a foreign citizen for the sale
purpose of allowing the foreign citizen to become
a permanent U.S. resident. -The Marriage Fraud
Amendments were enacted to regulate marriages
entered into for the purpose of circumventing U.S.
immigration laws. 8 USCA 1154 (h), 1255(e). See
sham marriage.
Gretna-Green marriage. A marriage entered into in
a jurisdiction other than where the parties reside to
avoid some legal impediment that exists where they
live; a runaway marriage. -Gretna Green, a Scottish
village close to the English border, served as a conve
nient place for eloping English couples to wed since
in Scots law parties over 16 did not need parental
consent.
1061
"A 'Gretna-Green marriage' was a marriage solemnized in
Scotland by parties who went there to avoid the delay and
formalities required in England .... In the United States,
the term describes marriages celebrated between residents
of a State who go to a place beyond and yet near to the
boundary line of an adjoining State, on account of some
advantage afforded by the law of that State." William C.
Anderson, A Dictionary of Law 496 (1889).
handfast marriage. 1. Hist. A marriage, often lacking
only solemnization by clergy, characterized by the
couple's joining of hands to conclude a marriage
contract. 2. Hist. A betrothal with all the binding
effects of a marriage, including conjugal rights and
cohabitation, followed by a later formal ceremony. 3.
A trial or probationary marriage wherein the couple
agrees to cohabit and behave as spouses for a definite
period, usu. one year, at the end of which they will
mutually decide to separate or go through a perma
nently binding marriage. -The legal status of such a
marriage is unsettled, as many such trial marriages
are initiated with a ritual ceremony including an
exchange of vows before a presiding officer legally
empowered to perform marriages, yet the couple
intends to remain free to end the relationship without
legal proceedings. Cf. marriage in jest; common-law
marriage. 4. A binding form of marriage practiced by
some modern pagan religions. -Unlike in sense 3,
such marriages are entered into with the expectation
of permanent duration. -Also termed (in senses 3
and 4) hand fasting.
high-test marriage. See covenant marriage.
homosexual marriage. See same-sex marriage.
informal marriage. See common-law marriage.
in-marriage. Marriage between relatives; in-breeding.
left-handed marriage. See morganatic marriage.
limited-purpose marriage. A marriage in which the
parties agree to be married only for certain reasons.
An example is a marriage in which the parties agree to
marry so that a child will not be born illegitimate but
agree not to live together or to have any duties toward
each other. Courts have usu. found these marriages to
be binding for all purposes. Cf. sham marriage: green
card-marriage.
marriage by habit and repute. Scots law. An irregu
lar marriage created by cohabitation that implies
a mutual agreement to be married. This type of
marriage is still recognized in Scotland. See Scotch
marriage. [Cases: Marriage (;::;)22.]
marriage in jest. A voidable marriage in which the
parties lack the reqUisite intent to marry.
marriage ofconscience. Eccles. law. See confidential
marriage.
marriage ofconvenience. (ISc) 1. A marriage entered
into for social or financial advantages rather than
out of mutual love. -Also termed rnariage de conv
enance. 2. Loosely, an ill-considered marriage that, at
the time, is convenient for the parties involved.
marriage ofthe left hand. See morganatic marriage. marriage
marriage per verba de futuro subsequente copula.
Scots law. Hist. An irregular marriage created by a
promise to marry in the future followed by an act
of sexual intercourse. -Originally medieval canon
law, this type of marriage was recognized in Scotland
until 1940. See Scotch marriage. [Cases: Marriage<~:~"'")
20(2).]
marriage per verba de praesenti. Scots law. Hist. An
irregular marriage created at the time of a mutual
agreement to be married. Originally medieval
canon law, this type of marriage was recognized in
Scotland until 1940. See Scotch marriage. [Cases:
Marriage C;::20(2).]
mixed marriage. See MISCEGENATION.
morganatic marriage (mor-ga-nat-ik). Hist. A marriage
between a man of superior status to a woman of
inferior status, with the stipulation that the wife and
her children have no claims to the husband's title or
posseSSions. _ By extension, the term later referred to
the marriage of a woman of superior status to a man
of inferior status. The concept is now limited to royal
marriages. -Also termed left-handed marriage;
marriage ofthe left hand; salie marriage.
occult marriage. Eccles. law. See confidential
marriage.
plural marriage. (1862) A marriage in which one
spouse is already married to someone else; a bigamous
or polygamous union; POLYGAMY. [Cases: Bigamy ~
1; Marriage ~-;)11.]
putative marriage (pyoo-ta-tiv). A marriage in which
either the husband or the wife believes in good faith
that the two are married, but for some technical
reason they are not formally married (as when the
ceremonial official was not authorized to perform a
marriage). - A putative marriage is typically treated
as valid to protect the innocent spouse. The concept
of a putative marriage was adopted from the Napo
leonic Code in those states haVing a civil-law tradi
tion, such as California, Louisiana, and Texas. This
type of marriage is also recognized in the Uniform
Marriage and Divorce Act. The legal rule by which
putative marriages exist is sometimes referred to as
the putative-spouse doctrine. Also termed putative
matrimony. [Cases: Marriage (;::::;> 54(1).]
salk marriage. See morganatic marriage.
same-sex marriage. The ceremonial union of two
people of the same sex; a marriage or marriage-like
relationship between two women or two men . The
United States government and most American states
do not recognize same-sex marriages, even iflegally
contracted in other countries such as Canada, so
couples usu. do not acquire the legal status of spouses.
But in some states same-sex couples have success
fully challenged the laws against same-sex marriage
on constitutional grounds. See Goodridge v. Dept. of
Pub. Health, 798 N.E.2d 941 (Mass. 2003). Cf, Baehr
v. Lewin, 852 P.2d 44 (Haw. 1993); Baehr v. Miike, 994
P.2d 566 (Haw. 1999); Baker v. State, 744 A.2d 864
1062 marriage article
(Vt. 1999). -Also termed gay marriage; homosexual
marriage. Cf. CIVIL COMMITMENT (2); CIVIL UNION;
DOMESTIC PARTNERSHIP.
Scotch marriage. Scots law. A marriage by consensual
contract, without the necessity ofa formal ceremony.
Until 1940, Scots law retained the medieval canon
law forms of marriage per verba de praesenti and per
verba de futuro subsequente copula. These promises
constituted irregular but valid marriages. Scots law
still retains the irregular marriage by cohabitation
with habit and repute. No ceremony needs to be
proved but, after the death ofone spouse, the surviv
ing spouse or any child can obtain a court's confir
mation that a marriage existed, based on the general
belief of neighbors, friends, and family. [Cases:
Marriage C=>20(1).]
sham marriage. (18c) A purported marriage in which
all the formal requirements are met or seemingly met,
but in which the parties go through the ceremony
with no intent ofliving together as husband and wife.
Cf. green-card marriage;fraudulent marriage; limited
purpose marriage. [Cases: Aliens, Immigration, and
Citizenship C=>264, 428.]
valid marriage. See MARRIAGE (1).
voidable marriage. (1845) A marriage that is initially
invalid but that remains in effect unless terminated
by court order. For example, a marriage is voidable
ifeither party is underage or otherwise legally incom
petent, or ifone party used fraud, duress, or force to
induce the other party to enter the marriage. The legal
imperfection in such a marriage can be inquired into
only during the lives of both spouses, in a proceed
ing to obtain a judgment declaring it void. A voidable
marriage can be ratified once the impediment to a
legal marriage has been removed. [Cases: Marriage
C=>37, 54(1), 56.]
void marriage. (l7c) A marriage that is invalid from
its inception, that cannot be made valid, and that
can be terminated by either party without obtaining
a divorce or annulment. For example, a marriage
is void if the parties are too closely related or ifeither
party is already married. A void marriage does not
exist, has never existed, and needs no formal act to
be dissolved -although a judicial declaration may
be obtained. -Also termed attempted marriage.
See NULLITY OF MARRIAGE (1). [Cases: Marriage C=>
53-54.]
2. Roman law. A consensual agreement between a man
and a woman to be married. The consent of both
parties and of any paterfamilias was necessary. Other
requirements were the attainment of puberty and
legal capacity (conubium). If either or both withdrew
consent to be married, the marriage ended in divorce;
no specific grounds were necessary. In the Christian
empire, divorce without adequate grounds was penal
ized. 3. MARRIAGE CEREMONY. -marital, adj.
ceremonial marriage. (1876) A wedding that follows
all the statutory requirements and that has |
, adj.
ceremonial marriage. (1876) A wedding that follows
all the statutory requirements and that has been solemnized before a religious or civil official. [Cases:
Marriage C=>23-32.]
civil marriage. (l7c) A wedding ceremony conducted
by an official, such as a judge, or by some other autho
rized person -as distinguished from one solemnized
by a member of the clergy. [Cases: Marriage C=>27.]
double-proxy marriage. A wedding in which both
parties to a marriage are absent but represented
by stand-ins. Only Montana allows this type of
marriage.
proxy marriage. (1924) A wedding in which someone
stands in for an absent bride or groom, as when one
party is stationed overseas in the military. Proxy
marriages are prohibited in most states. [Cases:
Marriage C=>23.]
marriage article. (1831) A premarital stipulation between
spouses who intend to incorporate the stipulation in a
postnuptial agreement. [Cases: Husband and Wife C=>
29.]
marriage bonus. Tax. The difference between the reduced
income-tax liability owed by a married couple filing a
joint income-tax return and the greater amount they
would have owed had they been single and filed indi
vidually. -Also termed singles' penalty. Cf. MARRIAGE
PENALTY.
marriage broker. One who arranges a marriage in
exchange for consideration . A marriage broker may
be subject to criminal liability.
marriage-brokerage contract. An agreement under
which a person, acting for compensation, procures
someone for a marriage. Traditionally, these con
tracts have been void as being against public policy.
[Cases: Contracts C=> 111.]
marriage ceremony. (17c) The religious or civil proceed
ing that solemnizes a marriage. -Sometimes short
ened to marriage. -Also termed wedding.
marriage certificate. (1821) A document that is executed
by the religious or civil official presiding at a marriage
ceremony and filed with a public authority (usu. the
county clerk) as evidence of the marriage. -Also
termed certificate ofmarriage. Cf. MARRIAGE LICENSE.
[Cases: Marriage C=>31.]
marriage contract. See CONTRACT.
marriage license. (l7c) A document, issued by a public
authority, that grants a couple permission to marry. Cf.
MARRIAGE CERTIFICATE. [Cases: Marriage C=>25(2).]
marriage mill. A place that facilitates hasty, often
secret, marriages by requiring few or no legal formali
ties. Marriage-mill unions may be voidable but are
rarely void in the absence of absolute impediments to
marriage.
marriage-notice book. An English registry of marriage
applications and licenses.
marriage penalty. Tax. The difference between the
greater income-tax liability owed by a married couple
filing a joint income-tax return and the lesser amount
1063
they would owe had they been single and filed individu
ally. - A marriage penalty exists whenever a married
couple is treated disadvantageously under a tax code in
comparison with an unmarried couple. Cf. MARRIAGE
BONUS.
marriage portion. See DOWRY.
marriage promise. See PROMISE.
marriage records. Government or church records con
taining information on prospective couples (such as a
woman's maiden name and address) and on wedding
services performed. [Cases: Marriage C=-32.]
marriage settlement. 1. See MARITAL AGREEMENT. 2.
See PRENUPTIAL AGREEMENT.
married woman's separate estate in equity. Hist. At
common law, a trust that a rich family could set up for
a daughter so that she would not lose control ofher own
money and property to her husband. -The daughter
could escape the severe limits of coverture by having
her family establish a separate estate in equity, allowing
her the benefit ofincome that was not controlled by her
husband even if the husband was named as trustee.
See COVERTURE; MARRIED WOMEN'S PROPERTY ACTS.
[Cases: Husband and Wife C=> 110.J
married women's property acts. (sometimes cap.)
Statutes enacted to remove a married woman's legal
disabilities; esp. statutes that abolished the common
law prohibitions against a married woman's contract
ing, suing and being sued, or acquiring, holding, and
conveying property in her own right, free from any
restrictions by her husband. -In addition, these acts
abolished the spousal-unity doctrine. In actual usage,
the term almost always appears in the plural form (acts,
not act), except when referring to a particular statute.
Also termed married women's acts; married woman's
property acts; married woman's acts; emancipation
acts; married womens emancipation acts. See MERGER
DOCTRINE OF HUSBAND AND WIFE; LEGAL-UNITIES
DOCTRINE. [Cases: Husband and WifeC= 1l1.]
"The women's rights movement existed throughout the
nineteenth century. It succeeded in partially reducing the
legal disabilities of married women during the second
half of that century by bringing about the enactment in all
states of Married Women's Property Acts. The purpose of
these Acts was to place married women on an equal footing
with their husbands with respect to contracts, earnings, the
ownership of property and the right to sue or be sued, but
as they were construed by the courts they frequently failed
to accomplish the intended reforms." Homer H. Clark Jr. &
Ann laquer Estin, Domestic Relations,' Cases and Problems
8 (6th ed. 2000).
Marsden motion. A criminal defendant's request that
a court dismiss or replace a court-appointed attorney
on grounds that the attorney is not completely or ade
quately representing the defendant. People v.lvlarsden,
465 P.2d 44 (CaL 1970). [Cases: Criminal Law
1824.]
marshal, n. (13c) 1. A law-enforcement officer with duties
similar to those ofa sheriff. [Cases: Municipal Corpora
tions (::::> 183.] 2. A judicial officer who proVides court martial law
security, executes process, and performs other tasks for
the court. [Cases: Courts (::::>58.) marshalship, n.
United States Marshal. A federal official who carries
out the orders ofa federal court. U.S. Marshals are
employees of the executive branch of government.
[Cases: United States Marshals (::::>29.)
marshal, vb. (I5c) L To arrange or rank in order <the
brief effectively marshaled the appellant's arguments>.
2. To arrange (assets, etc.) according to their liability
or availability for payment ofdebts. 3. To fix the order
of (creditors) according to their priority.
marshaling assets, rule of. See RULE OF MARSHALING
ASSETS.
marshaling doctrine. The principle that, when a senior
creditor has recourse to two or more funds to satisfy
its debt, and a junior creditor has recourse to only one
fund to satisfv its debt, the senior creditor must satisfy
its debt out or'the funds in which the junior creditor ha~
no interest. See RULE OF MARSHALING ASSETS. [Cases:
Debtor and Creditor 13.J
marshaling the evidence. (1892) 1. Arranging all of a
party's evidence in the order that it will be presented
at trial. [Cases: Federal Civil Procedure (;:::::2011; Trial
(::::>59(1).]2. The practice offormulating a jury charge
so that it arranges the evidence to give more credence
to a particular interpretation. [Cases: Federal Civil Pro
cedure (::::>2173.1; Trial C= 204,234(2).]
Marshal ofthe Queen's Bench. Hist. A custodial officer
of the Queen's Bench prison. -The position was abol
ished by the Queen's Prison Act of 1842 (St. 5 & 6 Vict,
i ch.22).'
Marshalsea (mahr-sh~l-see), n. [fro Law Latin marescal
lia) Hist. 1. The court or seat ofthe marshal ofthe royal
household. 2. A debtor's prison in London under the
jurisdiction ofthe Court ofMarshalsea. See COURT OF
MARSHALSEA.
mart. See MARKET (1).
marte suo decurrere (mahr-tee s[yJoo-oh d<:l-k<:lr-;}r-ee).
[Latin] Hist. To run its course by its own force. -In
the civil law, this term was applied to a suit that ran its
course without obstruction.
martial law (mahr-sh;}l). (1933) l. 1he law by which
during wartime the army, instead of civil author
ity, governs the country because ofa perceived need
for military security or public safety. -The military
assumes control purportedly until civil authority can be
restored. 2. A body offirm, strictly enforced rules that
are imposed because of a perception by the country's
rulers that civil government has failed, or might fail, to
function. _ Martial law is usu. imposed when the rulers
foresee an invasion, insurrection, economic collapse,
or other breakdown of the rulers' desired social order.
[Cases: War and National Emergency (::::>31.)
"Martial law is the public law of necessity. Necessity
calls it forth, necessity justifies its exercise, and neces
sity measures the extent and degree to which it may be
employed. That necessity is no formal, artificial, legalistiC
concept but an actual and factual one: it is the necessity of
1064 Martindale-Hubbell Law Directory
taking action to safeguard the state against insurrection,
riot, disorder, or public calamity. What constitutes neces
sity is a question of fact in each case." Frederick B. Wiener,
A Practical Manilal ofMartial Law 16 (1940).
"[Mlartial law is nothing more and nothing less than an
application of the common law doctrine that force, to
whatever degree necessary, may be used to repress illegal
force. Martial law is the public right of self-defense against
a danger threatening the order or the existence of the state.
