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mother might be presumed legitimate,
and thus the question whether A or B was the legitimate
son would be attended by opposing presumptions. But in
this aspect the doctrine of presumptions is clouded with
difficulties and leads to much vain speculation and logical
unrealism." John H. Wigmore, A Students' Textbook of the
Law ofEvidence 454 (1935).
disputable presumption. See rebuttable presumption.
dry presumption. A presumption that has no proba
tive value unless the party with the burden of proof
presents evidence to support the presumption. [Cases:
Evidence (:::;:53.]
factual presumption. See presumption offact.
heeding presumption. (1990) A rebuttable presumption
that an injured product user would have followed a
warning label had the product manufacturer provided
one. [Cases: Products Liability inconsistent presumption. See conflicting presump
tion.
irrebuttable presumption. See conclusive presump
tion.
legal presumption. See presumption oflaw.
mandatory presumption. See conclusive presump
tion.
McClanahan presumption. See MCCLANAHA>I PRE
SUMPTION.
mixed presumption. (1838) A presumption containing
elements ofboth law and fact.
Morgan presumption. See MORGAN PRESUMPTION.
natural presumption. (16c) A deduction of one fact
from another, based on common experience. [Cases:
Criminal Law <~=)305.1; Evidence (;:::::>53.J
permissive presumption. (1827) A presumption that a
trier offact is free to accept or reject from a given set
of facts. Also termed permissive inference. [Cases:
Criminal Law (;:::::>306,324; Evidence (;:::::>53,87.]
presumption juris et de jure. See conclusive presump
tion.
presumption ofa quorum. Parliamentary law. The pre
sumption that a quorum, once established, is present
until the chair or a member notices otherwise.
presumption offact. A type of rebuttable presumption
that may be, but as a matter oflaw need not be, drawn
from another established fact or group offacts <the
possessor ofrecently stolen goods is, by presumption
offact, considered the thief>. -Also termed factual
presumption. [Cases: Criminal LawC:::.:;,306.; Evidence
(::::'53,87.]
presumption ofgeneral application. A presumption
that applies across the board to all legislation, as a
result ofwhich lawmakers need not list each such pre
sumption in all bills. [Cases: Criminal Law (:::;:'305;
Evidence
"One function of the word 'presumption' in the context of
statutory interpretation is to state the result of this leg
islative reliance (real o( assumed) on firmly established
legal principles. There is a 'presumption' that mens rea is
required in the case of statutory crimes, and a 'presump
tion' that statutory powers must be exercised reasonably.
These presumptions apply although there is no question
of linguistic ambiguity in the statutory wording under con
struction, and they may be described as 'presumptions of
general application: At the level of interpretation, their
function is the promotion of brevity on the part of the
draftsman. Statutes make dreary enough reading as it is,
and it would be ridiculous to insist in each instance upon an
enumeration of the general principles taken for granted."
Rupert Cross, Statutory Interpretation 142-43 (1976)_
presumption o/innocence. See PRESUMPTION OF INNO
CENCE.
presumption ofintent. (18c) A permissive presumption
that a criminal defendant who intended to commit an
act did so. [Cases: Criminal Law
presumption a/law. (16c) A legal assumption that a
court is required to make ifcertain facts are estab
lished and no contradictory evidence is produced <by
presumption oflaw, a criminal defendant is consid
ered innocent until proven guilty beyond a reasonable
doubt>. -Also termed legal presumption; artificial
presumption; praesumptio juris; pseudopresumption
oflaw. [Cases: Criminal Law C:>305; Evidence C':::'
86.]
presumption of maternity. See PRESUMPTION OF
MATERNITY.
presumption ofnatural and probable consequences.
See PRESUMPTION OF NATURAL AND PROBABLE CON
SEQUENCES.
presumption ofpaternity. See PRESUMPTION OF PATER
NITY.
presumption ofsurvivorship. See PRESUMPTION OF
SURVIVORSHIP.
presumption of validity. See PRESUMPTIONO OF
VALIDITY.
prima jacie presumption. See rebuttable presump
tion.
procedural presumption. A presumption that may be
rebutted by credible evidence. [Cases: Criminal Law
C:>305; Evidence (;::::=-53.]
pseudopresumption oflaw. See presumption oflaw.
rebuttable presumption. (1852) An inference drawn
from certain facts that establish a prima facie case,
which may be overcome by the introduction of
contrary evidence. -Also termed prima faCie pre
sumption; disputable presumption; conditional
presumption; praesumptio juris. Cf. conclusive pre
sumption. [Cases: Criminal Law Evidence
C~89.]
statutory presumption. (1819) A rebuttable or conclu
sive presumption that is created by statute. [Cases:
Criminal Law C':::' 305; Evidence C':::'53.]
Thayer presumption. See THAYER PRESUMPTION.
presumption of death. (18c) A presumption that arises
on the unexpected disappearance and continued
absence of a person for an extended period, commonly
seven years. [Cases: Damages C':::'2.]
presumption-of-fertility rule. See FERTILE-OCTOGE
NARIAN RULE.
presumption-of-identity rule. The common-law rule
that unless there is a specific, applicable statute in
another state, a court will presume that the common
law has developed elsewhere identically with how it has
developed in the court's own state, so that the court
may apply its own state's law. _ Today this rule applies
primarily in Georgia. See Shorewood Packaging Corp.
v. Commercial Union Ins., 865 F. Supp. 1577 (N.D. Ga.
1994). [Cases: Criminal Law (::::> 320; Evidence
80.]
presumption ofinnocence. (18c) Criminal law. The fun
damental principle that a person may not be convicted
ofa crime unless the government proves guilt beyond
a reasonable doubt, without any burden placed on the accused to prove innocence. [Cases: Criminal Law (;::::=
308; Evidence (;::::=-60.]
presumption oflegitimacy. See PRESUMPTION OF PATER
NITY.
presumption of maternity. Family law. The presumption
that the woman who has given birth to a child is both
the genetic mother and the legal mother ofthe child.
Also termed maternity presumption. Cf. PRESUMPTION
OF PATERNITY.
presumption of natural and probable consequences.
(1980) Criminal law. The presumption that mens rea
may be derived from proof ofthe defendant's conduct.
[Cases: Criminal LawC':::"312.]
presumption of paternity. (1829) Family law. The pre
sumption that the father ofa child is the man who (1)
is married to the child's mother when the child was
conceived or born (even though the marriage may have
been invalid), (2) married the mother after the child's
birth and agreed either to have his name on the birth
certificate or to support the child, or (3) welcomed the
child into his home and later held out the child as his
own. Also termed paternity presumption; presump
tion oflegitimacy; legitimacy presumption. See presumed
father under FATHER. [Cases: Children Out-of-Wedlock
C='3.]
presumption of survivorship. (1844) The presumption
that one of two or more victims of a common disaster
survived the others, based on the supposed survivor's
youth, good health, or other reason rendering survivor
ship likely. [Cases: Death
presumption ofvalidity. Patents. The doctrine that the
holder of a patent is entitled to a statutory presump
tion that the patent is valid and that the burden is on a
challenger to prove invalidity. See BORN VALID. [Cases:
Patents C:> 112.1.1
presumptive (pri-zamp-tiv), adj. (15c) 1. Giving reason
able grounds for belief or presumption. 2. Based on a
presumption. [Cases: Criminal Law (;::::=-305.1; Evidence
(:::::53.] presumptively, adv.
presumptive authority. See implied authority under
AUTHORITY (1).
presumptive damages. See punitive damages under
DAMAGES.
presumptive death. See DEATH.
presumptive evidence. See EVIDENCE.
presumptive heir. See heir presumptive under HEIR.
presumptive notice. See implied notice under NOTICE.
presumptive proof. See conditional proof under PROOF.
presumptive sentence. See SENTENCE.
presumptive sentencing. See SENTENCING.
presumptive taker. See TAKER.
presumptive title. See TITLE (2).
presumptive trust. See resulting trust under TRUST.
pret a usage. Civil law. A gratuitous loan for use.
1307 prevention doctrine
pretax, adj. Existing or occurring before the assessment
or deduction of taxes <pretax income>. [Cases: Internal
Revenue (;=3110; Taxation (;=3446.]
pretax earnings. See EARNINGS.
prete-nom (pret-nohm). [French] One who lends his
name.
pretensive joinder. See JOINDER.
preterlegal (pree-t~r-Iee-gal), adj. Rare. Beyond the
range ofwhat is legal; not according to law <preterle
gal customs>.
pretermission (pree-tdr-mish-~n). (lSc) 1. The condition
of one who is pretermitted, as an heir of a testator. 2.
The act of omitting an heir from a will. [Cases: Descent
and Distribution (;=47.]
pretermission statute. See PRETERMITTED-HEIR
STATUTE.
pretermit (pree-tar-mit), vb. (I5c) 1. To ignore or dis
regard purposely <the court pretermitted the consti
tutional question by deciding the case on procedural
grounds>. 2. To neglect, overlook, or omit acciden
tally <the third child was pretermitted in the will>.
Although in ordinary usage sense 1 prevails, in legal
contexts (esp. involving heirs) sense 2 is usual. [Cases:
Descent and Distribution (;=47.]
pretermitted child. See pretermitted heir under HEIR.
pretermitted defense. See DEFENSE (1).
pretermitted heir. See HEIR.
pretermitted-heir statute. (1955) A state law that, under
certain circumstances, grants an omitted heir the right
to inherit a share of the testator's estate, usu. by treating
the heir as though the testator had died intestate.
Most states have a pretermitted-heir statute, under
which an omitted child or spouse receives the same
share of the estate as if the testator had died intestate,
unless the omission was intentional. The majority
rule, and that found in the Uniform Probate Code, is
that only afterborn children that is, children born
after th~ execution of a will receive protection as
pretermitted heirs. Under that circumstance, an infer
ence arises that their omission was inadvertent rather
than purposeful. -Also termed pretermission statute.
[Cases: Descent and Distribution (;=47.]
pretermitted spouse. See pretermitted heir under
HEIR.
pretext (pree-tekst), n. (16c) A false or weak reason or
motive advanced to hide the actual or strong reason
or motive. [Cases: Civil Rights (;=1033(1), 1137.]
pretextual (pree-teks-choo-al), adj.
pretextual arrest. See ARREST.
pretextus (pree-teks-t"s). [Latin] A pretext.
pretium (pree-shee-am). [Latin) Price; value; worth.
pretium affectionis (pree-shee-am ,,-fek-shee-oh-nis).
An enhanced value placed on a thing by the fancy
of its owner, growing out of an attachment for the
specific article and its associations; sentimental value. -This value is not taken as a basis for measuring
damages.
pretium periculi (pree-shee-"m pa-rik-ya-lr). The price
of the risk, such as the premium paid on an insur
ance policy.
pretorial court (pri-tor-ee-"l). See COURT.
pretrial conference. (1938) An informal meeting at
which opposing attorneys confer, usu. with the judge,
to work toward the disposition of the case by discuss
ing matters of evidence and narrowing the issues that
will be tried. See Fed. R. Civ. P. 16; Fed. R. Crim. P. 17.1.
-The conference takes place shortly before trial and
ordinarily results in a pretrial order. -Often short
ened to pretrial. -Also termed pretrial hearing. [Cases:
Federal Civil Procedure (;=1921; Pretrial Procedure
(;=741.]
pretrial detention. See DETENTION.
pretrial discovery. See DISCOVERY.
pretrial diversion. See DIVERSION PROGRAM (1).
pretrial hearing. See PRETRIAL CONFERENCE.
pretrial intervention. 1. DIVERSION PROGRAM (1). 2. See
deferred judgment under JUDGMENT.
pretrial investigation. Military law. An investigation
to decide whether a case should |
See
deferred judgment under JUDGMENT.
pretrial investigation. Military law. An investigation
to decide whether a case should be recommended for
forwarding to a general court-martial. [Cases: Military
Justice (;=921.)
pretrial order. (1939) A court order setting out the
claims and defenses to be tried, the stipulations ofthe
parties, and the case's procedural rules, as agreed to by
the parties or mandated by the court at a pretrial con
ference. See Fed. R. Civ. P. 16(e). -In federal court, a
pretrial order supersedes the pleadings. [Cases: Federal
Civil Procedure C=, 1935; Pretrial Procedure (;=747.)
prevail, vb. (17c) 1. To obtain the relief sought in an
action; to win a lawsuit <the plaintiff prevailed in the
Supreme Court>. 2. To be commonly accepted or pre
dominant <it's unclear which line of precedent will
prevail>.
prevailing party. See PARTY (2).
prevarication (pri-var-a-kay-sh"n), 11. (I6c) The act or
an instance oflying or avoiding the truth; equivoca
tion. prevaricate (pri-var-a-kayt), vb.
prevaricator (pri-var-<l-kay-tar), 11. [Latin] 1. A liar; an
equivocator. 2. Roman law. One who betrays anoth
er's trust, such as an advocate who aids the opposing
party by betraying the client. Also spelled (in sense
2) praevaricator.
prevent, vb. To hinder or impede <a gag order to prevent
further leaks to the press>.
preventative law. See PREVENTIVE LAW.
prevention. Civil law. The right of one of several judges
having concurrent jurisdiction to exercise that jurisdic
tion over a case that the judge is first to hear.
prevention doctrine. (1979) COl1tracts. The principle that
each contracting party has an implied duty to not do
1308 preventive custody
anything that prevents the other party from perform
ing its obligation. -Also termed prevention-of-perfor
mance doctrine. [Cases: Contracts (::::> 168,303(4).]
preventive custody. See CUSTODY (1).
preventive detention. See DETENTION.
preventive injunction. See INJUNCTION.
preventive justice. See JUSTICE (1).
preventive law. A practice oflaw that seeks to minimize
a client's risk oflitigation or secure more certainty with
regard to the client's legal rights and duties. -Empha
sizing planning, counseling, and the nonadversarial
resolution of disputes, preventive law focuses on the
lawyer's role as adviser and negotiator. Also termed
(less correctly) preventative law.
preventive punishment. See PUNISHMENT.
previously taxed income. See INCOME.
previous notice. See NOTICE (6).
previous question. See CLOSE DEBATE.
price. The amount ofmoney or other consideration asked
for or given in exchange for something else; the cost at
which something is bought or sold. [Cases: Contracts
(::::>229(1); Sales C=:) 74.1.]
agreed price. The price for a sale, esp. ofgoods, arrived
at by mutual agreement. Cf. open price. [Cases: Sales
(::::>75.J
arm's-length price. The price at which two unre
lated, unaffiliated, and nondesperate parties would
freely agree to do business. See arm's-length trans
action under TRANSACTloN;fair market value under
VALUE.
asked price. The lowest price at which a seller is willing
to sell a security at a given time. See SPREAD (2).
asking price. Ihe price at which a seller lists property
for sale, often implying a Willingness to sell for less.
Also termed ask price; offering price.
at-the-market price. A retail price that store owners in
the same vicinity generally charge.
bid price. The highest price that a prospective buyer
is willing to pay for a security at a given time. See
SPREAD (2).
call price. 1. The price at which a bond may be retired
before its maturity. [Cases: Corporations C:::;468.1.]
2. See strike price.
ceiling price. 1. The highest price at which a buyer is
willing to buy. 2. The highest price allowed by a gov
ernment agency or by some other regulatory institu
tion. [Cases: War and National Emergency (::::> 108.]
closing price. The price of a security at the end of a
given trading day. -Also termed close.
exercise price. See strike price.
ex-works price. The price of goods as they leave the
factory. See EX WORKS.
fixed price. A price that is agreed upon by a wholesaler
and a retailer for the later sale or resale of an item. _ Agreements to fix prices are generally prohibited by
state and federal statutes.
floor price. The lowest price at which a seller is willing
to sell.
liquidating price. See redemption price.
liquidation price. A price that is paid for property sold
to liquidate a debt. -Liquidation price is usu. below
market price. -Also termed liquidation value.
list price. A published or advertised price of goods;
retail price.
market price. The prevailing price at which something
is sold in a specific market. See fair market value
under VALUE (2).
mean trading price. Securities. The average ofthe daily
trading price ofa security determined at the close of
the market each day during a 90-day period.
netprice. The price ofsomething, after deducting cash
discounts.
offering price. See asking price.
open price. The price for a sale, esp. of goods, that has
not been settled at the time ofa sale's conclusion. UCC
2-305. Cf. agreed price. [Cases: Sales (::::>78.]
predatory price. See PREDATORY PRICING.
putprice. See strike price.
redemption price. 1. The price of a bond that has not
reached maturity, purchased at the issuer's option. 2.