Where the ordinary civil authorities -the police -are
unable to resist or subdue a disturbance, additional force,
military in nature, may be applied. The extent of military
force used depends in each instance upon the extent of
the disturbance." 'd. at 16-17.
absolute martial law. The carrying on ofgovernment
functions entirely by military agencies, as a result of
which the authority of civil agencies is superseded.
[Cases: War and National Emergency C='31.1
qualified martial law. The carrying on ofgovernment
functions partly by military agencies, as a result of
which the authority of some civil agencies is super
seded. [Cases: War and National Emergency (;::::3l.]
3. The law by which the army in wartime governs
foreign territory that it occupies. 4. Loosely, MILITARY
LAW.
Martindale-Hubbell Law Directory. A series of books,
published annually, containing a roster and ratings
of lawyers and law firms in most cities of the United
States, corporate legal departments, government
lawyers, foreign lawyers, and lawyer-support providers,
as well as a digest of the laws of the states, the District
ofColumbia, and territories ofthe United States, and a
digest of the laws of many foreign jurisdictions, includ
ing Canada and its provinces.
Martinez report. A report that a court may require a pro
se party to file in order to clarify a vague or incompre
hensible complaint. Martinez v. Aaron, 570 F.2d 317
(10th Cir. 1978)_ [Cases: Federal Civil Procedure
2538,
Martinmas. See quarter day under DAY.
Mary Carter agreement. (1972) A contract (usu. a secret
one) by which one or more, but not all, codefendants
settle with the plaintiff and obtain a release, along with
a provision granting them a portion of any recovery
from the nonparticipating codefendants . In a Mary
Carter agreement, the participating codefendants agree
to remain parties to the lawsuit and, if no recovery is
awarded against the nonparticipating codefendants,
to pay the plaintiff a settled amount. Such an agree
ment is void as against public policy in some states but
is valid in others ifdisclosed to the jury. Booth v. Mary
Carter Paint Co., 202 So. 2d 8 (Fla. Dist. Ct. App. 1967).
Cf. GALLAGHER AGREEMENT. [Cases: Compromise and
Settlement
Mary Major. See JANE DOE.
masking, n. In critical legal studies, the act or an instance
of concealing something's true nature <being a crit,
Max contends that the legal system is merely an elabo
rate masking ofsocial injustices>. -mask, vb. mask work. Copyright. A three-dimensional pattern of
metallic insulation or semiconducting material present
or removed from the layers ofa computer chip . Mark
works are protected under the Semiconductor Chip
Protection Act of 1984. 17 USCA 902 et seq. [Cases:
Copyrights and Intellectual Property (;:::: lOA.]
massa (mas-a), n. [Latin] A mass or lump of metal, esp.
ofgold and silver before it is made into a cup or other
useful or ornamental object.
Massachusetts ballot. See BALLOT (4).
Massachusetts trust. See business trust under TRUST
(4).
mass-action theory. The principle that, as long as a labor
union is functioning, it is vicariously liable for the joint
acts ofits members.
mass-appraisal method. A technique for valUing large
areas ofland by studying market data to determine
the price that similar property would sell for, without
engaging in a parcel-by-parcel analysis. [Cases:
Taxation C=2514.]
mass asset. See ASSET.
Massiah rule. (1966) The principle that an attempt
to elicit incriminating statements |
See ASSET.
Massiah rule. (1966) The principle that an attempt
to elicit incriminating statements (usu. not during
a formal interrogation) from a suspect whose right
to counsel has attached but who has not waived that
right violates the Sixth Amendment. Massiah v. United
States, 377 U.S. 201, 84 S.Ct. 1199 (1964). See DELIBER
ATE ELICITATION. [Cases: Criminal Law (;::::412.2(4).]
mass layoff. See LAYOFF.
mass meeting. See MEETING.
mass murder. See MURDER.
mass tort. See TORT.
mast. 1. Military law. A Navy disciplinary proceeding
at which the commanding officer of a unit considers
minor offenses charged against enlisted personneL
The charges may be dismissed, the accused person
may receive a punishment prescribed by military law,
or the matter may be referred to a court-martial. The
proceeding is not officially a trial, and no conviction or
acquittal results. Traditionally, when a ship's captain
diSciplines crew members at sea, the hearing is held and
the diScipline announced (and sometimes carried out)
at the ship's mainmast or at the mast. Depending on
the rank of the presiding officer, it may be also termed
a captain's mast, admiral's mast, or (for an admiral)
flag mast. [Cases: Armed Services (;::::39.]2. On board
a ship, the usual place of assembly for a court hearing,
public sale, etc. On sailing ships, the place is the
mainmast. On all other vessels, the captain designates
a place as the "mast." Cf. (in sense 2) MAST SELLING.
mast, atthe. See MAST (1).
master, n. (bef. 12c) 1. One who has personal author
ity over another's services; specif., a principal who
employs another to perform one or more services and
who controls or has the right to control the physical
conduct of the other in the performance ofthe services;
1065
EMPLOYER <the law of master and servant>. [Cases:
Labor and Employment
"[AJ master is a species of principal, All masters are princi
pals, but all principals are not necessarily masters. A prin
cipal becomes a master only if his control of the agent's
physical conduct is sufficient." William A. Gregory, The Law
ofAgency and Partnership 5 (3d ed. 2001).
2. A parajudicial officer (such as a referee, an auditor, an
examiner, or an assessor) specially appointed to help a
court with its proceedings . A master may take testi
mony, hear and rule on discovery disputes, enter tem
porary orders, and handle other pretrial matters, as well
as computing interest, valuing annuities, investigating
encumbrances on land titles, and the like usu. with
a written report to the court. Fed. R. Civ. P. 53. Also
termed speCial master. [Cases: Federal Civil Procedure
Cr~1871-1908; Reference
special master. (1833) A master appointed to assist the
court with a particular matter or case. [Cases: Federal
Civil Procedure C= 1871-1908; Reference C=>47.]
standing master. (1848) A master appOinted to assist
the court on an ongOing basis. ]
master agreement. Labor law. An agreement between a
union and industry leaders, the terms of which serve
as a model for agreements between the union and indi
vidual companies within the industry.
master and servant. (16c) The relation between two
persons, one of whom (the master) has authority over
the other (the servant), with the power to direct the
time, manner, and place of the services . This rela
tionship is similar to that of principal and agent, but
that terminology applies to employments in which
the employee has some discretion, while the servant
is almost completely under the control of the master.
Also, an agent usu. acts for the principal in business
relations with third parties, while a servant does not.
See master-servant relationship under RELATIONSHIP.
[Cases: Labor and EmploymentC=23.]
Master at Common Law. An officer of an English
superior court of common law, appointed to record
court proceedings, supervise the issuance ofwrits, and
receive and account for fees paid into the court.
Master-General of the Ordnance. See MASTER OF THE
ORDNANCE.
master in chancery. 1. An officer appointed by a court
of equity to assist the court. 2. English law. (usu. cap.)
A senior official or clerk of a court of chancery who
assists the Chancellor in various duties such as inquir
ing into matters referred by the court, examining cases,
taking oaths and affidavits, hearing testimony, and
computing damages . There were many Masters in
Chancery at the same time. The office was abolished
in 1897 and was replaced by the office of Master of the
Supreme Court. -Also termed master ojthe chancery.
See MASTER OF THE SUPREME COURT. [Cases: Equity
(,':::>395.]
Master in Lunacy. Hist. A judicial officer appointed by
the Lord Chancellor to conduct inquiries into the state Master of the Rolls
of mind of people alleged to be lunatics incapable of
handling their own affairs and to ensure in each case
that the lunatic's property is properly managed for his
or her benefit.
master lease. See LEASE.
master limited partnership. See publicly traded partner
ship under PARTNERSHIP.
master of a ship. Maritime law. A commander of a
merchant vessel; a captain of a ship . The master is
responsible for the vessel's navigation and the safety
and care of the crew and cargo. -Also termed ship
master. [Cases; Shipping C=)60.]
Master of Laws. A law degree conferred on those com
pleting graduate-level legal study, beyond the J.D. or
LL.B. Abbr. LL.M. Cf. JURIS DOCTOR; LL.B.; DOCTOR
OF LAWS.
Master of Requests. Hist. A judge of the Court of
Requests.
master ofthe chancery. See MASTER IN CHANCERY.
Master of the Crowu Office. English law. A Supreme
Court officer who is appointed by the Lord ChiefJustice.
Formerly, the Master was the Queen's Coroner and
attorney, who was originally appOinted by the Lord
Chancellor to prosecute criminal cases in the name of
the Crown.
Master of the Faculties. Eccles. law. An officer in the
province of Canterbury who heads the Court of Fac
ulties, grants licenses, and admits or removes notaries
public. -Also termed magister ad Jacultates. See
COURT OF FACULTIES.
Master of the Horse. English law. A peer who as third
officer ofthe royal household, next to the lord steward
and lord chamberlain, attends the sovereign on state
occasions. The official was originally in charge of
the royal stables, but that duty is now entrusted to the
Crown Equerry.
Master ofthe Mint. Hist. A salaried warden who super
vised all activities of the royal mint. The office was
abolished under the Coinage Act of 1870 and replaced
with Master Worker and Warden of Her Majesty's
Royal Mint.
Mastel' of the Ordnance. Hist. Beginning with the
reign of Henry VIII, a superior officer responSible for
the royal artillery and weapons. -The more modern
representative is the Master-General of the Ordnance,
a military officer and member of the Army Council.
Also termed Master-General ofthe Ordnance.
Mastel' ofthe Pells. See CLERK OF THE PELLS.
Master ofthe Rolls. The president ofthe Court of Appeal
in England . Formerly, the Master of the Rolls was an
assistant judge to a court of chancery, responsible for
keeping the rolls and chancery records. In recent times,
the most famous Master of the Rolls was Lord Denning
(who lived from 1899 to 1999).
"Since 1875, the Master of the Rolls has been president
of the Court of Appeal. Until 1958 he had the general
responsibility for the public records (a responsibility then
1066 Master of the Supreme Court
transferred to the lord Chancellor) and is still responsible
for the records of the Chancery of England. He admits
persons as solicitors of the Supreme Court." David M.
Walker, The Oxford Companion to Law 816 (1980).
Master ofthe Supreme Court. An official of the Queen's
Bench and Chancery Divisions of the Supreme Court
who fills the several positions of master in the com
mon-law courts, the Queen's Coroner and Attorney,
the Master of the Crown Office, record and writ clerks,
and associates.
master plan. (1914) Land-use planning. A municipal
plan for housing, industry, and recreation facilities,
including their projected environmental impact. See
PLANNED-UNIT DEVELOPMENT. [Cases: Zoning and
Planning
master policy. See INSURANCE POLICY.
master's draft. Maritime law. A contract for money
loaned to a ship's master to cover necessary disburse
ments, payable from the first freight the ship receives,
and secured by the vessel and freight. See BOTTOMRY
BOND. [Cases: Shipping
master-servant relationship. See RELATIONSHIP.
master--servant rule. See RESPONDEAT SUPERIOR.
master's report. A master's formal report to a court, usu.
containing a recommended decision in a case as well as
findings of fact and conclusions oflaw. [Cases: Federal
Civil Procedure C=> 1896; Reference C=>83-97.]
mast selling. Hist. The practice of selling the goods of a
dead seaman at the mast. See MAST (2).
matched order. See ORDER (8).
matching-acceptance rule. See MIRROR-IMAGE RULE.
matching principle. (1979) Tax. A method for handling
expense deductions, by which the depreciation in a
given year is matched by the associated tax benefit.
mate. (14c) 1. A spouse or other long-term life partner. 2.
A second-in-command officer on a merchant vessel. 3.
A petty officer who assists a warrant officer. 4. A friend
or companion.
materfamilias (may-tar-fa-mil-ee-as), n. [Latin] Roman
law. L The wife of a paterfamilias, or the mistress of
a family. 2. A respectable woman, either married ar
Single.
materia (ma-teer-ee-a), n. [Latin] 1. Materials, esp. for
building, as distinguished from the form given to
something by the exercise oflabar or skill. 2. Matter;
substance.
material, adj. (14c) 1. Of or relating to matter; physical
<material goods>. 2. Having some logical connec
tion with the consequential facts <material evidence>.
[Cases: Criminal Law C=>382; Evidence C=>143.] 3.
Of such a nature that knowledge of the item would
affect a person's decision-making; significant; essen
tial <material alteration of the document>. Cf.
RELEVANT. materiality, n.
material adverse information. See MATERIAL INFOR
MATION. material allegation. See ALLEGATION.
material alteration. See ALTERATION (2).
material breach. See BREACH OF CONTRACT.
material change in circumstances. See CHANGE IN CIR
CUMSTANCES.
material evidence. See EVIDENCE.
material fact. See FACT.
material fallacy. See FALLACY.
material information. Securities. Information that
would be important to a reasonable investor in making
an investment decision. _ In the context of an "effi
cient" market, materiality translates into informa
tion that alters the price of a firm's stock. Securities
Exchange Act of 1934 lO(b), 15 USCA 78j(b); 17
CFR 240.lOb-S. [Cases: Securities Regulation C=>
60.28(11),60.46.]
material adverse information. Securities. Material
information that is likely to make an investment less
attractive.
material issue. See ISSUE (1).
materialman. A person who supplies materials used in
constructing or repairing a structure or vehicle. -Also
termed material supplier. [Cases: Automobiles C--::>373;
Mechanics' Liens C=>82.]
materialman's lien. See mechanic's lien under LIEN.
material misrepresentation. See MISREPRESENTATION.
material representation. See REPRESENTATION (1).
material supplier. See MATERIALMAN.
material term. See TERM (2).
material witness. See WITNESS.
material-witness arrest. See ARREST.
maternal, adj. (ISc) Of, relating to, or coming from one's
mother <maternal property>. Cf. PATERNAL.
maternalline. See LINE.
maternal-line descent. See DESCENT.
maternal-preference presumption. Family law. The
belief that custody ofa child, regardless ofage, should
generally be awarded to the mother in a divorce unless
she is found to be unfit. _ Most jurisdictions no longer
adhere to the maternal-preference presumption. -Also
termed maternal-preference doctrine. Cf. PRIMARY
CAREGIVER DOCTRINE; TENDER-YEARS DOCTRINE.
[Cases: Child Custody (::::24, 458.]
maternal property. See PROPERTY.
materna maternis (m<l-t<lr-na ma-t;Jr-nis). Goods
acquired through the mother descend to those con
nected with her. -The phrase invoked the distinction
between the succession ofconsanguineous half-broth
ers and uterine half-brothers. Cf. PATERNA PATERNIS.
maternity (ma-t<lr-ni-tee). (17c) 1. The state or condition
of being a mother, esp. a biological one; motherhood.
Cf. FILIATION. 2. The section ofa hospital devoted to the
10 |
biological one; motherhood.
Cf. FILIATION. 2. The section ofa hospital devoted to the
1067
care ofmothers and infants during and after childbirth.
3. ATTRIBUTION RIGHT.
maternity presumption. See PRESUMPTION OF MATER
NITY.
matertera (mJ-t<lr-tJf-J), n. [Latin] Roman law. A
maternal aunt.
matertera magna (mJ-lar-tJf-J mag-nJ). [Latin] Roman
law. A great-aunt; the sister ofone's grandmother.
matertera major (mJ-tar-tar-J may-jar). [Latin] Roman
law. A greater aunt; the sister of one's great-grand
mother.
matertera maxima (ma-tar-taf-J maks-J-mJ). [Latin]
Roman law. A great-great-great aunt; the sister of one's
great-great-grandmother. -Also termed abmater
tera.
mathematical-algorithm exception. See ALGORITHM
EXCEPTION.
mathematical evidence. See EVIDENCE.
Mathews v. Eldridge test. (1980) Constitutional law. The
principle for determining whether an administrative
procedure provides due-process protection, byana
lyzing (1) the nature of the private interest that will be
affected by the governmental action, (2) the risk of an
erroneous deprivation through the procedure used, (3)
the probable value of additional or substitute procedural
safeguards, (4) the governmental function involved,
and (5) the administrative burden and expense that
would be created by requiring additional or substitute
procedural safeguards. Mathews v. Eldridge, 424 U.S.
3l9, 96 S.Ct. 893 (l976). [Cases: Constitutional LawC=>
3875,4025.]
matima (mat-i-mJ), n. [Law Latin] Hist. A godmother.
matricide (ma-trJ-sId), n. (l6c) 1. The act ofkilling one's
own mother. 2. One who kills his or her mother.
matricidal, adj.
matricula (mJ-trik-y;}-la), n. [Latin] 1. Roman law. A
register ofpublic officials. 2. Hist. A register or certifi
cate of enrollment in any organized group or society.
matriculate, vb. (l6c) To enroll or register (in a univer
sity, college, etc.) [Cases: Colleges and Universities
9.15.] -matriculation, n.
matrimonial action. See ACTION (4).
matrimonial cohabitation. See COHABITATION.
matrimonial domicile. See DOMICIl.E.
matrimonial home. See matrimonial domicile under
DOMICILE.
matrimonial res. (1893) 1. The marriage estate. 2. The
state ofmarriage; the legal relationship between married
persons, as opposed to the property and support obliga
tions arising from the marriage.
matrimonium (ma-tr;}-moh-nee-Jm), n. [Latin] Roman
law. Marriage. -Also termed nuptiae (n;,p-shee-ee).
matrimonium ipsum (ma-trJ-moh-nee-Jm ip-sJm).
[Latin] Hist. Marriage itself. matter
matrimonium non justum (ma-trJ-moh-nee-Jm non
j;}s-tJm). [Latin] Roman law. A marriage between two
persons one or both of whom do not have the legal
capacity to wed (conubium) . Children resulting from
such a marriage were legitimate but were not consid
ered in polestas.
matrimony, n. (l4c) The ceremony or state of being
married; MARRIAGE (1). [Cases: Marriage 1.]
matrimonial, adj.
matrix (may-triks), n. [Latin] 1. Hist. Mother. 2. Civil
law. The original legal instrument, from which all
copies must be made. 3. A list ofthe parties to a lawsuit,
including the addresses at which pleadings and notices
can be served . A matrix is commonly used to list
the names and addresses ofcreditors and other parties
in a bankruptcy case. Many bankruptcy courts have
specific rules on how to prepare the matrix.
matrix ecclesia (may-triks e-klee-z[h]ee-J). [Latin]
Eccles. law. A mother church; a cathedral church in
relation to parochial churches in the same diocese, or
a parish church in relation to dependent chapels.
matter, n. (Bc) 1. A subject under consideration, esp.
involving a dispute or litigation; CASE (1) <this is the
only matter on the court's docket today>. 2. Something
that is to be tried or proved; an allegation forming the
basis of a claim or defense <the matters raised in the
plaintiff's complaint are not actionable under state
law>.
matter in deed. 1. A matter that can be proved by a
writing under seal. 2. See matter offact.
matter in pais (in pay). A matter of fact that has not
been recorded in writing and that must therefore be
proved by parol evidence.
matter offact. (16c) A matter involving a judicial
inquiry into the truth of alleged facts. Also termed
matter in deed.
matter ofform. A matter concerned only with formali
ties or noncritical characteristics <the objection that
the motion was incorrectly titled related to a matter
of form>. Cf. matter ofsubstance.
matter oflaw. A matter involving a judicial inquiry
into the applicable law.
matter ofrecord. A matter that has been entered on a
judicial or other public record and therefore can be
proved by producing that record.
matter ofsubstance. A matter concerning the merits
or critical elements, rather than mere formalities <the
party objected because the motion was based on a
repealed statute that related to a matter ofsubstance>.
Cf. matter ofform.
new matter. 1. A litigant's claim or defense that goes
beyond the issues raised in the original litigation,
either by raising a new issue with new facts to be
proved or by raiSing a defense that does not impli
cate an element of the original claims. A typical
example of new matter is an affirmative defense. 2.
See NEW MATTER (2).
1068 matter in controversy
special matter. Common-law pleading. Out-of-the
ordinary evidence that a defendant is allowed to
enter, after notice to the plaintiff, under a plea ofthe
general issue.
matter in controversy. See AMOUNT IN CONTROVERSY.
matter of. See 1;>< RE.
matter of course. (17c) Something done as a part of a
routine process or procedure.
mature, vb. (1861) (Of a debt or obligation) to become
due <the bond matures in ten years>. [Cases: Bills and
Notes ~129.] maturity, n. -mature, adj.
matured claim. See CLAIM (3).
mature-minor doctrine. Family law. A rule holding that
an adolescent, though not having reached the age of
majority, may make decisions about his or her health
and welfare ifthe adolescent demonstrates an ability to
articulate reasoned preferences on those matters. _ The
mature-minor doctrine was recognized as constitution
ally protected in medical decisions (abortion rights) in
Planned Parenthood ofCent. Missouri v. Danforth, 428
U.S. 52,96 S.Ct. 2831 (1976). Not all states recognize the
common-law mature-minor doctrine. Cf. PARENTAL
CONSENT STATUTE. [Cases: Abortion and Birth Control
~120.l
maturity date. See date ofmaturity under DATE.
maturity value. The amount that is due and payable on
an obligation's maturity date.
maugre (maw-g~r), prep. Archaic. Despite <the witness
may testify maugre counsel's objection>.
maxim (mak-sim). (16c) A traditional legal principle that
has been frozen into a concise expression. _ Examples
are "possession is nine-tenths ofthe law" and caveat
emptor ("let the buyer beware"). -Also termed legal
maxim.
maximalist retributivism. See RETRIBUTIVISM.
maximum cure. Maritime law. '{he point at which a
seaman who is injured or sick has stabilized, and no
additional medical treatment will improve the seaman's
condition. - A shipowner's obligation to provide main
tenance and cure to a sick or injured seaman usu. con
tinues until the seaman has reached maximum cure.
Farrell v. United States, 336 U.S. 511, 69 S.Ct. 707 (1949);
Vella v. Ford Motor Co., 421 U.S. 1,95 S.Ct. 1381 (1975).
See CURE (2); MAINTENANCE AND CURE. [Cases: Seamen
11(6).]
maximum medical improvement. (1955) The point at
which an injured person's condition stabilizes, and no
further recovery or improvement is expected, even with
additional medical intervention. _ This term is most
often used in the context of a workers' -compensation
claim. An injured employee usu. receives temporary
benefits until reaching maximum medical improve
ment, at which time a determination can be made about
any permanent disability the employee has suffered
and any corresponding benefits the employee should
receive. Abbr. MMI. [Cases: Workers' Compensa
tion C='868.j maximum sentence. See SENTENCE.
may, vb. (bef. 12c) 1. To be permitted to <the plaintiff may
close>. 2. To be a possibility <we may win on appeal>.
Cf. CAN. 3. Loosely, is required to; shall; must <if two
or more defendants are jOintly indicted, any defendant
who so requests may be tried separately>. _ In dozens
ofcases, courts have held may to be synonymous with
shall or must, usu. in an effort to effectuate legislative
intent. [Cases: Statutes
maybem (may-hem), n. (ISc) 1. The crime ofmaliciously
injuring a person's body, esp. to impair or destroy the
victim's capacity for self-defense. _ Modern statutes
usu. treat this as a form of aggravated battery. See
BATTERY. Cf. serious bodily injury under INJURY. [Cases:
Mayhem~1.1
"Mayhem, according to the English common law, is mali
ciously depriving another of the use of such of his members
as may render him less able, in fighting, either to defend
himself or to annoy his adversary. It is a felony." Rollin
M. Perkins & Ronald N. Boyce, Criminal Law 239 (3d ed.
1982).
2. Violent destruction. 3. Rowdy confusion or disrup
tion. -maim (for sense 1), vb.
May it please the court. (17c) An introductory phrase
that lawyers use when first addressing a court, esp.
when presenting oral argument to an appellate court.
mayn (mayn), n. [Law French] Hist. A hand; handwrit
ing.
maynover (md-nOO-Velf or may-nob-velr), n. [Law French]
Hist. A work by hand; something produced by manual
labor.
mayor, n. (14c) An official who is elected or appointed
as the chief executive of a city, town, or other munic
ipality. [Cases: Municipal Corporations 168.]
mayoral (may-dr-~l), adj.
mayoralty (maY-elr-ClI-tee). (I4c) The office or dignity of
a mayor. -Also termed mayorship.
mayor of the staple. Hist. A person appointed to take
recognizances of debt between staple merchants, and
to hear disputes arising between merchants. See STAPLE
(1), (2).
mayor's court. See COURT.
mayorship. See MAYORALTY.
MBDA. abbr. MINORITY BUSINESS DEVELOPMENT
AGENCY.
MBE. See Multistate Bar Examination under BAR EXAM
INATION.
MBO. See management buyout under BUYOUT.
MC. abbr. MEMBER OF CONGRESS.
McCarran Act. A federal law requiring, among other
things, members of the Communist party to register
with the Attorney General and requiring Communist
organizations to provide the government with a list
ofits members. -The Act was passed in 1950, during
the Cold War. Over the years, the U.S. Supreme Court
declared various portions of the Act unconstitutional,
1069
but it was not fully repealed until 1993. See, e.g., United
States v. Spector, 343 U.S. 169, 72 S.Ct. 591 (1952);
Aptheker v. Secretary ofState, 378 U.S. 500, 84 S.Ct.
1659 (1964); United States v. Robel, 389 U.S. 258, 88 S.Ct.
419 (1967). -Also termed McCarran Internal Security
Act; Subversive Activities Control Act of1950.
McCarran-Ferguson Act. Insurance. A federal law
allowing a state to regulate insurance companies doing
business in that state, and also to levy a tax on them. 15
USCA lOll-lOI5.lCases: Insurance ~1100.]
McCarran Internal Security Act. See MCCARRAN ACT.
McClanahan presumption. The presumption that the
states do not have jurisdiction to tax members of a
Native American tribe who live or work on tribal land.
The presumption is not limited to tribal members
who live or work on a formal reservation. Instead, it
includes those who live or work on informal reserva
tions, in dependent tribal communities, and on tribal
allotments. McClanahan v. Arizona Tax Comm' |
reserva
tions, in dependent tribal communities, and on tribal
allotments. McClanahan v. Arizona Tax Comm'n, 411
U.S. 164,93 S.Ct. 1257 (1973). [Cases: Taxation C~
2273,3412,36l2.]
McDonnell Douglas test. Employment law. 'The principle
for applying a shifting burden of proofin employment
discrimination cases, essentially requiring the plain
tiff to come forward with evidence of discrimination
and the defendant to come forward with evidence
showing that the employment action complained of
was taken for nondiscriminatorv reasons. Under
this test, the plaintiff must first establish a prima facie
case of discrimination, as by shOWing that the plain
tiff is a member of a protected group and suffered an
adverse employment action. Ifthe plaintiff satisfies that
burden, then the defendant must articulate a legitimate,
nondiscriminatory reason for the employment action
complained of. If the defendant satisfies that burden,
then the plaintiff must prove that the defendant's stated
reason is just a pretext for discrimination and that dis
crimination was the real reason for the employment
action. AicDonnell Douglas Corp. v. Green, 411 U.S. 792,
93 S.Ct. 1817 (1973). Cf. burden-shifting analysis. [Cases:
Civil Rights e::-~, 1118, 1536.]
mef. Abbr. Oil & gas. One thousand cubic feet, one ofthe
standard units for measuring natural gas.
McNabb-Mallory rule. Criminal procedure. The
doctrine that a confession is inadmissible if obtained
during an unreasonably long detention period between
arrest and a preliminary hearing. Because of the
broader protections afforded under the Miranda rule,
the McNabb-Mallory rule is rarely applied in modern
cases. McNabb v. United States, 318 U.S. 332, 63 S.Ct.
608 (1943); Mallory v. United States, 354 U.S. 449, 77
S.Ct. 1356 (1957). -Often shortened to Mallory rule.
[Cases: Criminal Law <';='519(8).]
McNaghten rules (mik-nawt-,m). (1917) Criminal law.
The doctrine that a person is not criminally responsible
for an act when a mental disability prevented the person
from knowing either (l) the nature and quality of the
act or (2) whether the act was right or wrong. lhe meaning
federal courts and most states have adopted this test
in some form. McNaghten's Case, 8 Eng. Rep. 718 (B.L.
1843). -Also spelled McNaughten rules; M'Naghten
rules; M'Naughten rules. -Also termed right-and
wrong test; right-wrong test. See INSANITY DEFENSE.
[Cases: Criminal Law C:;:>48; Homicide ~817.]
"Four pOints stand out and should be understood whenever
reference to M'Naghten is made other than in regard to
procedure. (l) It applies only in case of 'a defect of reason,
from disease of the mind' and without this the following
do not apply except that 'disease' as so used will be inter
preted to include congenital defect or traumatic injury.
(2) If, because of this 'defect of reason,' the defendant did
not know what he was doing he is not guilty of crime. (3)
Even if the defendant knew what he was doing he is not
guilty of crime if, because of this 'defect of reason; he did
not know he was doing wrong. (4) If the defendant acted
under an insane delUSion, and was not otherwise insane,
his accountability to the criminal law is the same as if the
facts were as they seemed to him to be," Rollin M. Perkins &
Ronald N. Boyce, Criminal Law 959-60 (3d ed. 1982).
McNary comity. lhe principle that a U.S. district court
should not hear a taxpayer's civil-rights challenge to the
administration ofa state's tax system. Fair Assessment
in Real Estate Ass'n v. McNary, 454 U.S. 100, 102 S.Ct.
177 (1981). [Cases: Federal Courts C-~27.1
M.D. abbr. (15c) 1. Middle District, usu. in reference to
U.S. judicial districts. 2. Doctor ofmedicine.
MDA. abbr. MISSILE DEFENSE AGENCY,
MOL. abbr. MULTlDISTRICT LITIGATION.
MOP. abbr. MULTIDISCIPLINARY PRACTICE.
MDV. abbr. MOTION FOR DIRECTED VERDICT.
mean, adj. (l4c) 1. Ofor relating to an intermediate point
between two points or extremes <a mean position>. 2.
Medium in size <a mean height>. 3. (Of a value, etc.)
average <a mean score>. Cf. MEDIAN.
meander line (mee-an-d;tr). (1865) A survey line (not
a boundary line) on a portion ofland, usu. following
the course ofa river or stream. [Cases: Boundaries ~
12.]
mean high tide. See TIDE.
meaning. (14c) The sense ofanything, but esp. ofwords;
that which is conveyed (or intended to be conveyed)
by a written or oral statement or other communica
tive act. The word ordinarily includes a mistaken
but reasonable understanding of a communication.
Cf. AMBIGUITY.
objective meaning. The meaning that would be attrib
uted to an unambiguous document (or portion of a
document) by a disinterested reasonable person who
is familiar with the surrounding circumstances .
A party to a contract is often held to its objective
meaning, which it is considered to have had reason
to know, even if the party subjectively understood
or intended something else. [Cases: Contracts
147(1).]
plain meaning. The meaning attributed to a document
(usu. by a court) by giving the words their ordinary
sense, without referring to extrinsic indications ofthe
author's intent. Also termed ordinary meaning. See
PLAIN-MEANING RULE. [Cases: Contracts C=c 152.]
subjective meaning. The meaning that a party to a
legal document attributes to it when the document
is written, executed, or otherwise adopted. [Cases:
Contracts C=c 170(1).]
mean lower low tide. See TIDE.
mean low tide. See TIDE.
mean reserve. See RESERVE.
means, n. (l4c) 1. Available resources, esp. for the
payment of debt; income. Also termed means of
support. 2. Something that helps to attain an end; an
instrument; a cause.
means-combination daim. See PATENT CLAIM.
means ofsupport. See MEANS (1).
means-plus-fundion clause. Patents. An element in a
patent claim, usu. in a claim for an apparatus patent,
asserting that the claim element is a way to perform a
given function or is a step in the process ofperform
ing a given function . The claim will be interpreted as
including the structure or means stated in the patent
specification and equivalents at the time of interpre
tation or infringement, but not all possible means of
achieving the same function. 35 USCA 112 ~ 6.
Also termed means-plus-function element; means-plus
function claim. See combination patent under PATENT
(3). lCases: Patents (;::::: 101(8).]
mean trading price. See PRICE.
mearstone. See MERESTONE.
measure of damages. (18c) The basis for calculating
damages to be awarded to someone who has suffered
an injury . For example, the measure ofdamages in an
action on a penal bond is compensation for the actual
loss, not exceeding the established penalty. [Cases:
Damages C=c95-126.]
measuring life. (1922) Under the rule against perpetuit
ies, the last beneficiary to die who was alive at the tes
tator's death and who usu. holds a preceding interest.
A measuring life is used to determine whether an
interest will vest under the rule against perpetuities.
See RULE AGAINST PERPETUITIES. Cf. LIFE IN BEING.
[Cases: Perpetuities (;::::4(1).]
measuring money. Hist. An extra duty collected on cloth.
It was abolished during the reign of Henry IV.
mechanical license. See LICENSE.
mechanical rights. Copyright. The right to reproduce
a song in a phonorecord form, such as audiotape or
compact disc . Ihe right is obtained by paying a statu
tory royalty; it is not necessary to obtain the songwrit
er,s express permission. See MECHANICAL ROYALTY. Cf.
PERFORMANCE RIGHTS. [Cases: Copyrights and Intel
lectual Property C=c48.1.]
mechanical royalty. Copyright. The payment to which
a songwriter is entitled each time a mechanical-right
holder reproduces a song on a phonorecord . Mechan
ical-royalty rates are statutory, and payable per song or per minute (whichever is higher). Ifan artist is willing
to pay the statutory rate, the songwriter's permis
sion is not needed before a recording is made. If they
choose to, artists and songwriters may negotiate lower
royalty rates. 37 CFR 255. Also termed statutory
rate. [Cases: Copyrights and Intellectual Property(;:=:
48.1.]
mechanic's lien. See LIEN.