The price ofshares when a mutual-fund shareholder
sells shares back to the fund. -Also termed liqui
dating price; repurchase price. [Cases: Corporations
(::::>468.1.]
reserve price. In an auction, the amount that a seller of
goods stipulates as the lowest acceptable offer. -The
reserve price mayor may not be announced. See WITH
RESERVE; WITHOUT RESERVE.
sales price. The total amount for which property is sold,
often including the costs ofany services that are a part
of the sale. -Under sales-tax statutes, the amount
is typically valued in money even if the value is not
received in money. Also termed selling price.
spot price. The amount for which a commodity is sold
in a spot market.
strike price. Securities. The price for which a security
will be bought or sold under an option contract if
the option is exercised. -Also termed striking price;
exercise price; call price; put price. See OPTION.
subscription price. See SUBSCRIPTION PRICE.
suggested retail price. The sales price recommended to
a retailer by a manufacturer of the product.
support price. A minimum price set by the federal
government for a particular agricultural commod
ity. [Cases: Agriculture (::::>3.5.J
target price. A price set by the federal government for
particular agricultural commodities. -Ifthe market
price falls below the target price, farmers receive a
subsidy from the government for the difference.
[Cases: Agriculture (;::::>3.5.]
trade price. The price at which a manufacturer or
wholesaler sells to others in the same business or
industry.
transfer price. The price charged by one segment of
an organization for a product or service supplied to
another segment of the same organization; esp., the
charge assigned to an exchange ofgoods or services
between a corporation's organizational units.
unit price. A price of a food product expressed in a
well-known measure such as ounces or pounds.
upset price. The lowest amount that a seller is willing to
accept for property or goods sold at auction. [Cases:
Auctions and Auctioneers
wholesale price. The price that a retailer pays for goods
purchased (usu. in bulk) from a wholesaler for resale
to consumers at a higher price.
price amendment. Securities. A change in a registration
statement, prospectus, or prospectus supplement affect
ing the offering price, the underwriting and selling dis
counts or commissions, the amount of proceeds, the
conversion rates, the call prices, or some other matter
relating to the offering price.
price!cost analysis. A technique of determining, for anti
trust purposes, whether predatory pricing has occurred
by examining the relationship between a defendant's
prices and either its average variable cost or its average
total cost.
price discrimination. (1915) The practice of offering
identical or similar goods to different buyers at differ
ent prices when the costs of producing the goods are
the same. Price discrimination can violate antitrust
laws if it reduces competition. It may be either direct,
as when a seller charges different prices to different
buyers, or indirect, as when a seller offers special con
cessions (such as favorable credit terms) to some but
not all buyers. [Cases; Antitrust and Trade Regulation
(;::::>,839.J
persistent price discrimination. A monopolist's sys
tematic policy ofobtaining different rates of return
from different sales groupings.
price-earnings ratio. The ratio between a stock's current
share price and the corporation's earnings per share
for the last year . Some investors avoid stocks with
high price-earnings ratios because those stocks may
be overpriced. -Abbr. PIE ratio. Cf. earnings yield
under YIELD.
price-erosion theory. Patents. A theory oflost-profits
remedy that measures the difference between what an
item could have sold for with patent protection and
what it actually sold for while having to compete against
an infringing item. [Cases: Patents (;::::>318(3).]
price expectancy. See EXHIBITION VALUE.
price-fixing. (l889) The artificial setting or maintenance
of prices at a certain level, contrary to the workings under antitrust law. See FIX (3). [Cases: Antitrust and
Trade Regulation (;::::>821.]
"Price-fixing agreements mayor may not be aimed at
complete elimination of price competition. The group
making those agreements mayor may not have the power
to control the market. But the fact that the group cannot
control the market prices does not necessarily mean that
the agreement as to prices has no utility to the members
of the combination. The effectiveness of price-fixing agree
ments is dependent on many factors, such as competitive
tactics, pOSition in the industry, the formula underlying
price policies. Whatever economic justification particular
price-fixing agreements may be thought to have, the law
does not permit an inquiry into their reasonableness. They
are all banned because oftheir actual or potential threat to
the central nervous system of the economy." United States
v. Socony-Vawum Oil Co., 310 U.S. 150,225-26 n.59, 60
5.Ct. 811, 845 n.59 (1940).
horizontal price-fixing. (1935) Price-fixing among
competitors on the same level, such as retailers
throughout an industry. [Cases: Antitrust and Trade
Regulation (;;::;822.]
vertical price-fixing. (1936) Price-fixing among parties
in the same chain ofdistribution, such as manufac
turers and retailers attempting to control an item's
resale price. [Cases: Antitrust and Trade Regulation
C:>821.]
price index. An index ofaverage prices as a percentage
of the average prevailing at some other time (such as
a base year). See CONSUMER PRICE INDEX; PRODUCER
PRICE INDEX.
price leadership. (1942) A market condition in which
an industry leader establishes a price that others in the
field adopt as their own . Price leadership alone does
not violate antitrust laws without other evidence ofan
intent to create a monopoly.
price-level-adjusted mortgage. See MORTGAGE.
price memorandum. Securities. A document created by
an underwriter to explain how securities are priced for
a public offering and, typically, to show estimates and
appraisals that are not allowed as part of the offering
documents.
price-renegotiation clause. Oil 6-gas. A provision in a
gas contract allowing for price renegotiation from time
to time or upon election of one of the parties.
price squeeze. Antitrust. Discriminatory pricing prac
ticed by a manufacturer or distributor who also supplies
materials or products to a competitor, and charges a
high wholesale price in an attempt to reduce or elimi
nate a competitor's ability to make a retail profit. [Cases:
Antitrust and Trade Regulation (;::::>8l1.]
price support. (1927) The artificial maintenance of prices
(as of a particular commodity) at a certain level, esp.
by governmental action (as by subsidy). [Cases; Agri
culture (;::::>3.5.]
price war. (1895) A period of sustained or repeated
price-cutting in an industry (esp. among retailers),
deSigned to undersell competitors or force them out
ofbusiness.
of the free market. Price-fixing is usu. illegal per se i priest-penitent privilege. See PRIVILEGE (3).
primae impressionis (pn-mee im-pres[b)-ee-oh-nis).
[Law Latin) Of the first impression. See case offirst
impression under CASE.
primae preces. See PRECES PRIMARIAE.
prima facie (pn-ma fay-sha orfay-shee), adv. [Latin] (l5c)
At first sight; on first appearance but subject to further
evidence or information <the is prima facie
valid>. [Cases: Evidence 584(1).] |
to further
evidence or information <the is prima facie
valid>. [Cases: Evidence 584(1).]
prima fade, adj. (18c) Sufficient to establish a fact or
raise a presumption unless disproved or rebutted <a
prima facie showing>.
prima fade case. (1805) I. The establishment ofa legally
required rebuttable presumption. [Cases: Evidence (;::=,
53,85.) 2. A party's production of enough evidence to
allow the fact-trier to infer the fact at issue and rule in
the party's favor. [Cases: Evidence (;;:)584(1).)
prima fade evidence. See EVIDENCE.
prima fade presumption. See rebuttable presumption
under PRES{;MPTION.
prima fade privilege. See qualified immunity under
IMMlJNITY (1).
prima fade tort. See TORT.
primage (pn-mij). See HAT MONEY.
primary, n. See primary election under ELECTION (3).
primary activity. Labor law. Concerted action (such
as a strike or picketing) directed against an employer
with which a union has a dispute. Cf. SECONDARY
ACTIVITY.
primary agent. See AGENT (2).
primary allegation. See ALLEGATION.
primary amendment. See AMENDMENT (3).
primary assumption of the risk. See ASSUMPTION OF
THE RISK.
primary authority. See AUTHORITY (4).
primary beneficiary. See BENEFICIARY.
primary boycott. See BOYCOTT.
primary caregiver. Family law. 1. The parent who has
had the greatest responsibility for the daily care and
rearing of a child. See TENDER-YEARS DOCTRINE; PRI
MARY-CAREGIVER DOCTRINE. [Cases: Child Custody
G---= 44, 459.] 2. The person (induding a nonparent) who
has had the greatest responsibility for the daily care and
rearing of a child. Also termed primary caretaker.
primary-caregiver doctrine. Family law. 1he presump
tion that, in a custody dispute, the parent who is a child's
main caregiver will be the child's custodian, assuming
that he or she is a fit parent. This doctrine includes
the quality and the quantity ofcare that a parent gives
a child -but excludes supervisory care by others while
the child is in the parent's custody. Under this doctrine,
courts sometimes divide children into three age groups:
those under the age of 6, those 6 to 14, and those 14
and older. For children under the age of6, an absolute
presumption exists in favor of the primary caretaker as custodian. For those 6 to 14, the trial court may
hear the child's preference on the record but without
the parents being present. For those 14 and older, the
child may be allowed to choose which parent will be the
custodian, assuming that both parents are fit. Also
termed primary-caretaker doctrine; primary-caregiver
presumption; primary-caretaker presumption; primary
caregiver preference. Cf. MATERN AL-PREFERENCE PRE
SUMPTION; TENDER-YEARS DOCTRINE. [Cases: Child
Custody (;::='44,459.]
primary caretaker. See PRIMARY CAREGIVER.
primary cause. See proximate cause under CAUSE (1).
primary committee. Bankruptcy. A group of creditors
organized to help the debtor draw up a reorganization
plan. [Cases: BankruptcyC:~)3024.]
primary conveyance. See CONVEYANCE.
primary devise. See DEVISE.
primary domiciliary parent. See PARENT.
primary-duty doctrine. Maritime law. The principle that
a seaman cannot recover damages if the injury arose
from an unseaworthy condition created by the seaman's
breach of duty. [Cases: Seamen (;::=,29(4).]
primary election. See ELECTION (3).
primary evidence. See best evidence under EVIDENCE.
primary fact. See FACT.
primary insurance. See INSURANCE.
primary insured. See INSURED.
primary insurer. See INSURER.
primary jurisdiction. See JURISDICTION.
primary-jurisdiction doctrine. A judicial doctrine
whereby a court tends to favor allowing an agency an
initial opportunity to decide an issue in a case in which
the court and the agency have concurrent jurisdiction.
See primary jurisdiction under JURISDICTION. [Cases:
Administrative Law and Procedure (;::=,228.1.]
primary lease. See HEADLEASE.
primary liability. See LIABILITY.
primary-line competition. See horizontal competition
under COMPETITION.
primary-line injury. Antitrust. Under the price-dis
crimination provisions of the Robinson-Patman Act,
the practice of charging below-cost, predatory prices
in an attempt to eliminate the seller's competition in
the market. 15 USCA 13(a). A primary-line injury,
which hinders or seeks to hinder competition among
the seller's competitors, is distinguishable from a sec
ondary-line injury, which refers to discriminatory
pricing that hinders or seeks to hinder competition
among the seller's customers, by favoring one customer
over another in the prices the seller charges. Cf. SEC
ONDARY-LINE INJURY.
"liggett contends that Brown & Williamson's discriminatory
volume rebates to wholesalers threatened substantial com
petitive injury by furthering a predatory pricing scheme
designed to purge competition from the economy segment
1311 primogenitureship
of the cigarette market. This type of injury, which harms
direct competitors of the discriminating seller, is known
as a primary-line injury." Brooke Group Ltd. v. Brown & Wil
liamson Tobacco Corp., 509 u.s. 209, 220, 113 S.Ct. 2578,
2586 (1993).
primary market. See MARKET.
primary mortgage market. See MORTGAGE MARKET.
primary obligation. See OBLIGATION.
primary offering. See OFFERING.
primary officer. See principal officer under OFFICER
(1).
primary plea. See primary allegation under ALLEGA
TION.
primary powers. (1864) The chief powers given by a prin
cipal to an agent to accomplish the agent's tasks. Cf.
MEDIATE POWERS.
primary purpose or effect. Copyright. The main reason
for or consequence of using a product, as a test for
whether its sale amounts to contributory infringement.
-The Supreme Court rejected the test in a landmark
copyright case, but four justices said that ifthe primary
purpose or effect ofthe product's sale or use infringes
the copyrights of others, its manufacturer could be
enjoined from selling the product or required to pay
a reasonable royalty to the copyright owners. Sony
Corp. ofAm. v. Universal City Studios, Inc., 464 U.S.
417,457-500, 104 S.Ct. 774, 796-818 (1984) (Blackmun,
J., dissenting). Cf. COMMERCIALLY SIGNIFICANT NON
INFRINGING USE.
primary receiver. See principal receiver under
RECEIVER.
primary reserve ratio. See RESERVE RATIO.
primary residential responsibility. See RESIDENTIAL
RESPONSIBILITY.
primary right. See RIGHT.
primary term. Oil & gas. The option period set by
the habendum clause in an oil-and-gas lease during
which the lessee has the right to search, develop, and
produce from the property. _ The primary term should
be long enough to allow the lessee to evaluate the
property and make arrangements to drill. In practice,
the primary term may extend for 24 hours or 25 years,
depending on how much competition there is for leases
in the area. See HABENDUM CLAUSE. Cf. SECONDARY
TERM. [Cases: Mines and Minerals (;;:>73.5,78.1(9).]
primate (prJ-mit). A chief ecclesiastic; an archbishop or
bishop having jurisdiction over other bishops within
a province.
prime, n. See prime rate under INTEREST RATE.
prime, vb. To take priority over <Watson's preferred
mortgage primed Moriarty's lien>.
prime contractor. See general contractor under CON
TRACTOR.
prime cost. See COST (1). prime lending rate. See prime rate under INTEREST
RATE.
prime maker. See MAKER.
prime minister. (often cap.) The chiefexecutive ofa par
liamentary government; the head ofa cabinet. -Abbr.
PM.
primer (prim-Jr orprJ-mJr). [Law French] First; primary
<primer seisin>.
prime rate. See INTEREST RATE.
primer election. A first choice; esp., the eldest copar
cener's pick of land on division of the estate. See
ELECTION.
primer fine (prim-;>r or prJ-mJr fm). [Latin] Hist. A
fee payable to the Crown on the suing out of a writ of
praecipe to begin a conveyance by fine. See FINE (1).
Also termed praefine.
primer seisin. See SEISIN.
prime serjeant. See premier serjeant under SERJEANT
AT-LAW.
prime tenant. See TENANT.
primitiae (pri-mish-ee-ee). [fro Latin primus "first"] See
FIRST FRl7ITS (2). -primitial (pri-mish-;>l), adj.
primitive obligation. See OBLIGATION.
primo fronte (prJ-moh fron-tee). [Latin] Hist. At first
Sight.
primogeniture (pn-mJ-jen-J-chJr). (I5c) 1. The state
of being the firstborn child among siblings. 2. The
common-law right ofthe firstborn son to inherit his
ancestor's estate, usu. to the exclusion of younger
siblings. -Also termed (in sense 2) primogenitureship.
See BOROUGH ENGLISH. [Cases: Descent and Distribu
tion
"If by primogeniture we only mean 'that the male issue
shall be admitted before the female, and that, when there
are two or more males in equal degrees, the eldest only
shall inherit, but the females "all together'" [Blackstone's
definitionl. then ancient records may indeed contain but
scant references. But primogeniture embraces all the cases
of single inheritance, and may indeed be defined as the
prerogative enjoyed by an eldest son or occasionally an
eldest daughter, through law or custom, to succeed to their
ancestor's inheritance in preference to younger children.
Nay, we might even make it more comprehensive, extend
ing it to all cases of single succession depending upon
priority in birth." Radhabinod Pal, The History of the Law
ofPrimogeniture 11 (1929).
"We might note here, parenthetically, that the English pref
erence for single-file male descent that is, the system
of descent known as primogeniture was never cordially
received in this country. Our statutes of descent and distri
bution uniformly provide for sons' and daughters' sharing
the inheritance equally. Although this seems a fairer
method than primogeniture, which was finally abolished
in Britain with the 1925 reforms. the descent of property
to an ever-expanding group of heirs can seriously compli
cate the clearing of old titles." Thomas F. Bergin &Paul G.
Haskell, Preface to Estates in Land and Future Interests 9
(2d ed_ 1984).
primogenitnreship. See PRIMOGENITURE (2).
1312 prim%co
primo loco (prJ-moh loh-koh). [Latin] Hist. In the first
place.
primo venienti (prJ-moh ven-ee-en-tr). [Latin] To the
one first coming . This refers to the former practice by
estate executors ofpaying debts as they were presented
without regard to whether the estate had enough assets
to pay all the debts.
primum decretum (prI-m;lm di-kree-t;lm). [Latin "first
decree"] 1. Hist. Eccles. law. A preliminary decree
granted in favor of the plaintiff on the nonappearance
ofa defendant. 2. Maritime law. A provisional decree.
princeps (prin-seps), n. [Latin] Roman law. A leading
person, esp. the emperor.
principal, adj. Chief; primary; most important.
principal, n. (14c) 1. One who authorizes another to act
on his or her behalf as an agent. Cf. AGENT (2). [Cases:
Principal and Agent <>1, 130.]
apparent principal. A person who, by outward mani
festations, has made it reasonably appear to a third
person that another is authorized to act as the person's
agent. [Cases: Principal and Agent <>99.]
disclosed principal. (1858) A principal whose identity
is revealed by the agent to a third party. A disclosed
principal is always liable on a contract entered into
by the agent with the principal's authority, but the
agent is usu. not liable. [Cases: Principal and Agent
<>92-137.]
partially disclosed principal. (1934) A principal whose
existence -but not actual identity -is revealed by
the agent to a third party. [Cases: Principal and Agent
<>138-146.]
undisclosed principal. (1835) A principal whose
identity is kept secret by the agent; a principal for
whom the other party has no notice that the agent
is acting. An undisclosed principal and the agent
are both liable on a contract entered into by the agent
with the principal's authority. [Cases: Principal and
Agent <>138-146.]
2. One who commits or participates in a crime. Cf.
ACCESSORY (2); ACCOMPLICE (2). [Cases: Criminal Law
<>59-67.]
"The student should notice that in criminal law the word
'principal' suggests the very converse of the idea which
it represents in mercantile law. In the former, as we have
seen, an accessory proposes an act, |
the idea which
it represents in mercantile law. In the former, as we have
seen, an accessory proposes an act, and the 'principal'
carries it out. But in the law of contract, and in that of
tort, the 'principal' only authorizes an act, and the 'agent'
carries it out. Where the same transaction is both a tort and
a crime, this double use of the word may cause confusion.
For example, if, by an innkeeper's directions, his chamber
maid steals jewels out of a guest's portmanteau, the maid
is the 'principal' in a crime, wherein her master is an acces
sory before the fact; whilst she is also the agent in a tort,
wherein her master is the 'principal'." J.w. Cecil Turner,
Kenny's Outlines ofCriminal Law 89 (16th ed. 1952).
principal in the first degree. (18c) The perpetrator ofa
crime. -Also termed first-degree principal. [Cases:
Criminal Law <>61, 78.]
"By a principal in the first degree, we mean the actual
offender -the man in whose guilty mind lay the latest blamable mental cause of the criminal act. Almost always,
of course, he will be the man by whom this act itself was
done. But occasionally this will not be so; for the felony
may have been committed by the hand of an innocent
agent who, having no blamable intentions in what he did,
incurred no criminal liability by doing it. In such a case the
man who instigates this agent is the real offender; his was
the last mens rea that preceded the crime, though it did
not cause it immediately but mediately." J.w. Cecil Turner,
Kenny's Outlines ofCriminal Law 85-86 (16th ed. 1952).
principal in the second degree. (18c) One who helped
the perpetrator at the time of the crime. -Also
termed accessory at the fact; second-degree principal.
See ABETTOR. [Cases: Criminal Law <>63, 78.]
''The distinction between principals in the first and second
degrees is a distinction without a difference except in those
rare instances in which some unusual statute has provided
a different penalty for one of these than for the other. A
principal in the first degree is the immediate perpetrator
of the crime while a principal in the second degree is one
who did not commit the crime with his own hands but was
present and abetting the principal. It may be added, in the
words of Mr.Justice Miller, that one may perpetrate a crime,
not only with his own hands, but 'through the agency of
mechanical or chemical means, as by instruments, poison
or powder, or by an animal, child, or other innocent agent'
acting under his direction." Rollin M. Perkins & Ronald N.
Boyce, Criminal Law 736 (3d ed. 1982) (quoting Beausoliel
v. United States, 107 F.2d 292, 297 (D.C. Cir. 1939)).
3. One who has primary responsibility on an obligation,
as opposed to a surety or indorser. 4. The corpus ofan
estate or trust. [Cases: Trusts <>1.]5. The amount ofa
debt, investment, or other fund, not including interest,
earnings, or profits.
principal action. See main demand under DEMAND (1).
principal challenge. See CHALLENGE (2).
principal contract. See CONTRACT.
principal covenant. See COVENANT (1).
principal creditor. See CREDITOR.
principal demand. See main demand under DEMAND
(1).
principal fact. 1. See fact in issue under FACT. 2. See
ultimate fact under FACT.
principal in the first degree. See PRINCIPAL (2).
principal in the second degree. See PRINCIPAL (2).
principalis (prin-s;l-pay-lis), adj. [Latin] Principal, as in
principalis debitor ("principal debtor").
principal motion. See main motion under MOTION (2).
principal obligation. See primary obligation (2) under
OBLIGATION.
principal obligor. See OBLIGOR.
principal officer. See OFFICER (1).
principal place ofbusiness. See PLACE OF BUSINESS.
principal receiver. See RECEIVER.
Principal Register. Trademarks. The list of distinctive
marks approved for federal trademark registration.
The register is maintained by the U.S. Patent and
Trademark Office. Only marks that are strong, dis
tinctive, and famous are listed. 15 USCA 1052. Cf.
1313 prior lien
SUPPLEMENTAL REGISTER. [Cases: Trademarks
1245.]
principal right. See RIGHT.
principle, n. A basic rule, law, or doctrine.
principle offinality. See FINALITY DOCTRINE.
principle oflegality. See LEGALITY (2).
principle of nonintervention. See NONINTERVENTION.
principle of retribution. See LEX TALIONIS.
print. 1. Copyright. The impression made in a material
by a die, mold, stamp, or the like; a distinctive stamped
or printed mark or design. 2. FINGERPRINT.
printed-matter doctrine. Patents. The rule that printed
matter may not be patented unless it is a physical part of
a patentable invention . For example, the doctrine has
been used to deny patents for systems of representing
sheet music and for methods ofcompiling directories.
But it cannot be used to deny a patent for computer
software. [Cases: Patents G~5.]
Printers Ink Statute. A model statute drafted in 1911
and adopted in a number of states making it a misde
meanor to print an advertisement that contains a false
or deceptive statement.
prior, adj. (17c) 1. Preceding in time or order <under
this court's prior order>. 2. Taking precedence <a prior
lien>.
prior, n. (1919) Criminal law. Slang. A previous convic
tion <because the defendant had two priors, the judge
automatically enhanced his sentence>.
prior-acts coverage. Insurance. A claims-made profes
sional-liability policy indorsement that makes the effec
tive date retroactive and extends the policy's protection
to claims made and lawsuits filed during the policy
period for negligent acts that occurred before the policy
was actually purchased. -Also termed nose coverage.
Cf. TAIL COVERAGE. [Cases: Insurance (:::::)2266.)
prior and persistent offender. See RECIDIVIST.
prior-appropriation doctrine. (1959) The rule that,
among the persons whose properties border on a
waterway, the earliest users ofthe water have the right
to take a'n they can use before anyone else has a right
to it. Cf. RIPARIAN-RIGHTS DOCTRINE. [Cases: Waters
and Water Courses (:::::) 140.]
prior art. See ART.
prior-claim rule. The principle that before suing for a
tax refund or abatement, a taxpayer must first assert the
claim to the Internal Revenue Service. [Cases: Internal
Revenue (;::;:>5003.]
prior consistent statement. See STATEMENT.
prior creditor. See CREDITOR.
prior-exclusive-jurisdiction doctrine. The rule that a
court will not assume in rem jurisdiction over property
that is already under the jurisdiction ofanother court
ofconcurrent jurisdiction.
prior inconsistent statement. See STATEMENT. priori petenti (pn-or-I p<l-ten-tI). [Latin "to the first
person applying"] Wills & estates. The principle that
when two or more persons are equally entitled to
administer an estate, the court will appoint the person
who applies first.
priority. (15c) 1. The status of being earlier in time or
higher in degree or rank; precedence. 2. Commercial
law. An established right to such precedence; esp., a
creditor's right to have a claim paid before other credi
tors of the same debtor receive payment. [Cases: Secured
Transactions 138-145.] 3. The doctrine that, as
between two courts, jurisdiction should be accorded
the court in which pr~ceedings are first begun. [Cases:
Courts 493,514; Federal Courts C-=1145.] 4.
Patents & Trademarks. The status ofbeing first to invent
something (and therefore be potentially eligible for
patent protection)or to use a mark in trade (and there
fore be potentially eligible for trademark registration).
[Cases: Patents (;::;:>90; Trademarks (;::;:> 1137)
priority ofadoption. Trademarks. Priority in designing
or creating a trademark . Priority of adoption does
not in itself confer the right to exclusive use ofa mark
ifsomeone else was first to use it in commerce. -Also
termed priority ofappropriation; priority ofinvention.
Cf. priority ofuse. [Cases: Trademarks <r'= 1131.)
priority ofappropriation. Trademarks. See priority of
adoption.
priority ofinvention. 1. Patents. The determination
that one among several patent applications, for sub
stantially the same invention, should receive the
patent when the U.S. Patent and Trademark Office has
declared interference . This determination depends
on the date of conception, the date of reduction to
practice, and diligence. [Cases: Patents (;::;:>90, 106.]
2. Trademarks. See priority ofadoption.
priority ofuse. Trademarks. Priority in using a mark
in actual commerce. The priority of use, not the
priority of adoption, determines who has the right
to protection. Cf. priority ofadoption. [Cases: Trade
marks G)1137.J
priority award. Patents. A final judgment by the U.S.
Patent and Trademark Office designating one party in
an interference contest as the first inventor. -Also
termed award in interference.
priority claim. See CLAIM (5).
priority contest. See INTERFERENCE (3).
priority date. See DATE.
priority-jurisdiction rule. See FIRST-TO-FILE RULE.
priority lien. See prior lien under LIEN.
priority of liens. The ranking of liens in the order in
which they are perfected.
prior laesit (prI-<lr lee-sit). [Law Latin] Scots law. He
(or she) first injured . The phrase usu. referred to the
provocation for an assault.
prior lien. See LIEN.
1314 prior petens
prior petens (prI-dr pet-enz). [Latin] The person first
applying.
prior preferred stock. See STOCK.
prior publication. Patents. Public disclosure ofthe basis
for or existence of an invention, made before filing a
patent application for the invention. _ Ifthe publica
tion was made more than a year before the applica
tion is filed, the patent is barred by statute. Publication
occurs when the information is made available to any
member of the general public. See limited publication
under PUBLICATION. [Cases: PatentsC=67.]
prior-relationship rape. See relationship rape under
RAPE.
prior restraint. (1833) A governmental restriction on
speech or publication before its actual expression.
Prior restraints violate the First Amendment unless
the speech is obscene, is defamatory, or creates a clear
and present danger to society. [Cases: Constitutional
Law C=1525.]
'The legal doctrine of prior restraint (or formal censor
ship before publication) is probably the oldest form of
press control. Certainly it is one of the most effiCient,
since one censor, working in the watershed, can create a
drought of information and ideas long before they reach
the fertile plain of people's minds. In the United States,
the doctrine of prior restraint has been firmly opposed
by the First Amendment to the Constitution, and by the
Supreme Court, perhaps most notably in the case of Near
v. Minnesota, decided in 1931. But the philosophy behind
that doctrine lives zestfully on, and shows no signs of infir
mities of age." David G. Clark & Earl R. Hutchinson, Mass
Media and the Law II (1970).
prior sale. Patents. Sale or offer of sale of an invention
before a patent is applied for. -Ifthe sale occurred
more than one year before the application is filed, the
patent is barred by statute. 35 USCA 102(b). [Cases:
Patents
prior sentence. See SENTENCE.
prior-use bar. See PUBLIC-USE BAR.
prior-use doctrine. (1856) The principle that, without
legislative authorization, a government agency may not
appropriate property already devoted to a public use.
[Cases: Eminent Domain c...~47.1
prior-user right. Patents. The right of a first inventor
to continue using an invention after someone else has
patented it. This right protects first inventors in most
countries from the harsh effects ofa first-to-file system.
[Cases: Patents ~-:>90(1).1
prisage (prJ-zij). Hist. A royal duty on wine imported
into England. -Prisage was replaced by butlerage in
the reign of Edward I. Cf. BUTLERAGE.
prise1en auter lieu (prI-z;l1 awn oh-tayl-yoo). [Law
French "a taking in another place"] A plea in abate
ment in a replevin action.
prison. (bef. 12c) A state or federal facility of confine
ment for convicted criminals, esp. felons. -Also
termed penitentiary; penal institution; adult correc
tional institution. Cf. JAIL. [Cases: Prisons ~::>213.J private prison. (1865) A prison that is managed by
a private company, not by a governmental agency.
[Cases: Prisons C= 12.]
prison breach. (17c) A prisoner's forcible breaking and
departure from a place of lawful confinement; the
off |
(17c) A prisoner's forcible breaking and
departure from a place of lawful confinement; the
offense of escaping from confinement in a prison or jail.
Prison breach has traditionally been distinguished
from escape by the presence offorce, but some jurisdic
tions have abandoned this distinction. -Also termed
prison breaking; breach ofprison. Cf. ESCAPE (2). [Cases:
Escape (>::)4.J
"Breach of prison by the offender himself, when commit
ted for any cause, was felony at the common law: or even
conspiring to break it. But this severity is mitigated by the
statute de frangentibus prisonam, I Edw. II, which enacts
that no person shall have judgment of life or member,
for breaking prison, unless committed for some capital
offence. So that to break prison, when lawfully committed
for any treason or felony, remains still a felony as at the
common law; and to break prison, when lawfully confined
upon any other inferior charge, is still punishable as a
high misdemeanor by fine and imprisonment." 4 William
Blackstone, Commentaries on the Laws ofEngland 130-31
(1769).
prison camp. (1864) A usu. minimum-security camp for
the detention of trustworthy prisoners who are often
employed on government projects.
prisoner. 1. A person who is serving time in prison. 2.
A person who has been apprehended by a law-enforce
ment officer and is in custody, regardless of whether the
person has yet been put in prison. Cf. CAPTIVE (1).
"While breach of prison, or prison breach, means breaking
out of or away from prison, it is important to have clearly
in mind the meaning of the word 'prison.' If an officer
arrests an offender and takes him to jail the layman does
not think of the offender as being 'in prison' until he is
safely behind locked doors, but no one hesitates to speak
of him as a 'prisoner' from the moment of apprehension.
He is a prisoner because he is 'in prison ... whether he
were actually in the walls of a prison, or only in the stocks,
or in the custody of any person who had lawfully arrested
him ....., Rollin M. Perkins & Ronald N. Boyce, Criminal
Law 566 (3d ed. 1982) (quoting 2 Hawk. P.c. ch. 18, I
(6th ed. 1788)).
prisoner at the bar. (16c) Archaic. An accused person
who is on trial.
prisoner of conscience. Human-rights law. A person
who is imprisoned because of his or her beliefs, race,
sex, ethnic origin, language, or religion. -The range
ofbeliefs" that fall within this definition is not settled
but may include political ideologies and objections to
military service, esp. in wartime.
prisoner ofwar. A person, usu. a soldier, who is captured
by or surrenders to the enemy in wartime. Also
termed captive. Abbr. POW. [Cases: War and
National Emergency C=11.]
prisoner's dilemma. A logic problem often used by
law-and-ecol1omics scholars to illustrate the effect of
cooperative behavior -involVing two prisoners who
are being separately questioned about their participa
tion in a crime: (1) ifboth confess, they will each receive
a 5-year sentence; (2) if neither confesses, they will each
receive a 3-year sentence; and (3) if one confesses but
1315
the other does not, the confessing prisoner will receive
a I-year sentence while the silent prisoner will receive
a lO-year sentence. See EXTERNALITY.
Prison Litigation Reform Act. A federal statute designed
to reduce the number offrivolous lawsuits and petitions
filed by prisoners and to reduce the power of federal
courts over state prison systems. 110 Stat. 1321-66
1321-77 (1996).
prist (prist). [Law French] Hist. Ready. -In oral pleading,
this term was used to express a joinder ofissue.
privacy. The condition or state ofbeing free from public
attention to intrusion into or interference with one's
acts or decisions.
autonomy privacy. An individual's right to control his
or her personal activities or intimate personal deci
sions without outside interference, observation, or
intrusion. Ifthe individual's interest in an activity
or decision is fundamental, the state must show a com
peling public interest before the private interest can
be overcome. If the individual's interest is acknowl
edged to be less than fundamental or is disputed, then
a court must apply a balancing test. Hill v. NCAA, 865
P.2d 633, 653, 654 (Cal. 1994). [Cases: Constitutional
Law (;:::> 1210-1275.]
informational privacy. Tort. A private person's right to
choose to determine whether, how, and to what extent
information about oneselfis communicated to others,
esp. sensitive and confidential information. [Cases:
Constitutional Law C~)1227.]
privacy, invasion of. See INVASION OF PRIVACY.
privacy, right of. See RIGHT OF PRIVACY.
privacy act. See PRIVACY LAW (1).