MED. abbr. OFFICE OF MEDICAL SERVICES.
medfee (med-fee). Hist. A bribe or reward; compensation
given for things exchanged of unequal value.
media concludendi (mee-dee-a kon-kloo-den-dr).
[Latin] Hist. Ihe steps ofan argument.
medial, adj. See INTERLOCUTORY.
median, adj. (15c) Located in or related to the precise
midpoint in a range of values or quantities, such that
half of them fall above the midpoint and halfbelow.
Cf. MEAN.
media nox (mee-dee-a noks), n. [Latin] Hist. Midnight.
medianus homo (mee-dee-ay-nas hoh-moh). [Latin]
Hist. A man ofmiddle fortune.
media sententia (mee-dee-a sen-ten-shee-a). [Latin]
Roman law. A middle view.
"The Proculeians held that specification, by changing the
form of the raw material, changed its nature, and replaced
it by something quite new, and that, therefore, the maker
of the new article was the owner of it, and not the person
to whom belonged the material of which it was made.
The Sabinians, on the other hand, were of opinion that
the material retained its original nature. and continued
to subsist, notwithstanding its change of form, and that,
accordingly, the new article belonged to the proprietor of
the material. Neither of these extreme views were adopted
by Justinian, who followed a middle opinion, based on this
distinction: 'If the thing made can be reduced to its former
rude materials, then the owner of the materials is also
conSidered the owner of the thing made; but if the thing
cannot be so reduced, then he who made it is the owner
of it.' Uust. Inst. B. 2, T. I, 25.)" John Trayner, Trayner's
Latin Maxims 349 (4th ed. 1894).
mediate datum (mee-dee-ay-tee day-tam). [Latin] An
intermediate fact whose existence implies the existence
of ultimate facts.
mediate descent. See DESCENT.
mediated settlement agreement. See SETTLEMENT (2).
mediate evidence. See secondary evidence under
EVIDENCE.
mediate possession. See POSSESSION.
mediate powers (mee-dee-it). (1820) Subordinate powers
incidental to primary powers, esp. as given by a prin
cipal to an agent; powers necessary to accomplish the
principal task <adjusting debt is a mediate power to
collecting debt>. Cf. PRIMARY POWERS.
mediate testimony. See secondary evidence under
EVIDENCE.
mediation (mee-dee-ay-shan), n. (14c) 1. A method of
nonbinding dispute resolution involving a neutral third
party who tries to help the disputing parties reach a
mutually agreeable solution; CONCILIATION. -Also
termed case evaluation;facilitated negotiation. Cf. COL
LABORATIVE LAW; COOPERATIVE LAW. [Cases: Alterna
tive Dispute Resolution (;::::>441.]2. Int'llaw. A process
whereby a neutral country helps other countries peace
fully resolve disputes between them. Cf. ARBITRA
TION. -mediate (mee-dee-ayt), vb. -mediatory
(mee-dee-<l-tor-ee), adj.
'The distinction between mediation and conciliation is
widely debated among those interested in ADR, arbitration,
and international diplomacy. Some suggest that concili
ation is 'a nonbinding arbitration,' whereas mediation is
merely 'assisted negotiation.' Others put it this way: con
ciliation involves a third party's trying to bring together
disputing parties to help them reconcile their differences,
whereas mediation goes further by allowing the third party
to suggest terms on which the dispute might be resolved.
Still others reject these attempts at differentiation and
contend that there is no consensus about what the two
words mean that they are generally interchangeable.
Though a distinction would be convenient, those who
argue that usage indicates a broad synonymy are most
accurate." Bryan A. Garner, A Dictionary of Modern Legal
Usage 554 (2d ed. 1995).
Mediation and Conciliation Service. A federal agency
that tries to prevent the interruption of commerce
resulting from labor disputes, by assisting parties in
settling their disputes through mediation and concili
ation. -The agency can intervene on its own motion or
on the motion ofa party to the dispute. -Also termed
Federal Mediation and |
can intervene on its own motion or
on the motion ofa party to the dispute. -Also termed
Federal Mediation and Conciliation Service. 29 USCA
172, 173.
mediator (mee-dee-ay-t<lr), n. (14c) A neutral person
who tries to help disputing parties reach an agreement.
Cf. ARBITRATOR. [Cases: Alternative Dispute Resolu
tion (';:::>470.]
mediators of questions. Hist. Six persons authorized
by 27 Edw. 3, St. 2, ch. 24 to settle disputes between
merchants.
Medicaid. (1966) A cooperative federal-state program
that pays for medical expenses for qualifying indi
viduals who cannot afford private medical services. _
The program is authorized under the Social Security
Act. -Also termed Medical Assistance; (in California)
MediCal. Cf. MEDICARE. [Cases: Health C--=>460-512.]
Medicaid-qualifying trust. See TRUST.
MediCal. See MEDICAID.
Medical Assistance. See MEDICAID.
medical directive. See ADVANCE DIRECTIVE (2).
medical-emergency exception. (1975) Criminal law. The
principle that a police officer does not need a warrant to
enter a person's home ifthe entrance is made to render
aid to someone whom the officer reasonably believes
to be in need ofimmediate assistance. [Cases: Searches
and Seizures
medical evidence. See EVIDENCE.
medical examiner. (1820) A public official who inves
tigates deaths, conducts autopsies, and helps the
state prosecute homicide cases. _ Medical examiners
have replaced coroners in many states. -Sometimes shortened to examiner. See CORONER. [Cases: Coroners
medical expense. See EXPENSE.
medical-expense reimbursement plan. See EMPLOYEE
BENEFIT PLAN.
medical jurisprudence. See FORENSIC MEDICINE.
medical lien. See healthcare lien under LIEN.
medical malpractice. See MALPRACTICE.
medical neglect. See NEGLECT.
medical probability. See REASONABLE MEDICAL PROB
ABILITY.
medicals. See medical expense (2) under EXPENSE.
Medicare. (1953) A federal program established under
the Social Security Act -that provides health insur
ance for the elderly and the disabled. Cf. MEDICAID;
MEDIGAP INSURANCE. [Cases: Health (;::::>520-554.]
"The Medicare Program is really three programs, Parts
A, B, and C. Part A, the Hospital Insurance program,
covers inpatient hospital, skilled nurSing, home health,
and hospice services .... Part B (Supplemental Medical
Insurance) benefits help pay for physician's services, outpa
tient hospital services, renal dialysis, speech and physical
therapy, ambulatory surgery, home health services, durable
medical equipment, rural health clinic services, compre
hensive outpatient rehabilitation facility services, and
some diagnostic tests .... Part C, the Medicare + Choice
managed care program, was established by the Balanced
Budget Act of 1997. Under the Medicare + Choice program,
Medicare contracts with a wide variety of prepaid health
plans on a risk basis to provide care to its beneficiaries."
Barry R. Furrow et aI., Health Law 11-1, at 538 (2d ed.
2000).
medicolegal (med-i-koh-Iee-gdl), adj. (1835) Involving
the application ofmedical science to law <the coroner's
medicolegal functions>. See FORENSIC MEDICINE.
medietas linguae (mi-dl-<l-tas ling-gwee), n. [Law Latin]
Hist. Half-tongue. -The term was applied to a jury
equally divided between natives and aliens. See DE
MEDIETATE LINGUAE.
mediety. See MOIETY (1).
medigap insurance. (1975) Slang. A private insurance
policy for Medicare patients to cover the costs not
covered by Medicare. Cf. MEDICARE.
medio. See DE MEDIO.
medio tempore (mee-dee-oh tem-pa-ree). [Latin] Hist.
In the meantime.
meditatio fugae (med-i-tay-shee-oh fyoo-jee). [Latin]
Scots law. The intention of absconding.
"When a creditor is in circumstances to make oath or affir
mation that his debtor, whether native or foreigner, is in
meditatione fugae, in order to avoid the payment of his
debt, or where he has reasonable ground for apprehend
ing that the debtor has such an intention, it is competent
for the creditor to apply to a magistrate, who, on inquir
ing into the circumstances, and finding reason to believe
that the creditor's application is well founded, will grant
a warrant for apprehending the debtor for examination;
and may afterwards grant warrant to imprison him until
he find caution judicio sisti." William Bell, Bell's Dictionary
and Digest of the Law ofScotland 711-12 (George Watson
ed., 7th ed. 1890).
1072 medium concludendi
medium concludendi (mee-dee-am kon-kloo-den-dI).
[Law Latin] Hist. The ground of action; the cause of
action.
mediumfilum. Seefilum aquae under FILUM.
medium impedimentum (mee-dee-dm im-ped-a-men
tam). [Law Latin "a mid-impediment"] Hist. An inter
vening circumstance that prevents a second event from
occurring as a result ofthe first one.
medium ofexchange. (18c) Anything generally accepted
as payment in a transaction and recognized as a
standard of value <money is a medium of exchange>.
Cf. EXCHANGE (2); CURRENCY; LEGAL TENDER. [Cases:
Payment
medium tempus (mee-dee-am tem-pas). [Latin "inter
mediate period"] Hist. See mesne profits under PROFIT
(1).
medium work. See WORK (1).
medletum (med-Iee-tdm), n. [Law Latin fro French mesler
"to mingle"] Hist. 1. A mixing together ofsomething. 2.
An affray or sudden encounter; a melee. 3. Interference
in a business matter.
medley (med-Iee). An affray; sudden or casual fighting.
Cf. CHANCE-MEDLEY.
med. mal. See medical malpractice under MALPRAC
TICE.
meer dreit (meer drayt or dreet). See MERE RIGHT.
meeting, n. (14c) Parliamentary law. The gathering of
people to discuss or act on matters in which they have
a common interest; esp. the convening ofa deliberative
assemblv to transact business. - A deliberative assem
bly's me~tingbegins with a call to order and continues
until the assembly adjourns. See call to order under
CALL (1); ADJOURN (2). Cf. SESSION. -meet, vb.
"The distinction should be noted between the assembly
(that is, the body of people who assemble) and the meeting
(which is the event of their being assembled to transact
business)." Henry M. Robert, Robert's Rules ofOrder Newly
Revised 1, at 2 (10th ed. 2000).
adjourned meeting. 1. See continued meeting. 2. A
meeting that has adjourned. -These two senses are
opposite in meaning, so the term "continued meeting"
is preferable for sense 1.
annual meeting. A yearly meeting to elect or install
officers or directors and to conduct other routine
organizational business. -An organization's govern
ing documents usu. specify the time and place ofsuch
a meeting. [Cases: Corporations C=>193.1
business meeting. A formal meeting called for consid
ering business, as opposed to a purely educational or
social event. - A business meeting may fall within a
program that also includes social and informational
events. See PROGRAM (1).
called meeting. See special meeting.
continued meeting. A meeting that will be or has been
resumed after a recess (or a so-called adjournment,
which may last for several days but is still techni
cally a recess, since it does not end the meeting). _ A continued meeting is technically not an "adjourned
meeting," and an "adjourned meeting" may also mean
a meeting that has adjourned, so the term "contin
ued meeting" is preferable. -Also loosely termed
adjourned meeting. See RECESS (2).
creditors' meeting. Bankruptcy. The first meeting
of a debtor's creditors and equity security holders,
presided over by the u.s. Trustee and at which a bank
ruptcy trustee may be elected and the debtor may be
examined under oath. 11 USCA 341. Also termed
meeting ofcreditors; 341 meeting;first meeting ofcredi
tors. [Cases: BankruptcyC=>3024.j
mass meeting. A meeting of an unorganized body
called to discuss a particular issue or to organize for
a particular purpose and usu. open to anyone inter
ested in that issue or purpose.
organizational meeting. 1. A mass meeting that estab
lishes a permanent or ongoing organization. 2. A
meeting that begins an ongoing organization's pro
ceedings under its regular order, such as adopting
governing documents and electing usu. fol
lOWing a mass meeting and an interval when the orga
nization operates under provisional officers while its
governing documents are drafted. -Ifthe organiza
tional meeting is for a corporation and the articles of
incorporation name the initial directors, the directors
hold the meeting. Otherwise, the incorporator holds
the meeting. [Cases: Corporations <.''';:::'24.]3. The first
meeting after a dissolution, at which a newly recon
stituted deliberative assembly such as a legislative
body or a convention whose members are assuming
the seats to which they have been elected or re-elected
for a new term -elects officers, adopts rules, and
otherwise organizes for the new session.
regular meeting. A periodic meeting held at a time set
in an organization's governing documents or under
a standing rule or schedule that the deliberative
assembly has adopted. -Also termed stated meeting.
Cf. special meeting.
special meeting. A meeting that is not a regular
meeting; a meeting called for a particular purpose,
usu. between regular meetings. -Also termed called
meeting. Cf. regular meeting. [Cases: Corporations
C=> 194,298(3).]
stated meeting. See regular meeting.
341 meeting. See creditors' meeting.
meeting-competition defense. Antitrust. A defense to a
charge of price discrimination whereby the defendant
shows that the lower price was a good-faith attempt
to match what it believed to be a competitor's equally
low offer.
meeting of creditors. See creditors' meeting under
MEETING.
meeting of the minds. (1830) Contracts. Actual
assent by both parties to the formation of a contract,
meaning that they agree on the same terms, condi
tions, and subject matter. _ This was required under
1073
the traditional subjective theory ofassent, but modern
contract doctrine requires only objective manifesta
tions of assent. -Also termed mutuality ofassent;
aggregatio mentium; assensio mentium. See mutual
assent. under ASSENT. [Cases: Contracts
megalopolis (meg-d-Iop-d-lis). A heavily populated, con
tinuous urban area that is one vast city or composed of
several cities and towns.
Megan's law (meg-dnz or may-gdnz). (1994) A statute that
requires sex offenders who are released from prison to
register with a local board and that provides the means
to disseminate information about the registrants to the
community in which they dwell. -Although many of
these statutes were enacted in the late 19805, they took
their popular name from Megan Kanka of New Jersey,
a seven-year-old who in 1994 was raped and murdered
by a twice-convicted sex offender who lived across
the street from her house. All states have these laws,
but only some require community notification (as by
publishing offenders' pictures in local newspapers);
in others, people must call a state hotline or submit
names of persons they suspect. The federal version of
Megan's law may be found at 42 USCA 1407l. -Also
termed registration and community-notification law;
community-notification law. Cf. JACOB WETTER LING
CRIMES AGAINST CHILDREN AND SEXUALLY VIOLENT
OFFENDER REGISTRATION ACT. [Cases: Mental Health
C=-'452,469.]
meigne (mayn), n. [Law French] Hist. See MEINY.
meindre age (min-ddT ayj or azh), n. [Law French] Hist.
Lesser age; minority. See MINORITY (1).
meiny (may-nee), n. [Law Frenc.h] Hist. A family, esp.
a royal household. -Also spelled meinej meinie;
meigne.
melior (mee-Iee-dr), adj. [Latin] Better; the better, as in
melior res ("the better thing or chattel").
meliorations (meel-ya-ray-shdnz). 1. Scots law. Improve
ments other than repairs made to an estate by
a tenant or liferenter. -The cost of meliorations is
not recoverable from the landlord or fiar. 2. Lasting
improvements.
melioribus damnis. See DE MELIORIBUS DAMNIS.
melius inquirendum (mee-lee-ds in-kwd-ren-ddm), n.
[Law Latin "to be better inquired into"] Hist. A writ
ordering the escheator to investigate a matter further,
as by inquiring who is the next heir ofa party who died
seised oflands.
Melson formula. Family law. A method of calculating
a noncustodial parent's child-support obligation to
ensure that (1) neither parent falls below the |
method of calculating
a noncustodial parent's child-support obligation to
ensure that (1) neither parent falls below the poverty
level in meeting child-support obligations, and (2)
a child of a wealthier noncustodial parent shares in
that parent's higher standard ofliving. _ Named for
Judge Elwood F. Melson of Delaware Family Court,
the formula has been adopted in several states, such as
Delaware, Hawaii, Montana, and West Virginia. The
formula works as follows. A self-support reserve is first members' scheme of arrangement
deducted from the parent-obligor's net income. Next,
a primary support amount per child is calculated at
an established subsistence level, added to actual work
related child-care expenses, and allocated between
the parents. After deducting the support obligor's
self-support reserve and pro rata share of the child's
adjusted primary support amount, a percentage of the
obligor's remaining income is allocated to additional
child support as a cost-of-living adjustment. Total child
support is determined by adding together the noncus
todial parent's share of primary support and the stan
dard-of-living allowance. [Cases: Child Support C=:
89,90, 146.]
member. (l4c) 1. Parliamentary law. One of the individu
als of whom an organization or a deliberative assembly
consists, and who enjoys the full rights ofparticipating
in the organization -including the rights of making,
debating, and voting on motions -except to the extent
that the organization reserves those rights to certain
classes of membership.
charter member. A member who was a member when
the charter was granted or adopted; a founder.
full member. See voting member.
informational member. See norlvoting member.
limited member. See nonvoting member.
member ex officio. A member who serves (on a board or
committee) by virtue of holding an office, and whose
membership will therefore pass with the office to his
or her successor. -Also termed ex officio member.