Privacy Act of 1974. An act that regulates the govern
ment's creation, collection, use, and dissemination of
records that can identify an individual by name, as well
as other personal information. 18 USCA 552a. [Cases:
Records (;:::>31.]
privacy law. (1936) 1. A federal or state statute that
protects a person's right to be left alone or that restricts
public access to personal information such as tax
returns and medical records. Also termed privacy
act. [Cases: Records C=>3L] 2. The area oflegal studies
dealing with a person's right to be left alone and with
restricting public access to personal information such
as tax returns and medical records.
privacy privilege. See PRIVILEGE (3).
privata delicta (prr-vay-tJ di-lik-tJ). [Latin] Roman
law. Private wrongs; torts. See DELICT. Cf. PUBLICA
DELICTA.
privatae leges (prJ-vay-tee lee-jeez). [Law Latin] Scots
law. Personal laws . These were laws, such as a pardon,
that affected a single individual, not a class of people.
private, adj. (14c) 1. Relating or belonging to an individ
ual, as opposed to the public or the government. 2. (Of
a company) not having shares that are freely available i private international law
private act. See special statute under STATUTE.
private action. See civil action under ACTION (4).
private adoption. See ADOPTION.
private agent. See AGENT (2).
private annuity. See ANNUITY.
private attorney. See ATTORNEY (1).
private-attorney-general doctrine. The equitable prin
ciple that allows the recovery of attorney's fees to a
party who brings a lawsuit that benefits a significant
number of people, requires private enforcement, and
is important to society as a whole. [Cases: Costs
194.42; Federal Civil Procedure (;:::>2737.2.]
private bank. See BANK.
private benefit. Tax. The use of a tax-exempt organi
zation's assets primarily to further the interests of a
private individual or entity, rather than for a public
interest. Under most circumstances, this type of
benefit is prohibited. See IRC (26 USCA) 501(c)(3).
Cf. private inurement under INUREMENT.
qualitatively incidental private benefit. A permis
sible private benefit arising from circumstances
under which a benefit to the public cannot be
achieved without necessarily also benefiting a private
interest.
quantitatively incidental private benefit. A permis
sible private benefit that is a necessary but insubstan
tial concomitant to a public benefit.
private bill. See BILL (3).
private boundary. See BOUNDARY.
private brand. See BRAND.
private carrier. See CARRIER.
private contract. See CONTRACT.
private corporation. See CORPORATION.
private delict. See DELICT.
private easement. See EASEMENT.
privateer (pn-vJ-teer), n. 1. A vessel owned and operated
by private persons, but authorized by a nation on certain
conditions to damage the commerce of the enemy by
acts ofpiracy. 2. A sailor on such a vessel.
privateering, n. Int'llaw. The practice of arming pri
vately owned merchant ships for the purpose ofattack
ing enemy trading ships. _ Before the practice was
outlawed, governments commissioned privateers by
issuing letters of marque to their merchant fleets. Pri
vateering was prohibited by the Declaration of Paris
Concerning Naval Warfare of 1856, which has been
observed by nearly all nations since that time. pri
vateer, vb.
private fact. See FACT.
private foundation. See FOUNDATION.
private grant. See GRANT.
private injury. See personal injury (2) under INJl:RY.
on an open market. 3. Confidential; secret. private international law. See INTERNATIONAL LAW.
1316 private inurement
private inurement. See INUREMENT.
private judging. (1979) A type of alternative dispute res
olution whereby the parties hire a private individual to
hear and decide a case. -This process may occur as a
matter of contract between the parties or in connec
tion with a statute authorizing such a process. Also
termed rent-a-judging.
"In contrast [to arbitration]. private judging is a less con
tractual, less privatized process. Party agreement, usually
formed post-dispute, does send a case to private judging.
And the parties have the freedom of contract to determine
the time and place of trial, as well as the identity of the
judge. Unlike arbitration, however, privately judged trials
may ... be: (1) required to use the same rules of procedure
and evidence used in ordinary litigation, (2) exposed to
public view by court order, (3) adjudicated only by a former
judge, and (4) subject to appeal in the same manner as
othertrial verdicts. In sum, private judging is essentially
an ordinary bench trial except that the parties select, and
pay for, the judge," Stephen J, Ware, Alternative Dispute
Resolution 2.54, at 113 (2001).
private land grant. See LAND GRANT.
private law. (18c) 1. The body oflaw dealing with private
persons and their property and relationships. Cf.
PUBtIC LAW (I). 2. See special law under LAW.
private letter ruling. See LETTER RULING.
private morality. See MORAtITY.
private mortgage insurance. See mortgage insurance
under INSURANCE.
private necessity. See NECESSITY.
private nonoperating foundation. See private founda
tion under FOL'NDATION.
private nuisance. See NUISANCE.
private offering. See OFFERING.
private operating foundation. See FOUNDATION.
private person. See PERSON (I).
private placement. L Family law. The placement of
a child for adoption by a parent, lawyer, doctor, or
private agency, rather than by a government agency.
At least eight states have prohibited private-placement
adoptions. Also termed direct placement. [Cases:
Adoption C=>6-7.8, 13, 16.] 2. Securities. See private
offering under OFFERING.
private-placement adoption. See private adoption under
ADOPTION.
private power. See POWER (3).
private prison. See PRISON.
private property. See PROPERTY.
private prosecution. See PROSECUTION.
private prosecutor. See PROSECUTOR (2).
private publication. See limited publication under PVB
LICATION.
private reprimand. See REPRIMAND.
private right. See RIGHT.
private right-of-way. See EASEMENT.
private river. See RIVER. private sale. See SALE.
private school. See SCHOOL.
private seal. See SEAL.
private search. See SEARCH.
private sector. (1930) The part of the economy or an
industry that is free from direct governmental control.
Cf. PUBLIC SECTOR.
private servitude. See SERVITUDE (2).
private signature. See SIGNATURE.
private statute. See speCial statute under STATUTE.
private stream. See STREAM.
private treaty. See TREATY (3).
private trust. See TRUST.
private-use exception. Patents. An exception to the pub
lic-use statutory bar, allowing the inventor to use the
invention for personal benefit for more than one year
without abandoning patent rights under the statutory
bars. -Also termed prior-user right. [Cases: Patents
C=>75.]
private voluntary organization. See NONGOVERNMEN
TAL ORGANIZATION.
private war. See WAR.
private water. See WATER.
private way. See WAY.
private wharf. See WHARF.
private wrong. See WRONG.
private zoning. See ZONING.
privation (pn-vay-sh,m). (15c) 1. The act oftaking away
or withdrawing. 2. The condition ofbeing deprived.
privatization (pn-va-ta-zay-sh;m), n. (1942) The act or
process ofconverting a business or industry from gov
ernmental ownership or control to private enterprise.
Cf. DENATIONALIZATION (2). privatize, vb.
privatum (pn-vay-tam). [Latin] Private. -This term
appeared in phrases such as jus privatum ("private
law").
privies (priv-eez). See PRIVY.
privigna (pn-vig-na), n. [Latin] Roman & civil law.
A daughter of one's husband or wife by a previous
marriage; a stepdaughter.
privignus (pn-vig-n<'>s). [Latin] Roman & civil law. A
son ofone's husband or wife by a previous marriage;
a stepson.
privile |
] Roman & civil law. A
son ofone's husband or wife by a previous marriage;
a stepson.
privilege. (bef. 12c) 1. A special legal right, exemption,
or immunity granted to a person or class ofpersons; an
exception to a duty. _ A privilege grants someone the
legal freedom to do or not to do a given act. It immu
nizes conduct that, under ordinary circumstances,
would subject the actor to liability.
absolute privilege. (I8c) A privilege that immunizes
an actor from suit, no matter how wrongful the
action might be, and even though it is done with an
1317 privilege
improper motive. Cf. qualified privilege. [Cases: Libel
and Slander C=36; Torts C=:o 121.]
audit privilege. See AUDIT PRIVILEGE.
conditional privilege. See qualified privilege.
courtroom privilege. See judicial privilege.
defamation privilege. See litigation privilege.
deliberative-process privilege. (1977) A privilege
permitting the government to withhold documents
relating to policy formulation to encourage open and i
independent discussion among those who develop
government policy. [Cases: Privileged Communica
tions and Confidentiality (;=>361.]
judicial privilege. (1845) Defamation. l. The privilege
protecting any statement made in the course of and
with reference to a judicial proceeding by any judge,
juror, party, witness, or advocate. 2. See litigation
privilege. -Also termed courtroom privilege. [Cases:
Libel and Slander C=38.]
judicial-proceedings privilege. See litigation privi
lege.
legislative privilege. (1941) Defamation. The privilege
protecting (1) any statement made in a legislature by
one of its members, and (2) any paper published as
part oflegislative business. -Also termed (in a par
liamentary system) parliamentary privilege. [Cases:
Libel and Slander C=~37.J
litigation privilege. A privilege protecting the attor
neys and parties in a lawsuit against tort claims based
on certain acts done and statements made when
related to the litigation . The privilege is most often
applied to defamation claims but may be extended to
encompass other torts, such as invasion of privacy
and disclosure oftrade secrets. The facts ofeach case
determine whether the privilege applies and whether
it is qualified or absolute. -Also termed judicial
proceedings privilege; judicial privilege; defamation
privilege. [Cases: Libel and Slander (...'-::>38.]
official privilege. (1927) The privilege immunizing
from a defamation lawsuit any statement made by
one state officer to another in the course of official
duty. [Cases: Libel and Slander C=39, 42.]
parliamentary privilege. 1. See legislative privilege. 2.
PRIVILEGE (5).
privilege from arrest. (1840) An exemption from arrest,
as that enjoyed by members of Congress during leg
islative sessions. U.S. Const. art. I, 6, cl. L [Cases:
Arrest (;::::>60.J
qualified privilege. (1865) A privilege that immunizes
an actor from suit only when the privilege is properly
exercised in the performance of a legal or moral
duty. -Also termed conditional privilege. Cf. absolute
privilege. [Cases: Libel and Slander C=41; Officers
and Public Employees C=114; Torts 121.)
"Qualified privilege ... is an intermediate case between
total absence of privilege and the presence of absolute
privilege." R.F.V. Heuston, Salmond on the Law ofTorts 165
(17th ed. 1977). special privilege. (17c) 1. A privilege granted to a person
or class of persons to the exclusion ofothers and in
derogation ofthe common right. 2. See personal privi
lege under PRIVILEGE (5).
testimonial privilege. (1907) A right not to testify based
on a claim of privilege; a privilege that overrides a
witness's duty to disclose matters within the witness's
knowledge, whether at trial or by deposition. [Cases:
Witnesses (;::::297.)
viatorial privilege (vI-a-tor-ee-al). (1904) A privi
lege that overrides a person's duty to attend court in
person and to testify.
work-product privilege. See WORK-PRODUCT RULE.
2. An affirmative defense by which a defendant
acknowledges at least part of the conduct complained
ofbut asserts that the defendant's conduct was autho
rized or sanctioned by law; esp., in tort law, a circum
stance justifying or excusing an intentional tort. See
1USTIFICATION (2). Cf. IMMUNITY (2). [Cases: Torts
121.] 3. An evidentiary rule that gives a witness the
option to not disclose the fact asked for, even though
it might be relevant; the right to prevent disclosure of
certain information in court, esp. when the informa
tion was originally communicated in a profeSSional or
confidential relationship . Assertion ofan evidentiary
privilege can be overcome by proof that an otherwise
privileged communication was made in the presence
ofa third party to whom the privilege would not apply.
[Cases: Privileged Communications and Confidential
ity (.=:0 1, 17.J
accountant-client privilege. (1956) The protection
afforded to a client from an accountant's unauthor
ized disclosure ofmaterials submitted to or prepared
by the accountant . The privilege is not Widely rec
ognized. [Cases: Privileged Communications and
Confidentiality C=405.]
antimarital-facts privilege. See marital privilege (2).
attorney-client privilege. (1934) The client's right to
refuse to disclose and to prevent any other person
from disclosing confidential communications
between the client and the attorney . The privilege is
not Widely recognized. Also termed lawyer-client
privilege; client's privilege. [Cases: Privileged Com
munications and Confidentiality C=102.)
'There are a number of ways to organize the essential
elements of the attorney-client privilege to provide for
an orderly analysis. One of the most popular is Wigmore's
schema: '(1) Where legal advice of any kind is sought (2)
from a profeSSional legal adviser in his capacity as such,
(3) the communications relating to that purpose (4) made
in confidence (5) by the client (6) are at his instance perma
nently protected (7) from disclosure by himself or by the
legal adviser, (8) except the privilege be waived.' Though
this organization has its virtues, there is some question
as to whether it completely states the modern privilege."
24 Charles Alan Wright & Kenneth W. Graham Jr., Federal
Practice and Procedure 5473, at 103-04 (1986) (quoting
8 John Henry Wigmore, Evidence 2292, at 554 Uohn T.
McNaughton rev., 1961.
"At the present time it seems most realistic to portray
the attorney-client privilege as supported in part by its
1318 privilege
traditional utilitarian justification, and in part by the
integral role it is perceived to play in the adversary system
itself. Our system of litigation casts the lawyer in the role
of fighter for the party whom he represents. A strong tra
dition of loyalty attaches to the relationship of attorney
and client, and this tradition would be outraged by routine
examination of the lawyer as to the client's confidential
disclosures regarding professional business. To the extent
that the evidentiary privilege, then, is integrally related
to an entire code of professional conduct, it is futile to
envision drastic curtailment of the privilege without sub
stantial modification of the underlying ethical system to
which the privilege is merely ancillary." John W. Strong.
McCormick on Evidence 87. at 121-22 (4th ed. 1992).
clergyman-penitent privilege. See priest-penitent
privilege.
client's privilege. See attorney-client privilege.
doctor-patient privilege. (1954) The right to exclude
from discovery and evidence in a legal proceeding any
confidential communication that a patient makes to a
physician for the purpose of diagnosis or treatment,
unless the patient consents to the disclosure. -Also
termed patient-physician privilege; physician-patient
privilege; physician-client privilege. [Cases: Privileged
Communications and Confidentiality <:';::::'202.]
editorial privilege. See journaliSt's privilege (2).
executive privilege. (1909) A privilege, based on the
constitutional doctrine of separation of powers, that
exempts the executive branch of the federal govern
ment from usual disclosure requirements when the
matter to be disclosed involves national security
or foreign policy. Cf. executive immunity under
IMMUNITY (1). [Cases: Privileged Communications
and Confidentiality
husband-wife privilege. See marital privilege.
informant's privilege. (1962) The qualified privilege
that a government can invoke to prevent disclosure of
the identity and communications ofits informants. _
In exercising its power to formulate evidentiary rules
for federal criminal cases, the U.S. Supreme Court
has conSistently declined to hold that the govern
ment must disclose the identitv of informants in a
preliminary hearing or in a cri~inal triaL McCray v.
Illinois, 386 U.S. 300, 312, 87 S.Ct. 1056, 1063 (1967).
A party can, however, usu. overcome the privilege
by demonstrating that the need for the information
outweighs the public interest in maintaining the
privilege. Also termed informer's privilege. [Cases:
Criminal Law C=627.6; Privileged Communications
and Confidentiality C=374.]
joint-defense privilege. (1975) The rule that a defendant
can assert the attorney-client privilege to protect a
confidential communication made to a codefendant's
la"wyer ifthe communication was related to the defense
ofboth defendants. -Also termed common-interest
doctrine; common-interest privilege; common-interest
exception. [Cases: Privileged Communications and
Confidentiality C=122.]
journalist's privilege. (1970) 1. A reporter's protec
tion, under constitutional or statutory law, from being compelled to testify about confidential infor
mation or sources. Also termed reporter's privi
lege; newsman's privilege. See SHIELD LAW (1). [Cases:
Privileged Communications and ConfidentialityC=
404.] 2. A publisher's protection against defamation
lawsuits when the publication makes fair comment
on the actions of public officials in matters of public
concern. Also termed editorial privilege; common
interest privilege; common-interest exception. See FAIR
COMMENT. [Cases: Libel and Slander C=49.]
lawyer-client privilege. See attorney-client privilege.
marital privilege. (1902) 1. 1he privilege allowing a
spouse not to testify, and to prevent another person
from testifying, about confidential communications
between the spouses during the marriage. -Also
termed marital-communications privilege. [Cases:
Privileged Communications and Confidentiality<>;:>
60.] 2. The privilege allowing a spouse not to testify in
a criminal case as an adverse witness against the other
spouse, regardless of the subject matter of the testi
mony. Also termed (in sense 2) privilege against
adverse spousal testimony; antimarital-facts privilege.
[Cases: Witnesses C=Sl.] 3. The privilege immuniz
ing from a defamation lawsuit any statement made
between husband and wife. -Also termed (in all
senses) spousal privilege; husband-wife privilege.
national-security privilege. See state-secrets privi
lege.
newsman's privilege. See journalist's privilege (1).
patient-physician privilege. See doctor-patient privi
lege.
peer-review privilege. (1979) A privilege that protects
from disclosure the proceedings and reports of a
medical facility's peer-review committee, which
reviews and oversees the patient care and medical
services provided by the staff. [Cases: Privileged
Communications and ConfidentlalityC=422.]
physician-client privilege. See doctor-patient privi
lege.
political-vote privilege. A privilege to protect from
compulsory disclosure a vote cast in an election by
secret ballot. [Cases: Elections (~28.]
priest-penitent privilege. (1958) The privilege barring
a clergy member from testifying about a confessor's
communications. -Also termed clergyman-penitent
privilege. [Cases: Privileged Communications and
Confidentiality C=403.]
privacy privilege. A defendant's right not to disclose
private information unless the plaintiff can show that
(1) the information is directly relevant to the case,
and (2) the plaintiff's need for the information out
weighs the defendant's need for nondisclosure. -This
privilege is recognized in California but in few other
jurisdictions. [Cases: Witnesses C=184(1).]
privilege against adverse spousal testimony. See
marital privilege (2).
1319
privilege against self-incrimination. Criminal law. 1.
RIGHT AGAINST SELF-INCRIMINATION. 2. A criminal
defendant's right not to be asked any questions by the
judge or prosecution unless the defendant chooses
to testify. Also termed right not to be questioned.
[Cases: Witnesses~299.1
"According to the rule, neither the judge nor the |
questioned.
[Cases: Witnesses~299.1
"According to the rule, neither the judge nor the prosecu
tion is entitled at any stage to question the accused unless
he chooses to give evidence .... This rule may be called
the accused's right not to be questioned; in America it is
termed the privilege against selfincrimination. The latter
expression is more apt as the name for another rule, the
privilege of any witness to refuse to answer an incriminat
ing question; this is different from the rule under discus
sion, which, applying only to persons accused of crime,
prevents the question from being asked. The person
charged with crime has not merely the liberty to refuse to
answer a question incriminating himself; he is freed even
from the embarrassment of being asked the question."
Glanville Williams, The ProofofGuilt 37-38 (3d ed. 1963).
psychotherapist-patient privilege. (1968) A privilege
that a person can invoke to prevent the disclosure
of a confidential communication made in the course
of diagnosis or treatment of a mental or emotional
condition by or at the direction of a psychothera
pist -The privilege can be overcome under certain
conditions, as when the examination is ordered by a
court. -Also termed psychotherapist-client privilege.
[Cases: Privileged Communications and Confidenti
ality~312.]
reporter's privilege. See journalist's privilege (1).
self-critical-analysis privilege. (1982) A privilege pro
tecting individuals and entities from divulging the
results of candid assessments of their compliance with
laws and regulations, to the extent that the assess
ments are internal, the results were intended from
the outset to be confidential, and the information is
ofa type that would be curtailed if it were forced to
be disclosed. _ This privilege is founded on the public
policy that it is beneficial to permit individuals and
entities to confidentially evaluate their compliance
with the law, so that they will monitor and improve
their compliance with it. Also termed self-policing
privilege; self-evaluation privilege. [Cases: Privileged
Communications and Confidentiality ~418.1
spousal privilege. See marital privilege.
state-secrets privilege. (1959) A privilege that the
government may invoke against the discovery of a
material that, if divulged, could compromise national
security. -Also termed national-security privilege.
[Cases: Privileged Communications and Confiden
tiality ~360.]
tax-return privilege. A privilege to refuse to divulge
the contents of a tax return or certain related docu
ments. -The privilege is founded on the public policy
of encouraging honest tax returns. [Cases: Witnesses
C::::C216(2).]
4. Civil law. A creditor's right, arising from the nature
of the debt, to priority over the debtor's other credi
tors. 5. Parliamentary law. The status of a motion as
outranking other business because of its relationship privileged
to the meeting's or a member's rights. -Also termed
parliamentary privilege. See question ofprivilege under
QUESTION (3).
general privilege. A privilege that concerns the delib
erative assembly as a body, rather than any partic
ular member or members. Also termed privilege
ofthe assembly; privilege of the house. Cf. personal
privilege.
parliamentary privilege. 1. A privilege under parlia
mentary law. 2. See legislative privilege under PRIVI
LEGE (1).
personal privilege. A privilege that concerns an indi
vidual member or members (e.g., a member's reputa
tion or physical ability to hear the proceedings) rather
than the deliberative assembly generally. -Also
termed special privilege. See procedural point under
POINT. Cf. general privilege.
privilege ofthe assembly. See general privilege.
privilege ofthe floor. Parliamentary law. (usu. pl.) 1be
right ofentering, passing through, and sitting on the
floor during a meeting. See FLOOR (1).
"The expression 'privileges of the floor,' sometimes used
in legislative bodies or conventions, has nothing to do with
having the floor, but means merely that a person is permit
ted to enter the hall. It carries no right to speak or any other
right of membership, except as may be determined by rules
or action of the body." Henry M. Robert, Robert's Rules of
Order Newly Revised 3, at 28 n. (1 Oth ed. 2000).
privilege ofthe house. See general privilege.
special privilege. See personal privilege.
privileged, adj. 1. Not subject to the usual rules or liabili
ties; esp., not subject to disclosure during the course
of a lawsuit <a privileged document>. 2. Enjoying
or subject to a privilege. See privileged motion under
MOTION (2).
privileged communication. See COMMUNICATION.
privileged copyhold. See COPYHOLD.
privileged debt. See DEBT.
privileged evidence. See EVIDENCE.
privileged motion. See MOTION (2).
privileged question. See QUESTION (3).
privileged subscription. See rights offering under
OFFERING.
privileged villeinage. See VILLEINAGE.
privilege from arrest. See PRIVILEGE (1).
privilege ofpalace. The exemption of a dwelling that is
used as a royal residence from the execution of legal
process within its precincts. -The monarch does not
have to be in residence at the time but must intend to
retain the power to take up personal residence in the
dwelling at will. Not all palaces are royal residences;
England's Westminster Palace, for example, is occupied
by the Parliament of the United Kingdom, not the
queen, who relinquished all control of the palace in
1965.
1320 Privileges and Immunities Clause
Privileges and Immunities Clause. (1911) The con
stitutional provision (U.S. Const. art. IV, 2, d. 1)
prohibiting a state from favoring its own citizens by
discriminating against other states' citizens who come
within its borders. [Cases: Constitutional Law
2935-2963.]
Privileges or Immunities Clause. (1918) The constitu
tional provision (U.S. Const. amend. XIV, 1) prohibit
ing state laws that abridge the privileges or immunities
of U.S. citizens. _ The clause was effectively nullified
by the Supreme Court in the Slaughter-House Cases,
83 U.S. (16 Wall.) 36 (1873). Cf. DUE PROCESS CLAUSE;
EQUAL PROTECTION CLAUSE. [Cases: Constitutional
Law (;::::>291O-2932.J
privilege tax. See TAX.
privilegium (priv-<l-lee-jee-<lm), n. [Latin]!. Roman law.
A law passed against or in favor of a specific individual.
2. Roman law. A special right, esp. one giving priority
to a creditor. 3. CilJillaw. Every right or favor that is
granted by the law but is contrary to the usual rule.
privilegium clericale (priv-<l-lee-jee-dm kler-d-kay-Iee).
[Law Latin] See BENEFIT OF CLERGY.
privity (priv-<l-tee). (16c) 1. The connection or relation
ship between two parties, each having a legally rec
ognized interest in the same subject matter (such as a
transaction, proceeding, or piece of property); mutual
ity of interest <privity ofcontract>. [Cases: Contracts
(::::: 186; Judgment (:::::678(2).]
horizontal privity. (1968) Commercial law. The legal
relationship between a party and a nonparty who is
related to the party (such as a buyer and a member of
the buyer's family). [Cases; Sales (:::::255.]
privity ofblood. (16c) 1. Privity between an heir and an
ancestor. 2. Privity between coparceners.
privity ofcontract. (17c) Ihe relationship between
the parties to a contract, allOWing them to sue each
other but preventing a third party from doing so.
The requirement of privity has been relaxed under
modern laws and doctrines ofimplied warranty and
strict liability, which allow a third-party beneficiary
or other foreseeable user to sue the seller of a defective
product. [Cases: Contracts C= 186; Sales (,~'255.]
'To many students and practitioners of the common law
privity of contract became a fetish. As such, it operated
to deprive many a claimant of a remedy in cases where
according to the mores of the time the claim was just. It
has made many learned men believe that a chose in action
could not be assigned. Even now, it is gravely asserted
that a man cannot be made the debtor of another against
his will. But the common law was gradually influenced by
equity and by the law merchant, so that by assignment
a debtor could become bound to pay a perfect stranger
to himself, although until the legislature stepped in, the
common-law courts characteristically made use of a fiction
and pretended that they were not doing that which they
really were doing." William R. Anson, Principles of the Law
ofContract 335 (Arthur L. Corbin ed., 3d Am. ed. 1919).
"It is an elementary principle of English law -known as the
doctrine of 'Privity of Contract' -that contractual rights
and duties only affect the parties to a contract, and this
principle is the distinguishing feature between the law of contract and the law of property. True proprietary rights
are 'binding on the world' in the lawyer's traditional phrase,
Contractual rights, on the other hand, are only binding on,
and enforceable by, the immediate parties to the contract.
But this distinction, fundamental though it be, wears a little
thin at times. On the one hand, there has been a constant
tendency for contractual rights to be extended in their
scope so as to affect more and more persons who cannot
be regarded as parties to the transaction. On the other
hand, few proprietary rights are literally 'binding on the
world'." P.S. Atiyah, An Introduction to the Law ofContract
265 (3d ed. 1981).
"The doctrine of privity means that a person cannot
acquire rights or be subject to liabilities arising under a
contract to which he is not a party. It does not mean that
a contract between A and B cannot affect the legal rights
of C indirectly." C.H. Treitel, The Law of Contract 538 (8th
ed.1991).
privity ofestate. (17c) A mutual or successive relation
ship to the same right in property, as between grantor
and grantee or landlord and tenant. -Also termed
privity oftitle; privity in estate. [Cases: Landlord and
Tenant (;::::>20,
privity afpossession. (1818) Privity between parties in
successive possession of real property. -The existence
of this type of privity is often at issue in adverse-pos
session claims. [Cases: Adverse Possession (:::::43.]
privity oftitle. See privity ofestate.
vertical privity. (1968) 1. Commercial law. The legal
relationship between parties in a product's chain of
distribution as a manufacturer and a seller).
[Cases: Sales 2. Privity between one who
signs a contract containing a restrictive covenant and
one who acquires the property burdened by it.
2. Joint knowledge or awareness of something private
or secret, esp. as implying concurrence or consent
<privity to a crime>.
privy (priv-ee), n. pl. (15c) A person haVing a legal
interest ofprivity in any action, matter, or property; a
person who is in privity with another. -Traditionally,
there were six types ofprivies: (1) privies in blood, such
as an heir and an ancestor; (2) privies in representation,
such as an executor and a testator or an administra
tor and an intestate person; (3) privies in estate, such
as grantor and grantee or lessor and lessee; (4) privies
in respect to a contract the parties to a contract; (5)
privies in respect ofestate and contract, such as a lessor
and lessee where the lessee assigns an interest, but the
contract between lessor and lessee continues because
the lessor does not accept the assignee; and (6) privies
in law, such as husband and wife. The term also appears
in the context of litigation. In this sense, it includes
someone who controls a lawsuit though not a party to
it; someone whose interests are represented by a party
to the lawsuit; and a successor in interest to anyone
having a derivative claim. PI. privies.
Privy Council. In Britain, the principal council of the
sovereign, composed ofthe cabinet ministers and other
persons chosen by royal appointment to serve as privy
councillors. -The functions of the Privy Council are
1321 probate
now mostly ceremoniaL See JUDICIAL COMMITTEE OF
THE PRIVY COUNCIL.
Privy Councillor. A member of the Privy Council. -
Abbr. P.e.
privy purse. English law. The income set apart for the
sovereign's personal use.
privy seal. 1. A seal used in making out grants or letters
patent before they are passed under the great seal. 2.
(cap.) LORD PRIVY SEAL.
privy signet. Hist. The signet or seal used by the sover
eign in making out grants and private letters.
privy verdict. See VERDICT.
prize. 1. Something ofvalue awarded in recognition ofa
person's achievement. 2. A vessel or cargo captured at
sea or seized in port by the forces ofa nation at war, and
therefore liable to being condemned or appropriated as
enemy property. [Cases: War and National Emergency
C-'--::>28.]
prize court. See COURT.
prize fighting. Fighting for a reward or prize; esp., pro
fessional boxing. [Cases: Public Amusement and Enter
tainment (~27.]
"Prize fighting ... was not looked upon with favor by the
common law as was a friendly boxing match or wrestling
match. On the other hand it |
... was not looked upon with favor by the
common law as was a friendly boxing match or wrestling
match. On the other hand it was not punishable by the
common law unless it was fought in a public place, or for
some other reason constituted a breach of the peace."
Rollin M. Perkins & Ronald N. Boyce, Criminal Law 480
(3d ed. 1982).
prize goods. See GOODS.
prize law. The system of laws applicable to the capture
of prize at sea, dealing with such matters as the rights
ofcaptors and the distribution ofthe proceeds. [Cases:
War and National Emergency C=>28.]
prize money. 1. A dividend from the proceeds of a
captured vessel, paid to the captors. 2. Money offered
asan award.
PRM. abbr. BUREAU OF POPULATION, REFUGEES, AND
MIGRATION.
PRO. abbr. PEER-REVIEW ORGANIZATION.
pro (proh). [Latin] (15c) For.
proamita (proh-am-;l-t;l). [Latin] Roman & civil law. A
great-great aunt; the sister ofone's great-grandfather.
proamita magna (proh-am-;l-t;l mag-m). [Latin] Civil
law. A great-great-great-aunt.
proavia (proh-ay-vee-;l). [Latin] Roman & civil law. A
great-grandmother.
proavunculus (proh-;l-v<Jngk-Y;l-I;ls). [Latin] Civil law.
A great-grandmother's brother.
proavus. Civil law. A great-grandfather.
probabilis causa (pr;l-bay-ba-lis kaw-zd). [Latin]
Probable cause.
probabilis causa Wigandi (pfa-bab-a-lis kaw-zd !it
i-gan-dI). [Law Latin] Scots law. A probable cause of action. A person applying for legal aid has to show a
reasonable basis for the proposed legal action.
probable cause. (16c) 1. Criminal law. A reasonable
ground to suspect that a person has committed or is
committing a crime or that a place contains specific
items connected with a crime. Under the Fourth
Amendment, probable cause -which amounts to
more than a bare suspicion but less than evidence that
would justify a conviction must be shown before an
arrest warrant or search warrant may be issued. Also
termed reasonable cause; sufficient cause; reasonable
grounds; reasonable excuse Cf. reasonable suspicion
under SUSPICION. [Cases: Arrest C=>63.4(2).]
"Probable cause may not be established simply by showing
that the officer who made the challenged arrest or search
subjectively believed he had grounds for his action. As
emphasized in Beck v. Ohio [379 U.S. 89, 85 S.Ct. 223
(1964)J: 'If subjective good faith alone were the test, the
protection of the Fourth Amendment would evaporate,
and the people would be "secure in their persons, houses,
papers, and effects" only in the discretion of the police.'
The probable cause test, then, is an objective one; for there
to be probable cause, the facts must be such as would
warrant a belief by a reasonable man." Wayne R. LaFave
& Jerold H. Israel. Criminal Procedure 3.3, at 140 (2d
ed.1992).
2. Torts. A reasonable belief in the existence of facts
on which a claim is based and in the legal validity
of the claim itself. In this sense, probable cause is
usu. assessed as of the time when the claimant brings
the claim (as by filing suit). 3. A reasonable basis to
support issuance of an administrative warrant based
on either (1) specific evidence of an existing violation
of administrative rules, or (2) evidence showing that a
particular business meets the legislative or administra
tive standards permitting an inspection ofthe business
premises. [Cases: Searches and Seizures ~129.]
probable-cause hearing. 1. See PRELIMINARY HEARING.
2. See shelter hearing under HEARING.
probable consequence. (16c) An effect or result that
is more likely than not to follow its supposed cause.
[Cases: Negligence C:",">386.]
probable-desistance test. (1974) Criminal law. A
common-law test for the crime of attempt, focusing
on whether the defendant has exhibited dangerous
behavior indicating a likelihood of committing the
crime. See ATTEMPT (2).
probable evidence. See presumptive evidence under
EVIDENCE.
probandum (proh-ban-dam), n. A fact to be proved. See
fact in issue under FACT. PI. probanda.
probata (proh-bay-t;l). [Latin] pl. PROBATUM.
probate (proh-bayt), n. (ISc) 1. The judicial procedure by
which a testamentary document is established to be a
valid will; the proving ofa will to the satisfaction ofthe
court. Unless set aside, the probate of a will is con
clusive upon the parties to the proceedings (and others
who had notice ofthem) on all questions of testamen
tary capacity, the absence offraud or undue influence,
and due execution of the will. But probate does not
1322 probate
preclude inquiry into the validity of the will's provi
sions or on their proper construction or legal effect.