See EX OFFICIO.
nonvoting member. A member whose rights do not
include the right of voting on the organization's or
assembly's business. Also termed informational
member.
voting member. A fully enfranchised member, as dis
tinguished from a nonvoting member. -Also termed
full member.
2. Military law. A person assigned to a court-martial
to determine guilt and punishment. [Cases: Military
Justice (;:J870-871, 879.J
member bank. See BANK.
member firm. Securities. A brokerage firm with at least
one director, officer, or general partner who holds a seat
in an organized securities exchange. -Also termed
(if organized as a corporation) member corporation.
[Cases: Exchanges C=:5-9.]
member ofa crew. See SEAMAN.
member of Congress. An elected official who sits in
either the U.S. Senate or the House of Representatives.
-lbe official may be appointed to fill an unexpired
term. -Abbr. Me. [Cases: United States C=:7.1.]
member ofParliament. A person with the right to sit in
one of the two houses of Parliament. Abbr. MP.
membership committee. See COMMITTEE.
members' scheme of arrangement. See SCHEME OF
ARRANGEMENT.
1074 membrana
membrana (mem-bray-na), n. [Latin "parchment"]
Hist. 1. A skin of parchment. 2. A notebook of leaves
ofparchment. _ The English rolls were made of several
types of parchment and the term membrana was used
in referring to them.
membrum (mem-br;lm), n. [Latin "limb"] A division of
something, esp. a slip or small piece ofland.
memdispo (mem-dis-poh). Slang. See memorandum
opinion under OPINION (1).
memorandum. (15c) 1. An informal written note or
record outlining the terms ofa transaction or contract
<the memorandum indicated the developer's intent to
buy the property at its appraised value>. -To satisfy
the statute of frauds, a memorandum can be written
in any form, but it must (1) identify the parties to the
contract, (2) indicate the contract's subject matter, (3)
contain the contract's essential terms, and (4) contain
the signature of the party against whom enforcement
is sought. Also termed memorial; note. See STATUTE
OF FRAUDS. [Cases: Contracts C~32; Frauds, Statute
Ofe:.;:103, 105.J 2. An informal written communica
tion used esp. in offices <the firm sent a memorandum
reminding all lawyers to turn in their timesheets>.
Often shortened to memo. 3. A party's written state
ment of its legal arguments presented to the court,
usu. in the form of a brief <memorandum oflaw>. PI.
memoranda, memorandums.
analytical memorandum. See research memoran
dum.
closed memorandum. A memorandum prepared by a
law student using only given facts and the materials,
usu. a collection ofcases, in a packet provided to the
student. Also termed closed memo; closed-universe
memo.
open memorandum. A memorandum prepared by a
law student based on a given set of facts and using
any available resources for research. Also termed
open memo.
persuasive memorandum. A memorandum written
to sway the reader to accept the writer's position on
a stated problem.
research memorandum. A memorandum whose
purpose is analyze a legal issue and inform the reader
about possible approaches and outcomes. -This type
of memorandum is usu. an in-house document.
Also termed analytical memorandum.
memorandum articles. Marine insurance. Goods
described in the memorandum clause. See MEMORAN
DUM CLAUSE. [Cases: Insurance 2241.]
memorandum check. See CHECK.
memorandum clause. A marine-insurance clause pro
tecting underwriters from liability for injury to goods
that are particularly perishable, or for minor damages.
[Cases: Insurance ~2235, 2241.]
"This clause was first introduced into the English [marine
insurance) policies about the year 1749. Before that time
the insurer was liable for every injury. however small, that
happened to the thing insured.... The memorandum clause ... usually declares that the enumerated articles,
and any other articles that are perishable in their own
nature, shall be free from average under a given rate,
unless general, or the ship be stranded. In consequence of
this exception, all small partial losses, however inconsider
able, are to be borne by a general average, provided they
were incurred in a case proper for such an average .. , ,"
3 James Kent, Commentaries on American Law *294-95
(George Comstock ed., 11th ed. 1866).
memorandum decision. See memorandum opinion
under OPINION (1).
memorandum disposition. See memorandum opinion
under OPINION (1).
memorandum in error. A document alleging a factual
error, usu. accompanied by an affidavit of proof.
memorandum of alteration. English law. A patentee's
disclaimer of certain rights such as rights to part
of an invention that is not new and useful -to avoid
losing the whole patent. _ Until the mid-19th century,
ifa single patent was granted for two inventions, one of
which was not new and useful, the entire patent would
be defective.
memorandum of associatiou. English law. A legal
document setting up a corporation -either with or
without limited liability and including the com
pany's name, purpose, and duration. See ARTICLES OF
INCORPORATION.
memorandum of intent. See LETTER OF INTENT.
memorandum of understanding. See LETTER OF
INTENT. -Abbr. MOU.
memorandum opinion. See OPINION (1).
memorandum sale. See SALE.
memorial, n. (l7e) 1. An abstract of a legal record, esp.
a deed; MEMORANDUM (1). [Cases: Records 2. A
written statement of facts presented to a legislature or
executive as a petition.
memoriter (m;l-mor-;l-t;:}r), adv. [Latin "with an accurate
memory"] From memory; by recollection. -Memoriter
proofofa written instrument is furnished by the recol
lection of a witness who knew the instrument.
menacing, n. (14c) An attempt to commit common-law
assault. _ The term is used esp. in jurisdictions that
have defined assault to include battery. See ASSAULT.
[Cases: Assault and Battery C=>61; Extortion and
Threats
mendacity (men-das-a-tee), n. (16c) 1. Ihe quality of
being untruthful. 2. A lie; falsehood. mendacious
(men-day-shds), adj.
mendicatorie (men-di-ka-tor-ee-ee). [Law Latin] Hist.
As a supplicant or beggar.
mend-the-hold doctrine. The principle that a non
performing party's defense in a breach-of-contract
action must be raised before the close of evidence. - A
minority ofcourts limit a defendant to the first defense
raised after litigation begins, unless the defendant can
show a good-faith basis for a new defense. Most courts
allow the defendant to raise several defenses as long as
1075 mera facta quae in meris faciendi finibus consistunt
each defense is based on the reason given for nonper
formance when the breach occurred. The term comes
from 19-century wrestling jargon, "mend the hold"
meaning "get a better grip on your opponent." [Cases:
Estoppel (;=>68(2).]
men of straw. Hist. False witnesses who wandered
around courts and were paid to give untrue testimony.
_ They stuffed straw into their shoes so that advocates
could recognize them. See STRAW MAN (4).
mens (menz), n. [Latin) Mind; intention; wilL
mensa. See MANAGIUM.
mensa et thoro (men-sd et thor-oh). [Latin] Bed and
board. See A MENSA ET THORO; divorce a mensa et thoro
under DIVORCE.
mensalia (men-say-Iee-d), n. [fro Latin mensa "a table"]
Parsonages; spiritual livings. -Also termed mensal
benefices.
mensis (men-sis), n. [Latin] Roman hw. A month.
mens legis (menz lee-jis). [Latin "the mind of the law"]
The spirit or purpose ofa law.
mens legislatoris (menz lej-is-Id-tor-is). [Latin "the
intention ofthe lawmaker"] Legislative intent.
mensor (men-sor), n. [fro Latin metiri "to measure"]
Roman law. A measurer ofland; a surveyor.
mens rea (menz ree-d). [Law Latin "guilty mind"] (1861)
The state ofmind that the prosecution, to secure a con
viction, must prove that a defendant had when commit
ting a crime; criminal intent or recklessness <the mens
rea for theft is the intent to deprive the rightful owner of
the property>. -Mens rea is the second oftwo essential
elements ofevery crime at common law, the other being
the actus reus. Also termed mental element; criminal
intent; guilty mind. PI. mentes reae (men-teez ree-ee).
Cf. ACTUS REUS. [Cases: Criminal Law C='20.]
"There are only two states of mind which constitute mens
rea, and they are intention, and recklessness." J.w. Cecil
Turner, Kenny's Outlines of Criminal Law 29-30 06th ed.
1952).
"Most English lawyers would however now agree with Sir
James Fitzjames Stephen that the expression mens rea is
unfortunate, though too firmly established to be expelled,
just because it misleadingly suggests that, in general,
moral culpability is essential to a crime, and they would
assent to the criticism expressed by a later judge that the
true translation of mens rea is 'an intention to do the act
which is made penal by statute or by the common law:
[Allard V. Selfridge, (1925) 1 K.B. at 137 (per Shearman, J)]."
H.L.A. Hart, "Legal Responsibility and Excuses," in Punish
ment and Responsibility 28, 36 (1968).
"Some years ago the mens-rea doctrine was criticized on
the ground that the Latin phrase is 'misleading.' If the
words 'mens rea' were to be regarded as selfexplanatory
they would be open to this objection, but they are to be
considered merely as a convenient label which may be
attached to any psychical fact sufficient for criminal guilt
(in connection with socially harmful conduct). This includes
a field too complex for any brief self-explanatory phrase,
and since it is important to have some sort of dialectic
shorthand to express the idea, this time honored label will
do as well as any." Rollin M. Perkins & Ronald N. Boyce,
Criminal Law 826-27 (3d ed. 1982). mensularius (men-sd-lair-ee-ds), n. [fro Latin mensa
"a table"] Roman law. A dealer in money; a money
changer; a banker.
mensura (men-s[y]oor-d), n. [Latin] Hist. A measure.
mensura domini regis (men-s[y]oor-d dom-d-llI ree-jis).
[Law Latin "the measure of our lord the king"] Hist.
The standard weights and measures established under
Richard I, in his Parliament at Westminster in 1197.
"Thus, under king Richard I, in his parliament holden at
Westminster, A.D. 1197, it was ordained that there shall
be only one weight and one measure throughout the
kingdom, and that the custody of the assise or standard
of weights and measures shall be committed to certain
persons in every city and borough .... In king John's time
this ordinance of king Richard was |
measures shall be committed to certain
persons in every city and borough .... In king John's time
this ordinance of king Richard was frequently dispensed
with for money which occasioned a provision to be made
for enforCing it .... These original standards were called
pondus regis, and mensura domini regis; and are directed
by a variety of subsequent statutes to be kept in the exche
quer, and all weights and measures to be made conform
able thereto:' 1 William Blackstone, Commentaries on the
Laws ofEngland 265-66 (1765).
mental abuse. See emotional abuse under ABUSE.
mental anguish. See EMOTIONAL DISTRESS.
mental capacity. See CAPACITY (3).
mental cruelty. See CRUELTY.
mental distress. See EMOTIONAL DISTRESS.
mental element. See MENS REA.
mental evaluation. 1. See INDEPENDENT MENTAL EVALU
ATION. 2. See PSYCHIATRIC EXAMINATION.
mental examination. See PSYCHIATRIC EXAMINATION.
mental illness. (1847) 1. A disorder in thought or mood
so substantial that it impairs judgment, behavior,
perceptions of reality, or the ability to cope with the
ordinary demands oflife. [Cases: Mental Health
3.] 2. Mental disease that is severe enough to necessi
tate care and treatment for the afflicted person's own
welfare or the welfare ofothers in the community.
mental incompetence. See INCOMPETENCY.
mental-process privilege. See DELIBERATIVE-PROCESS
PRIVILEGE.
mental reservation. (17c) One party's silent understand
ing or exception to the meaning ofa contractual provi
sion. [Cases: Contracts C=,14,15.]
mental shock. See SHOCK.
mental suffering. See EMOTIONAL DISTRESS.
mente captus (men-tee kap-tds). [Latin "captured in
mind"] Persons who are habitually insane.
mentes reae (men-teez ree-ee). pl. MENS REA.
mentiri (men-tI-n). vb. [Latin] To lie.
mentition (men-tish-dn), n. [fro Latin mentitio "lying"]
(17c) The act oflying.
mentor judge. See JUDGE.
MEPA. abbr. MULTIETHNIC-PLACEMENT ACT OF 1994.
merafacta quae in meris faciendi finibus consistunt
(meer-;l fak-td kwee in meer-is fay-shee~en-dI fin-d
bas k;m-sis-tmt). [Latin] Hist. Mere acts consisting in
bare performance.
mera noctis (meer-a nok-tis), n. [Latin "middle of the
night"] Midnight.
mercantile (mar-kan-teel or -tIl or -til), adj. (17c) Ofor
relating to merchants or trading; commercial <the mer
cantile <""to>,.,.,,>
mercantile agent. See AGENT (2).
mercantile law. See COMMERCIAL LAW (1).
Mercantile Law Amendment Acts. The Mercantile Law
Amendment Act of 1856 (19 & 20 Vict., chs. 60, 97)
and the Mercantile Law Amendment Act (Scotland) of
1856, passed primarily to reconcile parts ofthe mercan
tile laws of England, Scotland, and Ireland.
mercantile paper. See commercial paper (1) under
PAPER.
mercative (mar-kay-tiv), adj. [fro Latin mercatum "a
market"] Scots law. Belonging to trade.
mercatum (mar-kay-tam), n. [Law Latin] A market; a
contract ofsale; a bargain.
mercedary (mar-sa-der-ee), n. [Latin] An employer; one
who hires.
mercenarius (mar-sa-nair-ee-as), n. [Latin) 1. An
employee; a servant. 2. A soldier of fortune. -Also
spelled mercennarius.
mercenary (mar-sa-ner-ee). (14c) Int'llaw. A profes
sional soldier hired by someone other than his or her
own government to fight in a foreign country.
mercenlage (mar-san-law). [fro Saxon myrcnalag] The law
of the Mercians . This was one of the three principal
legal systems prevailing in England at the beginning
of the lith century. It was observed in many midland
counties and those bordering on Wales. -Also spelled
merchenlage (mar-sh.m-law), Also termed lex mercio
rum (leks mar-shee-or-am); Mercian law (mar-shee-an
or mar-shan). See DANELAW; WEST SAXON LAW.
"[Ajbout the beginning of the eleventh centtJry there were
three principal systems of laws prevailing in different
districts .... The Mercen-Lage, or Mercian laws, which
were observed in many of the midland counties, and those
bordering on the principality of Wales; the retreat of the
ancient Britons; and therefore very probably intermixed
with the British or Druidical customs." 1 William Blackstone,
Commentaries on the Laws ofEngland 65 (1765).
merces (mar-seez), n. [Latin] Roman law. 1. An agreed
payment for a thing or services specifically contracted
for; rent, hire.
'There must be consent. a thing let, and an agreed payment
(merces) .... The merces must be certain and Justinian's
texts say that, as in sale, it must be money. But there is not
the same difficulty here, and Gaius does not state such a
rule. It is possible that it did not exist in claSSical law and.
even under Justinian, some cases cannot be reconciled with
the rule. The rent of land might be in produce and even
a fraction of the crop. This last conflicts with the rule of
Gaius that it must be certain: it is held by some writers
that the text is interpolated, by others that the relation
was not really locatio conductiO, but societas (partnership).
The merceswas not usually a lump sum: more often itwas a series of periodical payments." WW. Buckland, A Manual
of Roman Private Law 289-90 (2d ed. 1939).
2. A reward, esp. for a gratuitous service. Cf. HONO
RARIUM.
"A recompense paid for any kind of services, without a
preceding agreement (e.g., for saving one's life) is also
called merces." Adolf Berger, Encyclopedic Dictionary of
Roman Law 581 (1953).
merchandise (m;lr-chan-dIZ also -dIS). (13c) 1. In general,
a movable object involved in trade or traffic; that which
is passed from one person to another by purchase and
sale. 2. In particular, that which is dealt in by mer
chants; an article of trading or the class of objects in
which trade is carried on by physical transfer; collec
tively, mercantile goods, wares or commodities, or any
subjects ofregular trade, animate as well as inanimate.
This definition generally excludes real estate, ships,
intangibles such as software, and the like, and does not
apply to money, stocks, bonds, Dotes, or other mere
representatives or measures ofactual commodities or
values. -Also termed (in senses 1 and 2) article ofmer
chandise. 3. Purchase and sale; trade; dealing,
or advantage from dealing.
merchandise broker. See BROKER.
Merchandise Marks Acts. Hist. An 1887 statute (50 & 51
Vict., ch. 28) making it a misdemeanor to fraudulently
mark merchandise for sale or to sell merchandise so
marked. This statute was repealed in 1968.
merchant. (Be) One whose business is buying and selling
goods for profit; esp. a person or entity that holds itself
out as having expertise peculiar to the goods in which
it deals and is therefore held by the law to a higher
standard of expertise than that of a nonmerchant.
Because the term relates solely to goods, a supplier of
services is not considered a merchant. [Cases: Sales (;::::c
15.1.]
"The definition of 'merchant' in [UCCI Section 2-104(1)
identifies two separate but often interrelated criteria: Does
the seller 'deal in goods' of that kind, or does the seller
'otherwise by his occupation' hold himself out as having
special knowledge with respect to the goods? It should be
emphasized that the drafters have placed these two criteria
in the alternative by use of the word 'or.' Thus, the defini
tion dearly catches all those who regularly sell inventory
even though they may have no expertise regarding the
particular product. This would include distributors, whole
salers. and retail dealers, Dealers who sell prepackaged
goods containing a defect over which they have no control
might be surprised to learn that they have given an implied
warranty of merchantability with respect to the goods, but
such is the law." Barkley Clark &Christopher Smith, The Law
ofProduct Warranties 5.02[1], at 5-25 (1984).
merchantable (m;lr-ch;mt-a-bal), adj. (15c) Fit for sale
in the usual course oftrade at the usual selling prices;
MARKETABLE. -Also termed salable. See implied
warranty of merchantability under WARRANTY (2).
[Cases: Sales (;::::c272.] merchantability, n.
merchantable title. See marketable title under TITLE
(2).
merchant appraiser. An expert appointed by a customs
officer to reexamine and revalue imported goods for
customs purposes . lhe appraiser is usu. an experi
enced merchant who deals in or has dealt in goods of
the character and quality ofthose at issue. An appraiser
is appointed only when an importer requests one.
[Cases: Customs Duties
merchant exception. (1973) Contracts. In a sale ofgoods,
an exemption from the statute of frauds whereby a
contract between merchants is enforceable if, within a
reasonable time after they reach an oral agreement, a
written confirmation of the terms is sent, to which the
recipient does not object within ten days of receiving it.
The only effect offailing to object to the written con
firmation is that the recipient will be precluded from
relying on the statute offrauds or the lack of a formal,
written agreement as a defense to a breach-of-con
tract claim. The party seeking to enforce an agreement
must still prove that an agreement was reached. UCC
2-201. [Cases: Frauds, Statute ofC=:> 127.J
merchant lessee. See LESSEE.
merchantman. Archaic. A vessel employed in foreign or
interstate commerce or in the merchant service.
merchant's accounts. Current, mutual accounts between
merchants showing debits and credits for merchan
dise.
merchant's defense. (1972) The principle that a store
owner will not be held liable for reasonably detaining
a suspected shoplifter, to facilitate an investigation by
a law-enforcement officer, if probable cause exists to
suspect the detained person of wrongfully removing
merchandise from the store. [Cases: False Imprison
ment 13.J
merchant seaman. See SEAMAN.
merchant's firm offer. See irrevocable offer under
OFFER.
Merchant Shipping Acts. English statutes to improve
shipping conditions by, among other things, vesting
the supervision of merchant shipping in the board of
trade.
merchet (mar-chet). See MARCHET.
mercheta. See MARCHET.
merchetnm. See MARCHET.
merciament (mar-see-,,-m;mt). Archaic. See AMERCE
MENT.
Mercian law. See MERCENLAGE.
Mercimoniatus Angliae (m3r-s3-moh-nee-ay-t3s ang
glee-ee). [Law Latin] Hist. English customs duties on
merchandise brought into the country.
Mercosur. A common market of South American nations
created to facilitate free trade among members . The
entity was created by the Treaty of Asuncion in 1991.
The charter nations were Argentina, Brazil, Paraguay,
and Uruguay. Also termed Southern Common
Market.
mercy. (13c) Compassionate treatment, as of criminal
offenders or of those in distress; esp. imprisonment, rather than death, imposed as punishment for capital
murder. See CLEMENCY.
mercy killing. See EUTHANASIA.
mercy rule. (1981) Evidence. The principle that a defen
dant is entitled to offer character evidence as a defense
to a criminal charge . This type of evidence is often
offered by the defendant's friends and relatives. Fed. R.
Evid. 404(a)(1). [Cases: Criminal Law
mere (mair or mer), n. [Law French) Mother, as in the
phrase en ventre sa mere ("in its mother's womb").
mere-continuation doctrine. A principle under which
a successor corporation will be held liable for the acts
of a predecessor corporation, if only one corporation
remains after the transfer of assets, and both corpo
rations share an identity of stock, shareholders, and
directors. Also termed continuity-oi-entity doctrine.
Cf. SUBSTANTIAL-CONTINUITY DOCTRINE. [Cases: Cor
porations C)445.L]
mere-evidence rule. Criminal procedure. The former
doctrine that a search warrant allows seizure of the
instrumentalities of the crime (such as a murder
weapon) or the fruits of the crime (such as stolen
goods), but does not permit the seizure of items that
have evidentiary value only (such as incriminating doc
uments). The Supreme Court has abolished this rule,
and today warrants may be issued to search for and
seize all evidence of a crime. Warden v. Hayden, 387
U.S. 294, 87 S.Ct. 1642 (1967); Fed |
7
U.S. 294, 87 S.Ct. 1642 (1967); Fed. R. Crim. P.41(b).
[Cases: Searches and Seizures ~102.]
mere license. See bare license under LICENSE.
mere licensee. See bare licensee under LICENSEE.
mere motu. See EX MERE MOTU.
mere right. An abstract right in property, without pos
session or even the right ofpossession. Also termed
jus merum; merum jus; meer dreit.
"The mere right of property, the jus proprietatis, Without
either possession or even the right of possession. This
is frequently spoken of in our books under the name of
the mere right, jus merum; and the estate of the owner
is in such cases said to be totally devested, and put to a
right. A person in this situation may have the true ultimate
property of the lands in himself: but by the intervention
of certain Circumstances, either by his own negligence,
the solemn act of his ancestor, or the determination of
a court of justice, the presumptive evidence of that right
is strongly in favour of his antagonist; who has thereby
obtained the absolute right of possession .... The heir
therefore in this case has only a mere right, and must be
strictly held to the proof of it, in order to recover the lands."
2 William Blackstone, Commentaries on the Laws ofEngland
197-98 (1766).
merestone (meer-stohn). Archaic. A stone that marks
land boundaries. -Also spelled mearstone.
meretricious (mer-3-trish-3s), adj. (17c) 1. Involv
ing prostitution <a meretricious encounter>. 2. (Of a
romantic relationship) involving either unlawful sexual
connection or lack ofcapacity on the part ofone party
<a meretricious marriage>. 3. Superficially attractive
but fake nonetheless; alluring by false show <meretri
cious advertising claims>.
1078 meretricious relationship
meretricious relationship. Archaic. A stable, marriage
like relationship in which the parties cohabit knowing
that a lawful marriage between them does not exist.
[Cases: Marriage C=>54(1).]
mergee (mar-jee). A participant in a corporate merger.
merger. (I8c) 1. The act or an instance of combining or
uniting. 2. Contracts. The substitution of a superior
form ofcontract for an inferior form, as when a written
contract supersedes all oral agreements and prior
understandings. See INTEGRATION (2). [Cases: Con
tracts C=>245.]
"Where two parties have made a simple contract for any
purpose, and afterwards have entered into an identical
engagement by deed, the simple contract is merged in the
deed and becomes extinct. This extinction of a lesser in a
higher security, like the extinction of a lesser in a greater
interest in lands, is called merger." William R. Anson, Prin
ciples of the Law of Contract 85 (Arthur L. Corbin ed., 3d
Am. ed. 1919).
3. Contracts. The replacement of a contractual duty
or of a duty to compensate with a new duty between
the same parties, based on different operative facts,
for the same performance or for a performance dif
fering only in liquidating a duty that was previously
unliquidated. 4. Property. The absorption of a lesser
estate into a greater estate when both become the same
person's property. Cf. SURRENDER (3). [Cases: Estates
in Property C=> 10.]
"[Ilt would be absurd to allow a person to have two distinct
estates, immediately expectant on each other, while one
of them includes the time of both .... There would be an
absolute incompatibility in a person filling, at the same
time, the characters of tenant and reversioner in one and
the same estate; and hence the reasonableness, and even
necessity, of the doctrine of merger." 3 James Kent, Com
mentaries on American Law *99 (George Comstock ed.,
11th ed. 1866).
5. Criminal law. The absorption of a lesser included
offense into a more serious offense when a person is
charged with both crimes, so that the person is not
subject to double jeopardy . For example, a defendant
cannot be convicted of both attempt (or solicitation)
and the completed crime -though merger does not
apply to conspiracy and the completed crime. -Also
termed merger ofoffenses. [Cases: Criminal Law C=>
30.] 6. Civil procedure. The effect ofa judgment for the
plaintiff, which absorbs any claim that was the subject
ofthe lawsuit into the judgment, so that the plaintiff's
rights are confined to enforcing the judgment. Cf. BAR
(5). [Cases: Judgment C=> 582.] 7. The joining of the
procedural aspects of law and equity. 8. The absorp
tion ofone organization (esp. a corporation) that ceases
to exist into another that retains its own name and
identity and acquires the assets and liabilities of the
former. Corporate mergers must conform to statutory
formalities and usu. must be approved by a majority
of the outstanding shares. -Also termed corporate
merger. Cf. CONSOLIDATION (4); BUYOUT. [Cases: Cor
porations C=>581.]
bust-up merger. A merger in which the acquiring
corporation sells off lines ofbusiness owned by the target corporation to repay the loans used in the
acquisition.
cash merger. A merger in which shareholders of the
target company must accept cash for their shares.
Also termed cash-out merger; freeze-out merger.
[Cases: Corporations C=>584.]
conglomerate merger. A merger between unrelated
businesses that are neither competitors nor custom
ers or suppliers of each other. [Cases: Antitrust and
Trade Regulation C=>769.]
"A merger which is neither vertical nor horizontal is a con
glomerate merger. A pure conglomerate merger is one in
which there are no economic relationships between the
acquiring and the acquired firm. Mixed conglomerate
mergers involve horizontal or vertical relationships, such
as the acquisition of a firm produCing the same product
as the acquirer but selling it in a different geographical
market, which is not a horizontal merger because the
merging companies are not competitors ...." 54 Am.
Jur. 2d Monopolies, Restraints of Trade, and Unfair Trade
Practices 169, at 226 (1996).
de facto merger (di fak-toh). A transaction that has
the economic effect of a statutory merger but that is
cast in the form of an acquisition or sale of assets
or voting stock. Although such a transaction does
not meet the statutory requirements for a merger, a
court will generally treat it as a statutory merger for
purposes ofthe appraisal remedy. [Cases: Corpora
tions C=>445.1.]
downstream merger. A merger ofa parent corporation
into its subsidiary.
forward triangular merger. See triangular merger.
freeze-out merger. See cash merger.
horizontal merger. A merger between two or more
businesses that are on the same market level because
they manufacture similar products in the same geo
graphic region; a merger of direct competitors.
Also termed horizontal integration.
product-extension merger. A merger in which the
products of the acquired company are complemen
tary to those of the acquiring company and may be
produced with similar facilities, marketed through the
same channels, and advertised by the same media.
reverse triangular merger. A merger in which the
acquiring corporation's subsidiary is absorbed into
the target corporation, which becomes a new sub
sidiary ofthe acquiring corporation. -Also termed
reverse subsidiary merger.
short-form merger. A statutory merger that is less
expensive and time-consuming than an ordinary
statutory merger, usu. permitted when a subsidiary
merges into a parent that already owns most of the
subsidiary's shares. Such a merger is generally
accomplished when the parent adopts a merger reso
lution, mails a copy of the plan to the subsidiary's
record shareholders, and files the executed articles
of merger with the secretary of state, who issues a
certificate ofmerger.
1079 mesne
statutory merger. A merger provided by and conducted
according to statutory requirements.
stock merger. A merger involving one company's
purchase of another company's capital stock.
triangular merger. A merger in which the target cor
poration is absorbed into the acquiring corporation's
subsidiary, with the target's shareholders receiving
stock in the parent corporation. -Also termed sub
sidiary merger;forward triangular merger.
upstream merger. A merger of a subsidiary corpora
tion into its parent.
vertical merger. A merger between businesses occupy
ing different levels ofoperation for the same product,
such as between a manufacturer and a retailer; a
merger ofbuyer and seller.
9. The merger of rights and duties in the same person,
resulting in the extinction of obligations; esp. the
blending ofthe rights ofa creditor and debtor, resulting
in the extinguishment ofthe creditor's right to collect
the debt. As originally developed in Roman law, a
merger resulted from the marriage of a debtor and
creditor, or when a debtor became the creditor's heir.
Also termed confusion; confusion ofdebts; confusion of
rights. Cf. CONFUSION OF TITLES. 10. The absorption
of a contract into a court order, so that an agreement
between the parties (often a marital agreement incident
to a divorce or separation) loses its separate identity as
an enforceable contract when it is incorporated into a
court order.
mergerdause. See INTEGRATION CLAUSE.
merger doctrine. 1. Copyright. The principle that since
an idea cannot be copyrighted, neither can an expres
sion that must inevitably be used in order to express
the idea. _ When the idea and expression are very dif
ficult to separate, they are said to merge. For example,
courts have refused copyright protection for business
ledger forms (Baker v. Selden, 101 U.S. 99 (1879)), and
for contest rules that were copied almost verbatim
(Morrissey v. Procter & Gamble, 379 F.2d 67S (1st Cir.
1967). -Also termed Baker v. Selden doctrine. [Cases:
Copyrights and Intellectual Property <8=::4.5.] 2. Hist.
Family law. The common-law principle that, upon
marriage, the husband and wife combined to form
one legal entity. -Often shortened to merger; merger
doctrine. See SPOUSAL-UNITY DOCTRINE; LEGAL-UNI
TIES DOCTRINE.
merger ofoffenses. See MERGER (5).
meritorious (mer-<>-tor-ee-<>s), adj. (lSc) 1. (Of an act,
etc.) meriting esteem or reward <meritorious trial per
formance>. 2. (Ofa case, etc.) meriting a legal victory;
having legal worth <meritorious claim>.
meritorious consideration. See good consideration
under CONSIDERATION (1).
meritorious defense. See DEFENSE (1).
merit regulation. Under state blue-sky laws, the practice
of requiring securities offerings not only to be accompanied by a full and adequate disclosure but also to be
substantively fair, just, and equitable.
merits. (18c) 1. The elements or grounds of a claim or
defense; the substantive considerations to be taken
into account in deciding a case, as opposed to extra
neous or technical points, esp. of procedure <trial on
the merits>. 2. EQUITY (3) <on questions ofeuthanasia,
the Supreme Court has begun to concern itself with the
merits as well as the law>.
merits brief. See briefon the merits under BRIEF.
merits discovery. See DISCOVERY.
merit system. (1879) The practice ofhiring and promot
ing employees, esp. government employees, based on
their competence rather than political favoritism. Cf.
SPOILS SYSTEM. [Cases: Officers and Public Employees
11.]
Merit Systems Protection Board. The independent
federal agency that oversees personnel practices of
the federal government and hears and decides appeals
from adverse personnel actions taken against federal
employees. It has five regional offices and five field
offices. Its functions were transferred from the former
Civil Service Commission under Reorganization Plan
No.2 of1978. Abbr. MSPB. See CIVIL SERVICE COM
MISSION. [Cases: Officers and Public Employees <8=::
72.20.]
MERP. abbr. Medical-expense reimbursement plan. See
EMPLOYEE BENEFIT PLAN.
Merrill doctrine. The principle that the government
cannot be estopped from disavowing an agent's unau
thorized act. Federal Crop Ins. Corp. v. Merrill, 332 U.S.
380,68 S.Ct. 1 (1947). [Cases: Estoppel <8=::62; United
States <8=::60.]
merum (meer-<>m). [Latin] Hist. Mere; naked.
merum jus (meer-3m j3S). See MERE RIGHT.
merx (m<>rks). [Latin] Hist. Trade articles; merchan
dise.
merx et pretium (marks et pree-shee-<>m). [Law Latin]
Roman & Scots law. Goods and a price . These compo
nents are two essential items for a sales contract.
mescreaunt (mes-kree-awnt or mis-kree-<>nt). [Law
French] Hist. MISCREANT. -Also termed mescroy
ant.
mese (meez or mees), n. [Law French] Hist. A house.
Also spelled mees; meas.
mesnalty (meen-<>l-tee), n. [fro Law French and English
mesne "middle") Hist. l. The estate or manor held by
a mesne lord. 2. The right of the mesne; the tenure of
the mesne lord. -Also spelled mesnality. See MESNE
LORD.
mesne ( |
tenure of
the mesne lord. -Also spelled mesnality. See MESNE
LORD.
mesne (meen), adj. (l6c) 1. Occupying a middle position;
intermediate or intervening, esp. in time ofoccurrence
or performance <the mesne encumbrance has priority
over the third mortgage, but is subordinate to the first
mortgage>. 2. Hist. Of or relating to a lord who holds
land ofa superior while himself having a tenant.
mesne, writ of 1080
mesne, writ of. See DE MEDIO.
mesne agreement. A transfer of intellectual-property
rights through an intermediary, usu. an assignee, rather
than directly from the property's creator.
mesne assignment. See ASSIGNMENT (2).
mesne conveyance. See CONVEYANCE.
mesne encumbrance. See ENCUMBRANCE.
mesne lord. Hist. A feudal lord who stood between a
tenant and the chieflord, and held land from a superior
lord. See LORD (3).
mesne process. See PROCESS.
mesne profits. See PROFIT (1).
mesonomic (mes-;)-nom-ik also mee-z;)), adj. Of, relating
to, or involving an act that, although it does not affect a
person's physical freedom, has legal consequences in its
evolution. This term was coined by the philosopher
Albert Kocourek in his book Jural Relations (1927). Cf.