Also termed proofofwill. [Cases: Wills C=>203-434.]
independent probate. See informal probate.
informal probate. (1974) Probate designed to operate
with minimal input and supervision of the probate
court. Most modern probate codes encourage this
type ofadministration, with an independent personal
representative. -Also termed independent probate.
Cf. independent executor under EXECUTOR. [Cases:
Executors and Administrators C=>3(1).]
probate in common form. Probate granted in the
registry, without any formal procedure in court, on
the executor's ex parte application . The judgment
is subject to being reopened by a party who has not
been given notice. [Cases: Wills C=>213.]
probate in solemn form. Probate granted in open court,
as a final decree, when all interested parties have been
given notice . The judgment is final for all parties
who have had notice ofthe proceeding, unless a later
will is discovered. [Cases: Wills C=>214.]
small-estate probate. (2004) An informal procedure
for administering small estates, less structured than
the normal process and usu. not requiring the assis
tance ofan attorney.
2. Loosely, a personal representative's actions in
handling a decedent's estate. 3. Loosely, all the subjects
over which probate courts have jurisdiction. 4. Archaic.
A nonresident plaintiff's proof of a debt by swearing
before a notary public or other officer that the debt is
correct, just, and due, and by having the notary attach
a jurat.
probate, vb. (18c) 1. To admit (a will) to proof. 2. To
administer (a decedent's estate). 3. To grant probation
to (a criminal); to reduce (a sentence) by means ofpro
bation.
probate asset. See legal asset under ASSET.
probate bond. See BOND (2).
probate code. (1931) A collection ofstatutes setting forth
the law (substantive and procedural) of decedents'
estates and trusts. [Cases: Wills C=>204.]
probate court. See COURT.
probate distribution. See DISTRIBUTION.
probate duty. See DUTY (4).
probate estate. (1930) A decedent's property subject
to administration by a personal representative .
The probate estate comprises property owned by the
decedent at the time of death and property acquired
by the decedent's estate at or after the time ofdeath.
Also termed probate property. See decedent's estate
under ESTATE (3). [Cases: Executors and Administra
tors C=>38-61; Wills C=>4.]
netprobate estate. The probate estate after the follow
ing deductions: (1) family allowances, (2) exempt
property, (3) homestead allowances, (4) claims
against the estate, and (5) taxes for which the estate is liable. -Also termed net estate. Cf. adjusted gross
estate (1) under ESTATE (3). [Cases: Internal Revenue
C=>4149-4185; Taxation C=>3351.]
probate fee. See FEE (1).
probate homestead. See HOMESTEAD.
probate in common form. See PROBATE.
probate in solemn form. See PROBATE.
probate judge. See JUDGE.
probate jurisdiction. See JURISDICTION.
probate law. The body of statutes, rules, cases, etc. gov
erning all subjects over which a probate court has juris
diction.
probate property. See PROBATE ESTATE.
probate register. See REGISTER.
probatio (pra-bay-shee-oh). [Latin] Roman & civil law.
Proof.
plena probatio. See probatio plena.
probatio diabolica (pra-bay-shee-oh dI-a-bol-i-b).
[Latin "devil's proof"] Civil law. The (usu. difficult)
proofofownership ofan immovable thing by tracing
its title back to the sovereign.
probatio mortua (pra-bay-shee-oh mor-choo-a).
[Latin] Dead proof; proof by an inanimate object such
as a deed or other instrument.
probatio plena (pra-bay-shee-oh plee-m). [Latin] Civil
law. Full proof; proof by two witnesses or a public
instrument. -Also termed plena probatio.
probatio probata (pra-bay-shee-oh pra-bay-ta). [Law
Latin] A proven proof; evidence that could not be
contradicted.
probatio prout dejure (proh-bay-shee-oh proh-at dee
[or di] joor-ee). [Law Latin] A proof according to any
of the legal modes ofproof applicable to the circum
stance.
probatio semi-plena (pra-bay-shee-oh sem -I -plee-na).
[Latin] Civil law. Half-full proof; half-proof; proof by
one witness or a private instrument.
probatio viva (pra-bay-shee-oh VI-va). [Latin] Living
proof; that is, proof by the mouth ofa witness.
probation. (16c) 1. A court-imposed criminal sentence
that, subject to stated conditions, releases a convicted
person into the community instead of sending the
criminal to jail or prison. Cf. PAROLE. [Cases: Sentenc
ing and Punishment C=> 1811.] -probationary, adj.
bench probation. (1966) Probation in which the
offender agrees to certain conditions or restrictions
and reports only to the sentencing judge rather than
a probation officer. -Also termed bench parole; court
probation. [Cases: Sentencing and Punishment C=>
1969.]
deferred-adjudication probation. See deferred
judgment under JUDGMENT.
shock probation. (1972) Probation that is granted
after a brief stay in jail or prison. Shock probation
1323
is intended to awaken the defendant to the reality of
confinement for failure to abide by the conditions of
probation. This type of probation is discretionary
with the sentencing judge and is usu. granted within
180 days of the original sentence. Also termed
split sentence. Cf. shock incarceration under INCAR
CERATION. [Cases: Sentencing and Punishment
1936.]
2. The act ofjudicially proving a wilL See PROBATE.
probate, adj.
probationary employee. See EMPLOYEE.
probation before judgment. See deferred judgment
under JUDGMENT.
probationer. A convicted criminal who is on proba
tion.
probation officer. See OFFICER (1).
probation termination. (1970) The ending of a person's
status as a probationer by (1) the routine expiration of
the probationary period, (2) early termination by court
order, or (3) probation revocation. [Cases: Sentencing
and Punishment Cr~1948, 1953, 2000-2041.]
probation-violation warrant. See violation warrant
under WARRANT (1).
probation without judgment. See deferred judgment
under JUDGMENT.
probatio plena. See PROBATIO.
probatio semi-plena. See PROBATIO.
probatio viva. See PROBATIO.
probative (proh-b,,-tiv), adj. (17c) Tending to prove or
disprove . Courts can exclude relevant evidence if
its probative value is substantially outweighed by the
danger of unfair prejudice. Fed. R. Evid. 403. [Cases:
Criminal Law ~338(l), 338(7); Evidence C)99,
146.]- probativeness, probativity, n.
probative evidence. See EVIDENCE.
probative fact. See FACT.
probative similiarity. See substantial similarity under
SIMILARITY.
probator (proh-bay-t<lr), n. Hist. An accused person who
confesses to a crime but asserts that another also par
ticipated in the crime . The probator had to undertake
to prove the supposed accomplice's guilt.
probatory term. See term probatory (2) under TERM
(5).
probatum (proh-bay-t;:Jm), n. [Latin] Something con
clusively established or proved; proof. PI. probata. Cf.
ALLEGATUM.
problem-oriented policing. (1986) A method that law
enforcement officers use to reduce crime by identify
ing and remedying the underlying causes of criminal
incidents rather than merely seeking basic information
(such as the identity ofthe perpetrator) about the crime
being investigated.
problem |
rather than merely seeking basic information
(such as the identity ofthe perpetrator) about the crime
being investigated.
problem-solving court. See COURT. procedure
pro bono (proh boh-noh), adv. & adj. [Latin pro bono
publico "for the public good"] (1966) Being or involv
ing uncompensated legal services performed esp. for
the public good <took the case pro bono> <50 hours of
pro bono work each year>. [Cases: Attorney and Client
C=',23, 132.]
"The bar in this country has a long-standing tradition of
service pro bono publico -legal services 'for the public
good,' provided at no cost or a reduced fee. This concept
encompasses a wide range of activities, including law
reform efforts, participation in bar associations and civic
organizations, and individual or group representation.
Clients who receive such assistance also span a broad
range including: poor people, nonprofit organizations,
ideological or political causes, and friends, relatives, or
employees of the lawyer." Deborah L. Rhode & Geoffrey C.
Hazard, ProfeSSional Responsibility 162 (2002).
pro bono et malo (proh boh-noh et mal-oh). [Latin] For
good and ill. See DE BONO ET MALO.
pro bono publico (proh boh-noh p3b-li-koh orpoo-bli
kohl. [Latin] Hist. For the public good. Cf. PRO PRIVATO
COM MODO.
probus et legalis homo (proh-b<'ls et la-gay-lis hoh-moh).
[Law Latin] A good and lawful man. This phrase
referred to a juror who was legally competent to serve
on a jury. PI. probi et legales homines.
procedendo (proh-s,,-den-doh). [Latin] A higher court's
order directing a lower court to determine and enter a
judgment in a preViously removed case.
procedendo ad judicium. See DE PROCEDENDO AD
JUDICIUM.
procedural consolidation. See JOINT ADMINISTRA
TION.
procedural-default doctrine. (1980) The principle that
a federal court lacks jurisdiction to review the merits
ofa habeas corpus petition if a state court has refused
to review the complaint because the petitioner failed
to follow reasonable state-court procedures. [Cases:
Habeas Corpus ~':J313-43L]
procedural due process. See DUE PROCESS.
procednrallaw. (1896) The rules that prescribe the
steps for having a right or duty judicially enforced, as
opposed to the law that defines the specific rights or
duties themselves. Also termed adjective law. Cf.
SUBSTANTIVE LAW. [Cases: Statutes (;::J242.]
procedural main motion. See incidental main motion
under MOTION (2).
procedural motion. See MOTION (2).
procedural point. See POINT.
procedural presumption. See PRESUMPTION.
procedural right. See RIGHT.
procedural unconscionability. See UNCONSCIONABIL
ITY.
procedure. (16c) 1. A specific method or course of
action. 2. The judicial rule or manner for carrying on
a civil lawsuit or criminal prosecution. -Also termed
proceeding 1324
rules ofprocedure. See CIVIL PROCEDURE; CRIMINAL
PROCEDURE.
proceeding. (16c) 1. The regular and orderly progres
sion ofa lawsuit, including all acts and events between
the time ofcommencement and the entry ofjudgment.
2. Any procedural means for seeking redress from a
tribunal or agency. 3. An act or step that is part of a
larger action. 4. The business conducted by a court or
other official body; a hearing. 5. Bankruptcy. A particu
lar dispute or matter arising within a pending case
as opposed to the case as a whole. [Cases: Bankruptcy
C=>2156.]
'''Proceeding' is a word much used to express the business
done in courts. A proceeding in court is an act done by the
authority or direction of the court, express or implied. It
is more comprehensive than the word 'action,' but it may
include in its general sense all the steps taken or measures
adopted in the prosecution or defense of an action, includ
ing the pleadings and judgment. As applied to actions, the
term 'proceeding' may include-(l) the institution of the
action; (2) the appearance of the defendant; (3) all ancil
lary or provisional steps, such as arrest, attachment of
property, garnishment, injunction, writ of ne exeat; (4) the
pleadings; (5) the taking of testimony before trial; (6) all
motions made in the action; (7) the trial; (8) the judgment;
(9) the execution; (10) proceedings supplementary to
execution, in code practice; (11) the taking of the appeal
or writ of error; (12) the remittitur, or sending back of the
record to the lower court from the appellate or reviewing
court; (13) the enforcement of the judgment, or a new trial,
as may be directed by the court of last resort." Edwin E.
Bryant, The Law of Pleading Under the Codes of Civil Pro
cedure 3-4 (2d ed. 1899).
adjudicatory proceeding. See adjudication hearing
under HEARING.
administrative proceeding. See ADMINISTRATIVE PRO
CEEDING.
collateral proceeding. (18c) A proceeding brought to
address an issue incidental to tbe principal proceed
ing.
competency proceeding. (1925) A proceeding to assess
a person's mental capacity . A competency hearing
may be held either in a criminal context to determine
a defendant's competency to stand trial or as a civil
proceeding to assess whether a person should be com
mitted to a mental-health facility or should have a
guardian appointed to manage the person's affairs.
contempt proceeding. (1859) A judicial or quasi-judicial
hearing conducted to determine whether a person
has committed contempt. [Cases: Contempt (~40.1
core proceeding. See CORE PROCEEDING.
criminal proceeding. (16c) A proceeding instituted to
determine a person's guilt or innocence or to set a
convicted person's punishment; a criminal hearing
or trial.
ex parte proceeding (eks pahr-tee). (l8c) A proceed
ing in which not all parties are present or given the
opportunity to be heard. Also termed ex parte
hearing.
in camera proceeding (in kam-a-ra). (1958) A proceed
ing held in a judge's chambers or other private place. [Cases: Pretrial Procedure C=>411; Privileged Com
munications and Confidentiality C=>31.]
informal proceeding. (l8c) A trial conducted in a more
relaxed manner than a typical court trial, such as an
administrative hearing or a trial in small-claims
court. Administrative Law and Procedure
C=>469; Courts
involuntary proceeding. See involuntary bankruptcy
under BANKRUPTCY.
judicial proceeding. (16c) Any court proceeding; any
proceeding initiated to procure an order or decree,
whether in law or in equity.
noncore proceeding. See RELATED PROCEEDING.
posttrial proceeding. Action on a case that occurs after
the trial is completed.
proceeding in rem. A proceeding brought to affect
all persons' interests in a thing that is subject to the
power ofa state. [Cases: Action (.'=' 16.]
proceeding quasi in rem. A proceeding brought to
affect particular persons' interests in a thing. [Cases:
Action C=> 16.]
quasi-criminal proceeding. Procedure. A civil proceed
ing that is conducted in conformity with the rules of
a criminal proceeding because a penalty analogous
to a criminal penalty may apply, as in some juvenile
proceedings. -For example, juvenile delinquency is
classified as a civil offense. But like a defendant in
a criminal trial, an accused juvenile faces a poten
tialloss So criminal procedure rules apply.
[Cases: Action Infants C=> 194.1, 195.]
related proceeding. See RELATED PROCEEDING.
special proceeding. (18c) 1. A proceeding that can be
commenced independently of a pending action and
from which a final order may be appealed immedi
ately. 2. A proceeding involving statutory or civil
remedies or rules rather than the rules or remedies
ordinarily available under rules ofprocedure; a pro
ceeding proViding extraordinary relief. [Cases: Action
(::=20.]
summary proceeding. (l7c) A nonjury proceeding that
settles a controversy or disposes of a case in a rela
tively prompt and simple manner. Also termed
summary trial. Cf. plenary action under ACTION (4).
"Summary proceedings were such as were directed by Act
of Parliament, there was no jury, and the person accused
was acquitted or sentenced only by such person as statute
had appointed for his judge. The common law was wholly
a stranger to summary proceedings." A.H. Manchester,
Modern Legal History of England and Wales, /750-/950
160 (1980).
supplementary proceeding. (l7c) 1. A proceeding held
in connection with the enforcement ofa judgment, for
the purpose of identifying and locating the debtor's
assets available to satisfy the judgment. 2. A proceed
ing that in some way supplements another. [Cases:
Execution (~=>358; Federal Civil Procedure
2707.]
proceedings below. See STATEMENT OF THE CASE (1).
1325 process
proceeds (proh-seedz), n. (13c) 1. The value ofland,
goods, or investments when converted into money; the
amount of money received from a sale <the proceeds
are subject to attachment>. 2. Something received upon
selling, exchanging, collecting, or otherwise dispos
ing ofcollateral. UCC 9-102(a)(67) . Proceeds differ
from other types of collateral because they constitute
any collateral that has changed in form. For example,
if a farmer borrows money and gives the creditor a
security interest in the harvest, the harvested wheat is
collateral. Ifthe farmer then exchanges the harvest for
a tractor, the tractor becomes the proceeds ofthe wheat.
[Cases: Secured Transactions (;:::J 164.]
net proceeds. (18c) The amount received in a trans
action minus the costs of the transaction (such as
expenses and commissions). -Also termed net
balance.
proceeds and avails. 'The cash-surrender value ofa life
insurance policy, together with values built up since the
policy's issue date and the benefits payable on maturity
and at the death ofthe insured. [Cases: Exemptions (;:::J
50(1); Insurance C-=>3487.J
proceres (pros-d-reez). [Latin] Nobles; lords. See DOMUS
PROCERUM.
process, n. (14c) 1. The proceedings in any action or
prosecution <due process of law>. 2. A summons or
writ, esp. to appear or respond in court <service of i
process>. Also termed judicial process; legal process.
[Cases: Federal Civil Procedure (;:::J401; Process
1,3.]
"Process is so denominated because it proceeds or issues
forth in orderto bring the defendant into court, to answer
the charge preferred against him, and signifies the writs
or judicial means by which he is brought to answer." 1
Joseph Chitty, A Practical Treatise on the Criminal Law 338
(2d ed. 1826).