ZYGNOMIC.
message. (14c) A written or oral communication, often
sent through a messenger or other agent, or electroni
cally (e.g., through e-mail or voicemail).
annual message. A message from the President or a
governor given at the opening of an annuallegisla
tive session.
Presidential message. A communication from the
President to the U.S. Congress on matters pertain
ing to the state ofthe union, esp. ofmatters requiring
legislative consideration. U.S. Const. art. II, 3.
Also termed State ofthe Union. [Cases: United States
C:=>26.]
special message. A message from the President or a
governor relating to a particular matter.
veto message. See VETO MESSAGE.
message from the Crown. An official communication
from the sovereign to Parliament.
messarius (m;)-sair-ee-;)s), n. [fr. Latin messis] Hist. A
chief servant; a bailiff; an overseer of the harvest.
messenger. (14c) 1. One who conveys a communication;
esp. one employed to deliver telegrams or other com
munications. 2. Hist. An officer who performs certain
ministerial duties, such as taking temporary charge of
assets ofan insolvent estate.
messuage (mes-wij). (14c) A dwelling house together
with the curtilage, including any outbuildings. See
CURTILAGE.
meta (mee-t;)), n. [Latin] 1. Roman law. The mark where
a racecourse ends or around which chariots turn; by
extension, a limit in space or time. 2. Hist. A boundary;
a border.
metadata. Secondary data that organize, manage, and
facilitate the use and understanding ofprimary data.
Metadata are evaluated when conducting and respond
ing to electronic discovery. Ifprivileged documents or
final versions ofcomputer files may contain metadata,
they might be "scrubbed" before release. See Fed. R. Civ. P. 26(b)(2)(B). [Cases: Federal Civil Procedure C:=>
1581.]
metalaw (met-;)-law). (1956) A hypothetical set oflegal
principles based on the rules of existing legal systems
and designed to provide a framework ofagreement for
these different systems.
"[Tlhe Constitution controls the deployment of governmen
tal power and defines the rules for how such power may
be structured and applied. The Constitution, therefore,
is not a body of rules about ordinary private actions, but
a collection of rules about the rules and uses of law: in a
word, metalaw." Laurence H. Tribe, Constitutional Choices
246 (1985).
metallum (m;)-tal-;)m), n. Roman law. 1. Metal; a mine.
2. Labor in the mines as punishment for a crime .
This was one of the most severe punishments short of
death.
metatag. A word or phrase in HTML computer code that
usu. identifies the subject of a web page and acts as a
hidden keyword for Internet search engines . A person
who uses a trademark as a meta tag without permission
may infringe on the trademark owner's rights.
metatus (m;)-tay-t;)s), n. [Law Latin] Hist. A dwelling;
quarters; a seat.
metayer system (me-tay-pr or met-;)-yay). An agricul
tural system in which land is divided into small farms
among single families who pay a landlord a fixed
portion -usu. half -ofthe produce and the landlord
provides the stock. The system was formerly prevalent
in parts of France and Italy, and in the southern part of
the United States. -Also written metayer system.
metecorn (meet-korn). Archaic. A portion ofgrain a lord
pays a tenant for labor.
metegavel (meet-gav-;)l). Archaic. A rent or tribute paid
in supplies offood.
metelotage (me-te-loh-tahzh). [French] 1. French law.
The leasing ofa ship. 2. A seaman's wages.
mete out, vb. (bef. lSc) To dispense or measure out
(justice, punishment, etc.) <shortly after the jury
returned its verdict, the judge meted out an appropri
ate punishment>.
meter. 1. A metric unit oflength equal to 39.368 inches.
2. An instrument of measurement used to measure
use or consumption, esp. used by a utility company to
measure utility consumption <a gas meter> <a water
meter> <a parking meter>.
meter rate. A rate that a utility company applies to deter
mine a charge for service <meter rate based on kilo
watt-hours of electricity>.
metes and bounds (meets). (lSc) The territorial limits
of real property as measured by distances and angles
from designated landmarks and in relation to adjoin
ing properties . Metes and bounds are usu. described
in deeds and surveys to establish the boundary lines
ofland. -Also termed running description; butts and
bounds; lines and corners. See CALL (5). [Cases: Bound
aries C:=>6-8.]
1081
metewand (meet-wahnd). Archaic. A measuring staff of
varying lengths.
meteyard (meet-yahrd). Archaic. A metewand that is
one yard long.
method. (15c) A mode oforganizing, operating, or per
forming something, esp. to achieve a goal <method of
election> <method ofperforming a job>.
method claim. See PATENT CLAIM.
method patent. See PATENT (3).
metric system. (1864) A decimal system for measuring
length, weight, area, or volume, based on the meter as
a unit length and the kilogram as a unit mass.
metropolitan, adj. (14c) Of or relating to a city or
metropolis.
metropolitan, n. Eccles. law. An archbishop; the head
ofa province <the Archbishop ofCanterbury is a met
ropolitan>.
metropolitan council. An official or quaSi-official body
appointed or elected by voters ofa metropolitan area
to provide for the unified administration of services
(such as sewage disposal or public transportation) to
the cities and towns within the metropolitan area.
[Cases: Municipal Corporations <>::)39.J
metropolitan district. See DISTRICT.
metropolitan magistrate. See metropolitan stipendiary
magistrate under MAGISTRATE.
metteshep (meet-sh;lp). Hist. 1. An acknowledgment
paid in a measure of corn. 2. A penalty imposed on
a tenant for neglect of duty, such as failing to cut the
lord's corn. -Also spelled mettenschep.
metus (mee-t;ls), n. [Latin] Roman law. 1. Fear of
imminent danger; apprehension ofserious danger, esp.
in the form ofduress to force a person to do something;
the use ofthreats to bring about some end. Metus was
more comprehensive than duress is in Anglo-American
law. It included fear ofany evil that was serious enough
to affect a reasonable person.
"Fear (metus) had the same effect as fraud as regards the
avoidance of the contract. It might be set up by way of
defence (exceptio metus) or be the ground of restitutio in
integrum, or give rise to an action (actio metus) .... It was
not any kind of fear which grounded this action. The evil
threatened must be of a serious character ... ," R.w. Lee,
The Elements of Roman Law 352 (4th ed. 1956).
2. A threat that diminishes the value of another's
property. In both senses, a victim was allowed to seek
fourfold damages against the perpetrator. Cf. DOLUS.
metusperjurii (mee-t;ls p;lr-juur-ee-I). [Law Latin] Scots
law. Ihe fear ofperjury.
"On this ground the evidence of the parties to a cause, and
that of their relatives, was formerly excluded. It was feared
that their own, or their relatives', interest in the result of
the cause might lead them to give false evidence, in order
to bring about a favourable decision. This, however, is no
longer law. The desire to obtain all the light possible on
the facts in dispute, has overcome the metus perjurii." John
Trayner, Trayner's Latin Maxims 353-54 (4th ed. 1894). midnight deadline
meubles (muu-bal or myoo-bla), n. [Law French]
Movables, such as household utensils. See MOVABLE.
Mexican divorce, See DIVORCE.
MFN. abbr. MOST FAVORED NATION.
MFN clause. See MOST-FAVORED-NATION CI.AUSE.
MFN treatment. abbr. MOST-FAVOR ED-NATION TREAT
MENT.
Michaelmas. See quarter day under DAY.
Michaelmas sittings (mik-al-m;ls). In England, a term
ofcourt running from November 2 to November 25 .
Until 1875, this was also called the Michaelmas term.
Ibe division ofthe legal year into terms was abolished
by the Judicature Act of1873. Also termed Michael
mas term. Cf. EASTER SITTINGS; HILARY SITTINGS;
TRDllTY SITTINGS.
miche (mich), vb. Hist. To hide; to sneak; to play truant.
Also spelled mitch.
michery (mich-;lr-ee). Hist. Theft; cheating.
Midcal test. Antitrust. The doctrine that the anticom
petitive acts ofa private party will be considered state
acts and thereby protected from liability under the
antitrust laws ifthe acts are within a clearly articu
lated and affirmatively expressed policy ofthe state, and
ifthe conduct is actively supervised by the state. Cali
fornia Retail Liquor Dealers Ass'n v. Midcal Aluminum,
Inc., 445 U.S. 97, 100 S.Ct. 937 (1980). See STATE-ACTION
DOCTRINE; ACTIVE SUPERVISION. [Cases: Antitrust and
Trade Regulation C==904,j
mid-channel. See MIDDLE LINE 01:' MAD! CHANNEL.
middle burden ofproof. See BURDEN OF PROOF.
middle-level scrutiny. See INTERMEDIATE SCRUTINY.
middle line of main channel. The equidistant point in
the main channel ofthe river between the well-defined
banks on either shore; the middle thread of a river's
current. -Also termed mid-channel; middle ofthe
river.
middleman. (17c) An intermediary or agent between two
parties; esp. a dealer (such as a wholesaler) who buys
from producers and sells to retailers or consumers.
middle management. See MANAGEMENT.
middle of the river. See MIDDLE LINE OF MAIN
CHANNEL.
middle-of-the-road test. See HYDRA FLOW TEST.
middle thread. Ihe center line of something; esp. an
imaginary line drawn lengthwise through the middle
of a stream's current.
mid-level scrutiny. See INTERMEDIATE SCRUTINY.
midnight deadline. A time limit for doing something,
ending at midnight on a particular day. For a bank,
the midnight deadline is midnight on the next banking
day following the day on which the bank receives the
relevant item or from which the time for taking action
begins to run, whichever is later. UCC 4-104{a)(1O).
[Cases: Banks and Banking C=)140(3), 171(5),]
1082 midnight judge
midnight judge. His/. A federal judicial nominee
appointed by President John Adams just before his
term expired, in an effort to pack the judiciary with
Federalist Party sympathizers . The Judiciary Act of
1801, passed and signed into law a few weeks before
Adams's term expired, led to the appointment of 84
federal judges and countless marshals, clerks, attor~
neys, registers of wills, and justices ofthe peace, all of
whom were affiliated with the Federalists. The Senate
approved nominations and granted commissions up
until its final adjournment just before Thomas Jeffer
son's inauguration. More than halfofthe commissions
had not been delivered by the end ofinauguration day.
Secretary ofState James Madison, acting at Jefferson's
direction, barred their delivery and treated them as
void. This led William Marbury to seek a federal court
order to compel Madison to deliver Marbury's commis
sion as justice of the peace. See Marbury v. Madison,S
U.S. 137 (1803).
midshipman. (l7c) A naval cadet; a student at the U.S.
Naval Academy. lCases: |
midshipman. (l7c) A naval cadet; a student at the U.S.
Naval Academy. lCases: Armed Services C=>16.J
Midsummer Day. See quarter day under DAY.
midway. See THALWEG.
Midwest Piping rule. Labor law. The doctrine that an
employer may not recognize multiple unions during a
period in which there are conflicting claims of repre
sentation. Midwest Piping & Supply Co., 63 NLRB Dec.
(CCH) 1060 (1945).
migrant worker. l. Int'llaw. A person who works sea
sonally as an agricultural laborer in a foreign country,
esp. in agricultural labor. [Cases: Labor and Employ
ment C=>2700.] 2. A person who works seasonally as a
laborer in a different part ofhis or her own country.
migration. (l7c) Movement (of people or animals) from
one country or region to another.
migratory corporation. See CORPORATION.
migratory divorce. See DIVORCE.
Mike O'Connor rule. Labor law. The doctrine that uni
lateral changes that an employer makes after a union
victory in an initial-representation election -but
before the employer's objections have been resolved
are automatic violations of the National Labor Rela
tions Act if the employer's objections are rejected . If
the employer's objections are sustained, any failure-to
bargain charge will be dismissed because the employer
had no duty to bargain. But ifthe employer's objections
are rejected, the employer is considered to have been
under a duty to bargain as of the date ofthe election,
which is why the unilateral changes are automatic vio
lations of the Act. Mike O'Connor Chevrolet-Buick
GMC Co., 209 NLRB Dec. (CCH) 701 (1974).
mild exigency. (1984) A circumstance that justifies a
law-enforcement officer's departure from the knock
and-announce rule, such as the likelihood that the
building's occupants will try to escape, resist arrest, or
destroy evidence. See KNOCK-AND-ANNOUNCE RULE. mile. (bef. 12c) 1. A measure ofdistance equal to 5,280
feet. Also termed statute mile. 2. NAUTICAL MILE.
mileage. (18c) 1. The distance in miles between two
points. 2.lhe distance a vehicle has traveled as reflected
by an odometer. 3. An allowance paid for travel
expenses, as of a witness or public employee. [Cases:
Witnesses
miles (ml-leez), n. [Latinll. Roman law. A soldier. 2.
Hist. A knight.
militare (mil-a-tair-ee), vb. [LatinJ 1. Roman law. To
serve as a soldier . This verb later referred to serving in
public office, civil or military. 2. Hist. To be knighted.
military, adj. (15c) 1. Ofor relating to the armed forces
<military base>. 2. Of or relating to war <military
action>.
military, n. (l8c) The armed forces.
military allotment. Family law. A child-support deduc
tion from the salary ofan obligor parent on active duty in
the United States military and paid to the obligee parent.
See attachment ofwages under ATTACHMENT (1).
military board. A group of persons appointed to act
as a fact-finding agency or as an advisory body to the
appointing military authority.
military bounty land. Land offered to members of the
military as a reward for services. See donation land,
bounty land under LAND; BOUNTY-LAND WARRANT.
[Cases: Bounties
military commission. A court, usu. composed of both
civilians and military officers, that is modeled after a
court-martial and that tries and decides cases concern
ing martial-law-violations. See COURT-MARTIAL.
military-contract defense. See GOVERNME;:'[T-CONTRAC
TOR DEFENSE.
military-contractor defense. See GOVERNMENT-CON
TRACTOR DEFENSE.
military court. See COURT.
military court ofinquiry. See COURT.
military draft. See DRAFT (2).
military government. Int'llaw. The control ofall or most
public functions within a country, or the assumption
and exercise of governmental functions, by military
forces or individual members of those forces; govern
ment exercised by a military commander under the
direction of the executive or sovereign, either exter
nally during a foreign war or internally during a civil
war. A military government's actions supersede all
local law. See MARTIAL LAW.
military judge. See JUDGE.
military judge alone. Military law. A court-martial
presided over by a single judge with no other court
martial members present. [Cases: Military Justice
874.]
military jurisdiction. The three types ofgovernmental
power given the military by the U.S. Constitution
specif., jurisdiction under military law, jurisdiction
1083
under military government, and jurisdiction under
martial law. [Cases: Armed Services 1-5, 44;
Military Justice 893.]
military justice. A structure of punitive measures
designed to foster order, morale, and discipline within
the military. See MILITARY LAW. [Cases: Armed Services
<8='42; Military Justice (;:='500-510.]
militarylaw. The branch of public law governing military
discipline and other rules regarding service in the
armed forces . It is exercised both in peacetime and in
war, is recognized by civil courts, and includes rules far
broader than for the punishment ofoffenders. Also
termed military justice. -Sometimes loosely termed
martial law. Cf. MARTIAL LAW.
"Military Law. . is largely, but not exclUSively, statutory
in character, and prescribes the rights of, and imposes
duties and obligations upon, the several classes of persons
composing its military establishment; it creates military
tribunals, endows them with appropriate jurisdiction and
regulates their procedure; it also defines military offenses
and, by the imposition of adequate penalties, endeavors to
prevent their occurrence." George B. Davis, A Treatise on
the Military Law of the United States 1 (3d ed. 1915).
military leave. A policy contained in employment
policies or collective-bargaining agreements allowing
a long-term leave of absence without an accompany
ing loss of benefits -for a person in active service in
the u.s. armed forces.
military necessity. Int'llaw. A principle of warfare
allOWing coercive force to achieve a desired end, as
long as the force used is not more than is called for by
the situation . This principle dates from the Hague
Convention on Laws and Customs ofWar on Land of
October 18, 1907, which prohibits the destruction or
seizure of enemy property "unless such destruction or
seizure be imperatively demanded by the necessities of
war. [Cases: War and National Emergency
military objective. Int'l law. An object that by its nature,
location, or use contributes to military action, and is
thus susceptible to attack. Under Geneva Conven
tion Protocol 1 (1977), only military -rather than
civilian -objects are proper targets.
military offense. An offense, such as desertion, that lies
within the jurisdiction ofa military court. See COURT
MARTIAL [Cases: Armed Services Military
Justice <:>550-789.J
military officer. See OFFICER (2).