"The term 'process' is not limited to 'summons.' In its
broadest sense it is equivalent to, or synonymous with,
'procedure: or 'proceeding.' Sometimes the term is also
broadly defined as the means whereby a court compels a
compliance with its demands.
"'Process' and 'writ' or 'writs' are synonymous, in the sense
that every writ is a process, and in a narrow sense of the
term 'process' is limited to judicial writs in an action, or
at least to writs or writings issued from or out of a court,
under the seal thereof and returnable thereto; but it is not
always necessary to construe the term so strictly as to limit
it to a writ issued by a court in the exercise of its ordinary
jurisdiction." 72 CJ5 Process 2, at 589 (l987).
alias process. A process issued after an earlier process
has failed for some reason . Among the types of
alias process are alias execution, alias subpoena, alias
summons, and alias writ. [Cases: Process (;:::J45.j
bailable process. A process instructing an officer to
take bail after arresting a defendant. The defen
dant's discharge is required by law after the tender
of suitable security.
civil process. A process that issues in a civil lawsuit.
[Cases: Federal Civil Procedure ~'-;)401; Process <.r'-::>
1.] compulsory process. A process, with a warrant to arrest
or attach included, that compels a person to appear in
court as a witness. [Cases: Witnesses C=)2.j
criminal process. A process (such as an arrest warrant)
that issues to compel a person to answer for a crime.
[Cases: Criminal LawC=:0216.J
defective process. Void or voidable process. See void
process; voidable process.
final process. A process issued at the conclusion of a
judicial proceeding; esp., a writ ofexecution. [Cases:
Execution
irregular process. A process not issued in accordance
with prescribed practice . Whether the process is
void or merely voidable depends on the type ofirregu
larity. Cf. regular process.
legal process. Process validly issued. -Also termed
lawful process.
mesne process (meen). 1. A process issued between the
commencement ofa lawsuit and the final judgment or
determination. 2. The procedure by which a contuma
cious defendant is compelled to plead. Also termed
writ ofmesne process; writ ofmesne. |
by which a contuma
cious defendant is compelled to plead. Also termed
writ ofmesne process; writ ofmesne.
original process. A process issued at the beginning ofa
judicial proceeding. [Cases: Process C=>1.]
"Original process is any writ or notice by which a defen
dant is called upon to appear and answer the plaintiff's
declaration. The commencement of the suit at common
law was formerly by original writ. Judicial process was by
summons, attachment, arrest and outlawry." Benjamin J.
Shipman, Handbook of CommonLaw Pleading 3, at 17
(Henry Winthrop Ballantine ed., 3d ed. 1923).
regular process. A process that issues lawfully accord
ing to prescribed practice. Cf. irregular process.
summary process. 1. An immediate process, issuing
and taking effect without intermediate applications or
delays. 2. A legal procedure used to resolve a contro
versy more efficiently and expeditiously than ordinary
methods. 3. The legal documents achieving such a
result. 4. A procedure for repossessing real property
from a tenant upon default. See summary eviction
under EVICTION. [Cases: Landlord and Tenant (;:::J
293.J 5. SHOW-CAUSE PROCEEDING.
trust process. In some states (particularly in New
England), garnishment or foreign attachment. [Cases:
Garnishment (;:::J 1.]
voidable process. A defective process with a curable
defect. [Cases: Process (~151-167.]
void process. Legal process that, in some material way,
does not comply with the required form.
3. Patents. A method, operation, or series of actions
intended to achieve some new and useful end or result
by changing a material's chemical or physical charac
teristics. Process is a statutory category of patent
able invention. Cf. MACHINE; MANUFACTURE. [Cases:
Patents C=';:)7.j
"A process is a way of doing something. If it is a patentable
process, it must be a new, useful, and nonobvious way of
doing something. If the process is patentable, the result
1326 process, abuse of
of that process -the something getting done -need not
of itself be new, useful, or nonobvious. In other words,
the result of an inventive process need not be an inven
tion itself." Arthur R. Miller & Michael H. Davis, Intellectual
Property in a Nutshell 24 (2d ed. 1990).
process, abuse of. See ABUSE OF PROCESS.
process agent. See AGENT (2).
process by foreign attachment. See FACTORIZING
PROCESS.
process claim. See PATENT CLAIM.
processioning. The survey and inspection ofland bound
aries, performed esp. in the former English colonies
along the southeastern seaboard, and analogous to the
English perambulation.
process patent. See PATENT (3).
process server. (I7c) A person authorized by law or by
a court to formally deliver process to a defendant or
respondent. See SERVICE (1). [Cases: Federal Civil Pro
cedure ~418; Process ~50.]
processum continuando (pp-ses-;lm k;ln-tin-yoo-an
doh). [Latin "for continuing process"] Hist. A writ for
the continuation of process after the death ofa justice
authorized to review cases by a commission of oyer
and terminer.
proces-verbal (proh-say-vair-bahl). [French "official
record of oral proceedings"] Civil & int'l law. A
detailed, authenticated written report ofa proceeding,
esp. ofan international conference; PROTOCOL (3). A
prods-verbal may be cast in various forms, according
to the style a country prefers.
prochein ami (proh-shen ;l-mee). [Law French] See NEXT
FRIEND.
proclaim, vb. To declare formally or officially.
proclamation. A formal public announcement made by
the government.
proclamation by lord of manor. Hist. A proclamation
(repeated three times) made by the lord of a manor
requiring an heir or devisee of a deceased copyholder
to pay a fine and be admitted to the estate, failing which
the lord could seize the lands provisionally.
proclamation of exigents (eks-;l-j;lnts). Hist. Repeated
proclamations by the sheriff of an imminent outlaw
ing of a person in the county where the person lived.
See EXIGENT.
proclamation of rebellion. Hist. A proclamation made
by the sheriff, warning a person who failed to obey
a Chancery subpoena or attachment that a commis
sion of rebellion would issue if the person continued
to resist the Chancery process. See COMMISSION OF
REBELLION.
proclamation ofrecusants (rek-p-z;lnts). Hist. A proc
lamation by which persons who willfully absented
themselves from church could be convicted on non
appearance at the assizes. proclamator (prok-l;l-may-t;lr). Hist. An official at
the English Court of Common Pleas responsible for
making proclamations.
procompetitive, adj. Increasing, encouraging, or pre
serving competition. Cf. ANTICOMPETITIVE.
pro-con debate. See DEBATE.
pro-con divorce. See DIVORCE.
pro confesso (proh k;ln-fes-oh). [Latin] Roman law. As
having confessed or admitted liability, as by failing to
appear when required. A defendant who failed to
answer a bill in equity was often treated pro confesso.
pro consilio impendendo (proh k;ln-sil-ee-oh im-pen
den-doh). [Law Latin] For counsel to be given . The
phrase describes consideration in the form ofa commit
ment to give legal advice in exchange for an annuity.
pro consilio impenso (proh bn-sil-ee-oh im-pen-soh).
For counsel given.
proconsul (proh-kon-s;ll), n. [Latin] Roman law. 1. An
ex-consul whose consular powers were extended by the
Senate or emperor after leaving office. 2. The governor
ofcertain senatorial provinces.
pro convicto. As convicted.
pro corpore regni (proh kor-p;l-ree reg-llI). [Latin] In
behalf of the body of the realm.
proctor. 1. One appointed to manage the affairs of
another. 2. An advocate who represents clients in eccle
siastical courts; PROCURATOR (4). 3. DIVORCE PROCTOR.
4. An advocate who represents a party in the admi
ralty side of a district court. -Also termed (in sense
4) proctor in admiralty.
proctorship. See PROCURATORIUM.
procuracy (prok-y;l-r;l-see). The document that grants
power to an attorney-in-fact; a letter of agency.
procurare (prok-y;l-rair-ee), vb. [Latin] To take care of
another's affairs.
procuratio (prok-y;l-ray-shee-oh). [Latin] Management
of another's affairs; agency.
procuration (prok-y;l-ray-sh;ln). 1. The act of appoint
ing someone as an agent or attorney-in-fact. [Cases:
Principal and Agent ~10(1).] 2. The authority vested
in a person so appointed; the function of an attorney.
3. PROCUREMENT.
procurationes ad resignandum in favorem (prok-y;l-ray
shee-oh-neez ad rez-ig-nan-d;lm in f;l-vor-;lm). [Law
Latin] Hist. Procuratories ofresignation in favor ofthe
disponee of a vassal. The phrase referred to the rule
requiring a vassal's resignation before a superior had
to receive the disponee of a vassal to the property. See
RESIGNATION (3).
procuration fee. English law. A commission or broker
age allowed to a solicitor for obtaining a loan. -Also
termed procuration money.
procurator (prok-y;l-ray-t;lr), n. 1. Roman law. A
person informally appointed to represent another in
a judicial proceeding. Cf. COGNITOR. 2. Roman law. A
1327 produce
government official, usu. subordinate in authority to a
provincial governor; one of several imperial officers of
the Roman Empire entrusted with the management of
the financial affairs of the province and often having
administrative powers in a province as agents of the
emperor. 3. Hist. English law. An agent, attorney, or
servant. 4. Eccles. law. An advocate of a religious house;
a lawyer who represents a cleric or religious society in
legal matters. -Also termed proctor. 5. An agent or
attorney-in-fact. 6. Scots law. A solicitor who represents
clients in the lower courts; formerly, any law agent.
procuratores ecclesiae parochialis (prok-ya-ra-tor-eez
e-klee-z[h]ee-ee pa-roh-kee-ay-lis). [Latin] Hist. A
churchwarden; a representative of a parish church.
procurator fiscal. Scots law. The representative of the
Lord Advocate in inferior courts, responsible for inves
tigating sudden deaths and crimes and for prosecuting
in the sheriff or district court.
procurator in rem suam (prok-p-ray-tar in rem sly]
oo-am). [Latin] 1. Roman law. An assignee of a right of
action. _ True agency did not exist in Roman law, so a
principal whose agent had, for example, bought some
thing on the principal's behalf would have to be made
the agent's procurator to claim under that sale. 2. Scots
law. Procurator in his own affair. _ This phrase refers
to a situation in which a person acts under a power
of attorney with reference to property that the person
has acquired.
procuratorio nomine (prok-ya-ra-tor-ee-oh nahm-a
nee). [Latin] Hist. In the name and character of a procu
rator. See PROCURATOR.
procuratorium (prok-ya-ra-tor-ee-am), n. [Law Latin]
Hist. The instrument by which a person appointed a
procurator as the person's representative in litiga"
tion. Also termed proctorship; proxy.
procurator litis (prok-ya-ray-tar II-tis). [Latin] Roman
law. A person who represents another in a lawsuit.
Often shortened to procurator. Cf. DEFENSOR (1).
procurator negotiorum (prok-y~-ray-tar ni-goh-shee
or-am). [Latin] Civil law. An attorney-in-fact; a manager
of business affairs for another.
procurator provindae (prok-ya-ray- tar pra-vin-shee-ee).
[Latin] Roman law. See PROCURATOR (2).
procuratory (prok-ya-ra-tor-ee), adj. Of, relating to, or
authorizing a procuration. See PROCURATION.
procuratory, n. 1. Civil law. Authorization of one person
to act for another. 2. Scots law. A mandate or com
mission for one person to act for another; POWER OF
ATTORNEY. See PROCURATOR.
procuratrix (prok-ya-ray-triks). [Latin] Hist. A female
agent or attorney-in-fact.
procurement (proh-kyoor-mant), n. (14c) 1. The act of
getting or obtaining something or of bringing some
thing about. Also termed procuration. 2. The act of
persuading or inviting another, esp. a woman or child,
to have illicit sexual intercourse. -procure, vb.
procurement contract. See CONTRACT. procurement of breach of contract. See TORTIOUS
INTERFERENCE WITH CONTRACTUAL RELATIONS.
procurer. (15c) One who induces or prevails upon
another to do something, esp. to engage in an illicit
sexual act. See PIMP.
procuring agent. See AGENT (2).
procuring an abortion. See ABORTION.
procuring cause. See CAUSE (1).
procuring miscarriage. Hist. See ABORTION (I).
pro. def. abbr. PRO DEFENDENTE.
pro defectu emptorum (proh di-fek-t[y]oo emp-tor-am).
[Latin] For want ofpurchasers.
pro defectu exitus (proh di-fek-t[yJoo eks-a-tas). [Latin]
For, or in case of, default of issue.
pro defectu haeredis (proh di-fek-t[yJoo h<l-ree-dis).
[Latin] For want ofan heir.
pro defectu justitiae (proh di-fek-t[y]oo jas-tish-ee-ee).
[Latin] For defect or want of justice.
pro defendente (proh def-an-den-tee). [Latin] For the
defendant. Abbr. pro. def. Cf. PRO QUERENTE.
pro derelicto (proh der-a-lik-toh). [Latin] As derelict
or abandoned. This refers to property subject to
usucapio. See USUCAPIO.
prodigal (prod-a-gal), n. Civil law. A person whose
affairs are managed by a curator because ofthe person's
wasteful spending or other bad conduct. -In Roman
law, the agnatic family of a prodigal (prodigus) or
spendthrift could result in that person's being prohib
ited from engaging in certain legal transactions, and
the person's estate being put in the charge ofa curator.
See cura prodigi under CURA.
pro dignitate regali (proh dig-na-tay-tee ri-gay-h).
[Latin] In consideration of the royal dignity.
prodigus (prod-a-gas), n. & adj. [Latin "a spendthrift"]
Roman law. See PRODIGAL.
prodition (pra-dish-;m). Archaic. Treason; treachery.
proditor (prod-i-tar), n. Roman law. 1. A traitor. 2. An
informer.
proditorie (proh-di |
), n. Roman law. 1. A traitor. 2. An
informer.
proditorie (proh-di-tor-ee-ee), adv. [Latin] Treasonably.
This word formerly appeared in a treason indict
ment.
pro diviso (proh di-VI-zoh). [Latin] As divided; i.e., in
severalty.
pro domino (proh dom-a-noh). [Latin] As master or
owner; in the character ofa master.
pro donatione (proh da-nay-shee-oh-nee). [Latin]
Roman & civil law. As a gift; as in case ofgift. This is
a ground of usucapio. Also written pro donato. See
L'SUCAPIO.
pro dote (proh doh-tee). [Latin] Civil law. As a dowry;
by title of dowry. _ 1his is a ground of usucapio. See
USUCAPIO.
produce (proh-doos), n. The product of natural growth,
labor, or capital; esp., agricultural products.
1328 produce
produce (pra-doos), vb. (15c) 1. To bring into existence;
to create. 2. To provide (a document, witness, etc.) in
response to subpoena or discovery request. 3. To yield
(as revenue). 4. To bring (oil, etc.) to the surface of the
earth.
producent (pra-d[y]oo-s<Jnt), n. Hist. Eccles. law. The
party calling a witness.
producer. See INSURANCE AGENT.
producer price index. An index of wholesale price
changes, issued monthly by the U.S. Bureau of Labor
Statistics. -Formerly also termed wholesale price
index. Cf. CONSUMER PRICE INDEX.
producing cause. See proximate cause under CAUSE (1).
product. (1825) Something that is distributed com
mercially for use or consumption and that is usu. (1)
tangible personal property, (2) the result of fabrication
or processing, and (3) an item that has passed through
a chain of commercial distribution before ultimate
use or consumption. See ARTICLE OF MANUFACTGRE;
PRODUCTS LIABILITY. [Cases: Products Liability
120.)
defective product. (1903) A product that is unreason
ably dangerous for normal use, as when it is not fit
for its intended purpose, inadequate instructions are
provided for its use, or it is inherently dangerous in
its design or manufacture. lCases: Products Liability
C=>122.)
product-by-process claim. See PATENT CLAIM.
product claim. See PATENT CLAIM.
product defect. See DEFECT.
product disparagement. See TRADE DISPARAGEMENT.
product-extension merger. See MERGER.
production burden. See BURDEN OF PRODUCTION.
production casing. See CASING.
production for commerce. The production of goods that
an employer intends for interstate commerce. _This is
one criterion by which an employer may be subject to
the Fair Labor Standards Act. [Cases: Commerce
62.44-62.67; Labor and Employment
production of suit. (1830) Common-law pleading. The
plaintiff's burden to produce evidence to confirm the
allegations made in the declaration.
production payment. Oil & gas. A share ofoil-and-gas
production from property, free of the costs of produc
tion, ending when an agreed sum has been paid. [Cases:
Mines and Minerals (;:;)79.1(2).]
productio sectae (pra-di'lk-shee-oh sek-tee). [Latin] See
PRODUCTION OF SUIT.
product liability. See PRODUCTS LIABILITY.
product-liability loss. See LOSS.
product-line exception. An exception from the usual
rule that a successor corporation is not liable for the
acts of its predecessor, arising when the successor
acquired all the predecessor's assets, held itself out as a continuation of the predecessor by producing the same
product line under the same or a similar name, and
benefited from the predecessor's goodwill.
product mark. See product trademark under TRADE
MARK.
product market. See MARKET.
product rule. A means ofcalculating the likelihood that
a series ofindependent events will occur jointly, done
by multiplying together the probability of each event.