Military Rules ofEvidence. The rules of evidence appli
cable to military law and courts-martial. -Abbr. MRE.
[Cases: Military Justice <:> 1020-1152.]
military tenure. See TENURE.
military testament. See soldier's will under WILL.
militate (mil-d-tayt), vb. (16c) To exert a strong influence
<the evidence ofpolice impropriety militates against a
conviction>. Cf. MITIGATE.
milites (mil-d-teez), n. 1. Roman law. Members of the
military; soldiers. 2. Hist. Knights who are part of the
royal army, by virtue offeudal tenure. Miller v. Shugart agreement
"[Knightsl are also called in our law milites, because they
formed a part of the royal army, in virtue of their feodal
tenures; one condition of which was, that everyone who
held a knight's fee immediately under the crown ... was
obliged to be knighted and attend the king in his wars, or
fine for his noncompliance." 1 William Blackstone. Com
mentaries on the Laws ofEngland 404 (1765).
3. Scots law. Freeholders holding estates from barons
for military service.
militia (md-lisb-a), n. (16c) 1. A body of citizens armed
and trained, esp. by a state, for military service apart
from the regular armed forces . The Constitution rec
ognizes a state's right to form a "well-regulated militia"
but also grants Congress the power to activate, organize,
and govern a federal militia. U.S. Canst. amend. II;
U.S. Const. art. I, 8, cl. 15-16. See NATIONAL GUARD.
[Cases: Militia <:> 1-3; Weapons
reserve militia. All persons who are not exempt from
military service and not actively serving in the armed
forces or national guard.
2. Roman law. Military service.
Militia Clause. (1918) One of two clauses of the U.S.
Constitution giving Congress the power to call forth,
arm, and maintain a military force to enforce compli
ance with its laws, suppress insurrections, and repel
invasions. U.S. Const. art. I, 8, cls. 15 and 16. [Cases:
Armed Services 5; Militia
milL (bef. 12c) 1. A machine that grinds corn, grain,
or other substances, esp. using a wheel and circular
motion. The substance ground in a mill is sometimes
called grist, esp. when it is a grain. Courts sometimes
refer to the grinding process as a metaphor for the
judicial process <suits to collect on promissory notes
are grist for the summary-judgment mill because the
material facts in such cases are often undisputed>.
[Cases: Manufactures 2. The building in which
the grinding is performed, along with the site, dam,
or other items connected with the mill. 3. A monetary
unit equal to one-tenth of a cent . Mills are a money
of account used in the United States and Canada, esp.
to reckon tax rates.
millage rate. See MIn RATE.
Miller Act. A federal law requiring the posting of per
formance and payment bonds before an award is made
for a contract for construction, alteration, or repair of
a public work or building. 40 USCA 270a-270d-l.
[Cases: United States <:>67.]
Miller trust. See TRUST.
Miller-Tydings Act. A federal law, enacted in 1937 as
an amendment to the Sherman Act, exempting fair
trade laws from the application of the Sherman Act
and legalizing resale-price-maintenance agreements
between producers and retailers of products . The Act
was repealed by the Consumer Goods Pricing Act of
1975.
Miller v. Shugart agreement. A settlement in which an
insured consents to a judgment in favor of the plain
tiff, on the condition that the plaintiff will satisfy the
1084 milling in transit
judgment only out of proceeds from the insured's
policy, and will not seek recovery against the insured
personally . Although the phrase takes its name from
a Minnesota case, it is used in other jurisdictions as
well. Miller v. Shugart, 316 N.w.2d 729 (Minn. 1982).
[Cases: Insurance C:=>3366.]
milling in transit. An arrangement in which a shipment
is temporarily detained at an intermediate point, usu.
for the application of some manufacturing process,
with or without an increase of a freight charge by the
carrier. [Cases: Carriers C:=> 12(2), 13(2).]
mill power. A unit of water power used in defining quan
tities and weights of water available to a lessee. [Cases:
Waters and Water Courses C:=>28S.]
mill privilege. The right ofa mill-site owner to construct
a mill and to use power from a stream to operate it,
with due regard to the rights ofother owners along the
stream's path. [Cases: Manufactures C:=>2.]
mill rate. A tax applied to real property whereby each
mill represents $1 of tax assessment per $1,000 of the
property's assessed value <the mill rate for taxes in this
county is 10 mills, so for a home valued at $100,000,
the owner will pay $1,000 in property taxes>. -Also
termed millage rate. [Cases: Taxation C:=>2428.]
mill site. 1. A small tract of land on or contiguous to a
watercourse, suitable for the erection and operation of
a mill. [Cases: Manufactures C:=>2.] 2. Mining law. A
small parcel of nonmineral public land (not exceed
ing five acres) claimed and occupied by an owner of
a mining claim because the extra space is needed for
mining or ore-reduction operations. 30 USCA 42.
Mimms order. (1993) A police officer's command for a
motorist to get out of the vehicle . A Mimms order
need not be independently justified if the initial stop
was lawful. Pennsylvania v. Mimms, 434 U.S. 106, 98
S.Ct. 330 (1977). [Cases: Automobiles C:=>349(16).]
mina (mI-nJ), n. [Law Latin] Hist. A measure of grain
or corn.
minage (mI |
mI-nJ), n. [Law Latin] Hist. A measure of grain
or corn.
minage (mI-nij), n. [Law French] Hist. A toll for selling
grain or corn by the mina.
minare (mi-nair-ee), vb. [Law Latin] Hist. To mine.
mind. (bef. 12c) 1. The source of thought and intellect;
the seat ofmental faculties. 2. The ability to will, direct,
or assent. -Also termed sound mind. 3. Memory.
mind and memory. Archaic. A testator's mental capacity
to make a will <she argued that her uncle was not of
sound mind and memory when executing the will
because he had Alzheimer's disease> . This phrase was
generally used as part ofthe phrase ofsound mind and
memory, referring to the capacity ofa testator to make
a will. See BONA MEMORIA; CAPACITY (2).
mine. (l4c) 1. An underground excavation used to
obtain minerals, ores, or other substances. 2. A mineral
deposit; a place containing a mineral deposit.
mineral, n. (ISc) 1. Any natural inorganic matter that
has a definite chemical composition and specific
physical properties that give it value <most minerals are crystalline solids>. [Cases: Mines and Minerals
C:=>48.] 2. A subsurface material that is explored for,
mined, and exploited for its useful properties and com
mercial value. 3. Any natural material that is defined
as a mineral by statute or caselaw.
mineral acre. Oil & gas. The full mineral interest in one
acre ofland. [Cases: Mines and Minerals C:=>47.]
mineral deed. See DEED.
mineral district. See DISTRICT.
mineral easement. See EASEMENT.
mineral entry. (1882) The right of entry on public land
to mine valuable mineral deposits. [Cases: Mines and
Minerals C:=>9-38.]
"It is the policy of the United States, as expressed in Acts
of Congress, to make public lands available to the people
for the purpose of mining valuable mineral deposits, and
to encourage exploration for, and development of, mineral
resources on public lands. Accordingly, the United States
has reserved all lands 'valuable for minerals' ... from
disposition under the nonmineral statutes, and has made
them open to entry for mining purposes, under regulations
prescribed by law .... In other words ... where statute
authorizes the Federal Government to acquire lands,
without indicating that lands are to be acquired for a par
ticular purpose, lands so acquired are public lands subject
to mineral entry." 53A Am. Jur. 2d Mines and Minerals 23,
at 274 (1996).
mineral interest. Oil & gas. The right to search for,
develop, and remove minerals from land or to receive a
royalty based on the production ofminerals . Mineral
interests are granted by an oil-and-gas lease. -Also
termed mineral right. See FEE INTEREST; SUBSURFACE
INTEREST; SURFACE INTEREST. [Cases: Mines and
Minerals C:=>47, 62.1, 73.1.]
mineral land. See LAND.
mineral lease. See LEASE.
mineral lode. (1870) A mineral bed ofrock with definite
boundaries in a general mass ofa mountain; any belt of
mineralized rock lying within boundaries that clearly
separate it from neighboring rock. -Also termed
lode.
"Typically, a lode is a concentration ofvaluable mineral with
boundaries sufficiently distinct to import such a definite
trend, continuity, and apartness to the formation that it can
be traced through the enclosing mass of rock." 1 American
Law ofMining 32.02(2), at 32-7 (2d ed. 1998).
mineral right. See MINERAL INTEREST.
mineral royalty. See ROYALTY (2).
mineral servitude. See SERVITUDE (2).
Minerals Management Service. A unit in the U.S.
Department of the Interior responsible for entering
into and managing leases for the recovery of minerals
on the outer continental shelf and for collecting and
distributing royalty and other payments due the U.S.
and Indian tribes from mineral production. [Cases:
Mines and Minerals C:=>S.I(I).]
minerator (min-Jr-ay-tJr). [Law Latin] A miner.
miner's inch. A measurement of water discharge,
equaling nine-gallons per minute from a one-inch
1085 mining partnership
square pipe. -The precise measurement of a miner's
inch varies in different localities.
Mine Safety and Health Administration. A unit in
the U.S. Department ofLabor responsible for prevent
ing mine accidents and occupational diseases in the
nation's mining industry. -It sets mandatory safety
and health standards, assesses fines for their viola
tion, and investigates mine accidents. Its programs are
operated through regional administrators located in
the nation's mining regions. -Abbr. MSHA. [Cases:
Labor and Employment (>=2634.J
minimal contacts. See MINIMUM CONTACTS.
minimalist retributivism. See RETRIBUTIVISM.
minimal participant. (1987) Criminal law. Under the
federal sentencing guidelines, a defendant who is
among the least culpable ofa group ofcriminal actors,
as when the defendant does not understand the scope
or structure ofthe criminal enterprise or the actions
ofthe other members ofthe group. -The offense level
for a crime ofa minimal participant can be decreased
by four levels. U.S. Sentencing Guidelines Manual
3B1.2(a). Cf. MINOR PARTICIPANT. [Cases: Sentenc
ing and Punishment <>=764.J
minimal scrutiny. See RATIONAL-BASIS TEST.
mini-maxi, n. An underwriting arrangement for a
securities transaction, whereby a broker is required to
sell the minimum number of securities on an all-or
none basis and the balance on a best-efforts basis. See
UNDERWRITING (2).
miniment (min-a-m;mt). See ML'NIMENT.
mini-Miranda requirement. Debtor-creditor law. A
debt collector's obligation when communicating with
a debtor to inform the debtor that (1) the communica
tion is from a debt collector seeking to collect a debt
and (2) any information received will be used for that
purpose. This disclosure is required by the Fair Debt
Collection Practices Act. [Cases: Antitrust and Trade
Regulation
minimization requirement. (1972) Criminal law. The
mandate that police officers acting under an eavesdrop
ping warrant must use the wiretap in a way that will
intercept the fewest possible conversations that are not
subject to the warrant. [Cases: Telecommunications
<>='1473.]
minimum, adj. (17c) Of, relating to, or constituting the
smallest acceptable or possible quantity in a given case
<minimum charge to a customer ofa public utility>.
minimum contacts. (1945) A nonresident defendant's
forum-state connections, such as business activity or
actions foreseeably leading to business activity, that
are substantial enough to bring the defendant within
the forum-state court's personal jurisdiction without
offending traditional notions offair play and substan
tial justice. International Shoe Co. v. Washington, 326
U.S. 310,66 S.Ct. 154 (1945). Also termed minimal
contacts. [Cases: Corporations (:::::>665(1); Courts
12(2.5); Federal Courts (:::::>76.5,79.] minimum-fee schedule. Hist. A list of the lowest fees
that a lawyer may charge, set by a state bar association.
-The courts held that minimum-fee schedules, now
defunct, violated antitrust laws.
minimum lot. See LOT (1).
minimum-royalty clause. Patents. A royalty-agreement
provision that prescribes a fixed payment by the licensee
to the patentee, regardless ofwhether the invention is
actually used. [Cases: Patents (:::::>218(1), (5).]
minimum sale. See EXHIBITION VALUE.
minimum scrutiny. See RATIONAL-BASIS TEST.
minimum sentence. See SENTENCE.
minimum tax. See alternative minimum tax under
TAX.
minimum wage. See WAGE.
mining. The process ofextracting ore or minerals from
the ground; the working of a mine. This term also
encompasses oil and gas drilling.
mining claim. A parcel of land that contains precious
metal in its soil or rock and that is appropriated by
a person according to established rules and customs
known as the process oflocation. See LOCATION (4), (5).
[Cases: Mines and Minerals C=13,28.]
lode claim. A mining claim (on public land) to a well
defined vein embedded in rock; a mining claim to
a mineral lode. [Cases: Mines and Minerals 16,
28.]
placer claim. A mining claim that is not a lode claim;
a claim where the minerals are not located in veins
or lodes within rock, but are usu. in softer ground
near the earth's surface. [Cases: Mines and Minerals
C-=>16,28.]
"'t has long been recognized that the distinction between
lode and placer claims must be tempered by scientific
findings as to the nature of the mineral deposits under
consideration, and the practicalities of modern mining
methods, which may permit the use of surface mining
methods to remove certain lodes or veins of minerals pre
viously only reached by underground methods." 53A Am.
Jur. 2d Mines and Minerals 21, at 273 (1996).
mining lease. See LEASE.
mining location. 1. See LOCATION (4). 2. See LOCATION
(5).
mining partnership. An association of persons to
jOintly share a mining business, including the profits,
expenses, and losses. -The partnership has features of
both a tenancy in common and an ordinary commer
cial partnership. [Cases: Mines and Minerals (;::::>96.J
"It has generally been held that the law governing ordinary
commercial or trading partnerships applies, with a few
exceptions, to mining partnerships. The principal excep
tion and the main distinction between mining partnerships
and commercial partnerships generally is based on the
fact that the principle of delectus personae, meaning the
right of a partner to exercise choice and preference as to
the admission of any new members to the firm, and as to
the persons to be so admitted, does not apply to mining
partnerships ...." 58 c.j.S. Mines and Minerals 387, at
380 (1998).
1086 mining rent
mining rent. Consideration given for a mining lease,
whether the lease creates a tenancy, conveys a fee, or
grants a mere license or incorporeal right. [Cases:
Mines and Minerals 79.]
minister, n. (14c) 1. A person acting under another's
authority; an agent. 2. A prominent government officer
appointed to manage an executive or administrative
department. 3. A diplomatic representative, esp. one
ranking below an ambassador. [Cases: Ambassadors
and Consuls 1-5.]
foreign minister. 1. A minister of foreign affairs, who
in many countries is equivalent to the u.s. Secretary
of State. 2. An ambassador, minister, or envoy from
a foreign government. [Cases: Ambassadors and
Consuls C=>1-5.]
minister plenipotentiary (plen-;)-p;)-ten-shee-er-ee).
A minister ranking below an ambassador but pos
sessing full power and authority as a governmental
representative, esp. as an envoy of a sovereign ruler.
-This officer is often regarded as the personal repre
sentative of a head ofstate.
public minister. A high diplomatic representative such
as an ambassador, envoy, or resident, but not includ
ing a commercial representative such as a consul.
[Cases: Ambassadors and Consuls C=>4.]
4. A person authorized by a Christian church to
perform religiOUS functions. [Cases: Religious Societ
ies
ministerial, adj. (I6c) Of or relating to an act that
involves obedience to instructions or laws instead of
discretion, judgment, or skill <the court clerk's min
isterial duties include recording judgments on the
docket>. Judges
ministerial act. See ACT.
ministerial duty. 1. See ministerial act under ACT. 2. See
DUTY (2).
ministerial-function test. (1990) The principle that the
First Amendment bars judicial resolution ofa Title VII
employment-discrimination claim based on a religiOUS
preference, if the employee's responsibilities are reli
gious in nature, as in spreading faith, supervising a reli
gious order, and the like. 42 USCA 2000e-l(a). See
TITLE Vll OF THE CIVIL RIGHTS ACT OF 1964. [Cases:
Civil Rights 1114, 1163.]
ministerial office. See OFFICE.
ministerial officer. See OFFICER (1).
ministerial trust. See passive trust under TRUST.
minister plenipotentiary. See MINISTER.
ministrant (min-<l-str,mt). 1. One who ministers; a dis
penser. 2. Hist. Eccles. law. A party who cross-examines
a witness.
ministri regis (mi-nis-tn ree-jis). [Latin] Hist. Minis
ters ofthe king . This term was applied to judges and
ministerial officers.
minitrial. (l990) A private, voluntary, and informal form
of dispute resolution in which each party's attorney presents an abbreviated version ofits case to a neutral
third party and to the opponent's representatives, who
have settlement authority. _ The third party may |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.