[Cases: Criminal LawC=>388.2.]
products liability, n. (1925) 1. A manufacturer's or
seller's tort liability for any damages or injuries suffered
by a buyer, user, or bystander as a result of a defective
product. -Products liability can be based on a theory of
negligence, strict liability, or breach of warranty. [Cases:
Products Liability C=>111.]2. The legal theory by which
liability is imposed on the manufacturer or seller of
a defective product. 3. The field of law dealing with
this theory. -Also termed product liability; (spedf.)
manufacturer's liability. See LIABILITY. -products
liability, adj.
"The law of products liability is that body of common and
statutory law permitting money reparation for substan
dard conduct of others resulting in productrelated injury
to the injured party's person or property. Resistance to
the description of products liability as a doctrine having
receded, there is today a guiding tenet in the law of prod
uctrelated injury that is the distillate of seventy years of
decisional law. The birth of the doctrine can be dated at
1916, the publication of the immensely influential decision
in MacPherson v. Buick Motor Co. [217 N.Y. 382, 111 N.E.
1050 (1916)]. in which the New York Court of Appeals held
that the manufacturer of any product capable of serious
harm if incautiously made owed a duty of care in the deSign,
inspection, and fabrication of the product, a duty owed not
only to the immediate purchaser but to all persons who
might foreseeably come into contact with the product. Fol
lowing MacPherson, the doctrine as formed by decisions
of the ensuing decades is that a buyer, user, consumer
or bystander in proximity to an unreasonably dangerous
product, and who is injured in person or in property by its
dangerous propensities, may recover in damages from the
manufacturer or intermediate seller." 1 M. Stuart Madden,
Products Liability 1.1, at 1-2 (2d ed. 1988).
strict products liability. (1964) Products liability
arising when the buyer proves that the goods were
unreasonably dangerous and that (1) the seller was
in the business ofselling goods, (2) the goods were
defective when they were in the seller's hands, (3) the
defect caused the plaintiff's injury, and (4) the product
was expected to and did reach the consumer without
substantial change in condition. [Cases: Products
Liability C=> 113.)
products-liability action. A lawsuit brought against a
manufacturer, seller, or lessor of a product regard
less of the substantive legal theory or theories upon
which the lawsuit is brought -for personal injury,
death, or property damage caused by the manufac
ture, construction, design, formulation, installation,
preparation, or assembly ofa product. -Also termed
product-liability action. [Cases: Products Liability C=>
110; Sales C=>425.)
products-liability insurance. See INSURANCE.
1329
product test. See DURHAM RULE.
product trademark. See TRADEMARK.
pro emptore (proh emp-tor-ee). [Latin] Civil law. As a
purchaser; by the title ofa purchaser. See USUCAPIO.
pro et durante. For and during.
pro facto (proh fak-toh). [Latin] For the fact; considered
or held as fact.
pro falso clamore suo (proh fal-soh [or fawl-soh) kl<l
mor-ee s[y)oo-oh). [Latin "for his false claim") A
nominal amercement of a plaintiff for a false allega
tion, inserted in a judgment for the defendant.
profane, adj. (Of speech or conduct) irreverent to some
thing held sacred.
profanity. Obscene, vulgar, or insulting language;
BLASPHEMY Profanity is distinguished from mere
vulgarity and obscenity by the additional element
of irreverence toward or mistreatment ofsomething
sacred. [Cases: Criminal Law (;=:>45.20.)
profectitium peculium (pro-fek-tish-ee-<lm p<l-kyoo
lee-<lm). Hist. Roman law. Property that a father allowed
a son in patria potestas to manage and use while the
father retained ownership. -Also written peculium
profectitium.
profectitius (proh-fek-tish-ee-<ls). [Latin) That which
descends from an ancestor.
profer (proh-br). Hist. 1. An offer or proffer. 2. A return
made by a sheriff of an account into the Exchequer.
proferens (proh-fer-enz). [Latin] The party that proposes
a contract or a condition in a contract. PI. proferentes
(proh-f<l-ren-teez).
profert (proh-f<lrt). (I8c) Common-law pleading. A dec
laration on the record stating that a party produces in
court the deed or other instrument relied on in the
pleading. [Cases: Bills and Notes (;=:>488; Pleading Q
305.]
profert in curia (proh-fdrt in kyoor-ee-d). [Law Latin]
He produces in court. In common-law pleading,
this phrase was used in a declaration asserting that
the plaintiff was ready to produce, or had produced,
the deed or other instrument on which the action was
founded.
profess, vb. (16c) To declare openly and freely; to
confess.
professio juris (pr<l-fes[h)-ee-oh joor-is). [Latin] A rec
ognition ofthe right ofa contracting party to stipulate
the law that will govern the contract.
profession. (15c) 1. A vocation requiring advanced
education and training; esp., one of the three tradi
tionallearned professions -law, medicine, and the
ministry.
"Learned professions are characterized by the need of
unusual learning, the existence of confidential relations, profit
may climb, to the professional plane:' Commonwealth v.
Brown, 20 N.E.2d 478, 481 (Mass. 1939).
2. Collectively, the members ofsuch a vocation.
professional, n. (1846) A person who belongs to a learned
profession or whose occupation requires a high level of
training and proficiency.
professional association. See ASSOCIATION.
professional corporation. See CORPORATION.
professional goodwill. See personal goodwill under
GOODWILL.
professionalism. The practice of a learned art in a
characteristically methodical, courteous, and ethical
manner.
professional negligence. See MALPRACTICE.
professional relationship. See RELATIONSHIP.
proffer (prof-dr), vb. (l4c) To offer or tender (some
thing, esp. evidence) for immediate acceptance. [Cases:
Criminal Law C':.:o670; Federal Civil Procedure
2013; Trial (7.::>44.]- proffer, n.
proffered evidence. See EVIDE:NCE.
proficua (prd-fik-yoo-<l). [Law Latin] Hist. Profits; esp.,
the profits of an estate in land.
profiling. 1. See RACIAL PROFILING. 2. See LINGUISTIC
PROFILING.
profit, n. (13c) 1. The excess of revenues over expendi
tures in a business transaction; GAIN (2). Cf. EARNINGS;
INCOME. [Cases: Internal Revenue {>3178; Taxation
(;=:>3466.]
accumulated profit. Profit that has accrued but not yet
been distributed; earned surplus. -Also termed undi
vided profit. See retained earnings under EARNINGS.
[Cases: Internal Revenue <:;=-.)3833.]
gross profit. Total sales revenue less the cost of the
goods sold, no adjustment being made for additional
expenses and taxes. Cf. net profit. [Cases: Internal
Revenue Cc:::>3175; Taxation (;=:>3447,3466.]
lost profits. See LOST PROFITS.
mesne profits. The profits of an estate received by a
tenant in wrongful possession between two dates.
Also termed (archaically) medium tempus. [Cases:
Ejectment Q 124.]
netprofit. Total sales revenue less the cost of the goods
sold and all additional expenses. Also termed net
revenue. Cf. gross profit. [Cases: Internal Revenue
3175; Taxation (;=:>3448,3466.]
operating profit. Total sales revenue less all operating
expenses, no adjustment being made for any nonoper
ating income and expenses, such as interest payments.
[Cases: Internal Revenue (;=:>3175; Taxation Q 3448,
3466.]
the adherence to a standard of ethics higher than that ofthe paper profit. A profit that is anticipated but not yet
market place, and in a profession like that of medicine by realized. Gains from stock holdings, for example, intimate and delicate personal ministration. Traditionally,
the learned professions were theology. law and medicine; are paper profits until the stock is actually sold at a
but some other occupations have climbed, and still others price higher than its original purchase price. -Also
1330 profit-and-Ioss account
termed unrealized profit. [Cases: Internal Revenue
(;::::;3178; Taxation (;:::;)3449.J
short-swingproJits. See SHORT-SWING PROFITS.
surplus profit. Corporations. The excess ofrevenue over
exp |
Jits. See SHORT-SWING PROFITS.
surplus profit. Corporations. The excess ofrevenue over
expenditures . Some jurisdictions prohibit the decla
ration ofa dividend from sources other than surplus
profit. [Cases: Corporations 151.]
undistributed profit. See retained earnings under
EARNINGS.
undivided profit. See accumulated profit.
unrealized profit. See paper profit.
2. A servitude that gives the right to pasture cattle, dig
for minerals, or otherwise take away some part of the
soil; PROFIT APRENDRE A profit may be either appur
tenant or in gross. See SERVITUDE (1). [Cases: Licenses
profit appendant (a-pen-d;mt). A profit annexed to
land by operation of law; esp., a common ofpasture.
See common appendant under COMMON.
profit appurtenant (a-p<Jrhm-ant). A profit, whether
several or in common, attached to land, for the benefit
of certain other identified land, by the act of the
parties (as by grant or by prescription). See common
appurtenant under COMMON.
profit in gross (in grohs). A profit exercisable by the
owner independently ofhis or her ownership ofland.
See common in gross under COMMON.
"[AJ right to take fish from a canal without stint (Le., without
limit) can exist as a profit in gross, but not, as already seen,
as a profit appurtenant. A profit in gross is an interest in
land which will pass under the owner's will or intestacy or
can be sold or dealt with in any of the usual ways." Robert
E. Megarry & M.P. Thompson, A Manual of the Law ofReal
Property 377 (6th ed. 1993).
profitpur cause de vicinage (par kawz da vis-a-nij). A
profit arising when the holders ofadjoining commons
have allowed their cattle to stray on each other's lands.
A claim for this profit fails ifone ofthe commoners
fences off the common or has in the past driven off
the other commoner's cattle.
profit-and-Ioss account. See ACCOUNT.
profit-and-Ioss statement. See INCOME STATEMENT.
profit it prendre (a prawn-dra or ah prahn-dar). [Law
French "profit to take"] (usu. pI.) (l7c) A right or privi
lege to go on another's land and take away something
ofvalue from its soil or from the products ofits soil (as
by mining, logging, or hunting). Also termed right of
common. PI. profits it prendre. Cf. EASEMENT. [Cases:
Licenses <'>;)43,]
"A profit aprendre has been described as 'a right to take
something off another person's land: This is too wide; the
thing taken must be something taken out of the soil, Le.,
it must be either the soil, the natural produce thereof, or
the wild animals existing on it; and the thing taken must
at the time of taking be susceptible of ownership, A right
to 'hawk, hunt, fish, and fowl' may thus exist as a profit,
for this gives the right to take creatures living on the soil
which, when killed, are capable of being owned. But a right
to take water from a spring or a pump, or the right to water cattle at a pond. may be an easement but cannot
be a profit; for the water, when taken, was not owned by
anyone nor was it part of the soil." Robert E. Megarry & M.P.
Thompson, A Manual of the Law of Real Property 375-76
(6th ed. 1993).
profiteering, n, (1814) The taking advantage ofunusual
or exceptional circumstances to make excessive profits,
as in the selling ofscarce goods at inflated prices during
war. [Cases: War and National Emergency <8='59.]
profiteer, vb.
profit insurance. See INSURANCE.
profit margin. L The difference between the cost of
something and the price for which it is sold. 2. The
ratio, expressed as a percentage, between this difference
and the selling price . For example, a widget costing
a retailer $10 and selling for $15 has a profit margin
of 33% ($5 difference divided by $15 selling price).
Often shortened to margin.
profit-sharing plan. An employee benefit plan that
allows an employee to share in the company's profits .
ERISA governs the administration ofmany profit -shar
ing plans, which provide for discretionary employer
contributions and provide a definite predetermination
formula for allocating the contributions to the plan
among the participants. Contributions are frequently
allocated in proportion to each participant's com
pensation. See EMPLOYEE BENEFIT PLAN; EMPLOYEE
RETIREMENT INCOME SECURITY ACT. [Cases: Labor and
Employment
qualified profit-sharing plan. A plan in which an
employer's contributions are not taxed to the employee
until distribution . The employer is allowed to deduct
the contributions. IRC (26 USCA) 401(a). -Often
shortened to qualified plan. [Cases: Internal Revenue
(;::::;3578.]
pro forma (proh for-rna), adj. [Latin "for form"] (16c)
1. Made or done as a formality. 2. (Of an invoice or
financial statement) provided in advance to describe
items, predict results, or secure approval.
pro forma amendment. See AMENDMENT (3).
pro forma earnings. See operating earnings under
EARNINGS.
pro forma session. See SESSION (1).
progener (proh-jee-nar). [Latin] A grandson-in-law.
progeny (proj-<'l-nee), n. pl. (14c) 1. Children or descen
dants; offspring <only one of their progeny attended
law school>. 2. In a figurative sense, a line ofprecedents
that follow a leading case <Erie and its progeny>.
prognosis (prog-noh-sis). (l7c) 1. The process of fore
casting the probable outcome ofa present medical con
dition (such as a disease). 2. The forecast of such an
outcome. Cf, DIAGNOSIS. [Cases: Health (;:::-637-640,
906.]
program. Parliamentary law. 1. An agenda for a meeting
or a convention, listing the order of business and
possibly including educational or social events. See
AGENDA; business meeting under MEETING. 2. A speech
1331
or other presentation within a meeting offered for the
assembly's information or for the members' education
or entertainment, but not for their formal consideration
or action as a deliberative assembly.
program committee. See COMMITTEE.
program trading. A form of computerized securi
ties trading that usu. involves buying or selling large
amounts of stocks while simultaneously selling or
buying index futures in offsetting amounts.
pro gravitate admissi (proh grav-J-tay-tee ad-mis-I).
[Latin) Hist. According to the gravity of the offense.
progressive lawyering. See CAUSE LAWYERING.
progressive loss. See LOSS.
progressive tax. See TAX.
pro hac vice (proh hahk vee-chay or hak VI-see also
hahk vees). [Latin] (17c) For this occasion or particu
lar purpose. -The phrase usu. refers to a lawyer who
has not been admitted to practice in a particular juris
diction but who is admitted there temporarily for the
purpose ofconducting a particular case. -Abbr. p.h.v.
See admission pro hac vice under ADMISSION (2). For
owner pro hac vice, see demise charter under CHARTER
(8). [Cases: Attorney and Client C=:1O.]
prohibit, vb. 1. To forbid by law. 2. To prevent or
hinder.
prohibited and reserved trademarks. See TRADE
MARK.
prohibited degree. See DEGREE.
prohibited substitution. See SUBSTITUTION.
prohibitio de vasto, directa parti (proh-hJ-bish-ee-oh
dee vas-toh, di-rek-td pahr-tr). [Latin "prohibition
of waste, directed to the party"] Hist. A writ issued
during litigation prohibiting a tenant from commit
ting waste.
prohibition. (lSc) 1. A law or order that forbids a certain
action. 2. An extraordinary writ issued by an appellate
court to prevent a lower court from exceeding its juris
diction or to prevent a nonjudicial officer or entity from
exercising a power. -Also termed (in sense 2) writ
ofprohibition; inhibition; (in Scots law) inhibition. Cf.
WRIT OF CONSULTATION. [Cases: Prohibition C:=> 1.)
"Prohibition is a kind of common-law injunction to prevent
an unlawful assumption of jurisdiction .... It is a com
monlaw injunction against governmental usurpation,
as where one is called coram non judice (before a judge
unauthorized to take cognizance of the affair), to answer
in a tribunal that has no legal cognizance of the cause. It
arrests the proceedings of any tribunal, board, or person
exercising judicial functions in a manner or by means not
within its jurisdiction or discretion." Benjamin J. Shipman,
Handbook of Common-Law Pleading 341, at 542 (Henry
Winthrop Ballantine ed., 3d ed. 1923).
3. (cap.) The period from 1920 to 1933, when the manu
facture, transport, and sale of alcoholic beverages in
the United States was forbidden by the 18th Amend
ment to the Constitution. -The 18th Amendment was
repealed by the 21st Amendment. [Cases: Intoxicating
Liquors C=: 17.) promatertera magna
prohibitive statute. See STATUTE.
prohibitory injunction. See INJUNCTION.
prohibitory interdict. See INTERDICT (1).
pro ilia vice (proh iI-d VI-see). [Latin] For that turn.
pro indefenso (proh in-da-fen-soh). [Latin] As unde
fended; as making no defense.
pro indiviso (proh in-dd-vI-Zoh), adj. [Latin "as undi
vided"] (Of property) owned or possessed by several
persons at the same time, without partition.
pro interesse suo (proh in-t;Jr-es-ee s[yJoo-oh). [Latin]
According to his interest; to the extent ofhis interest.
A third party. for example, may be allowed to intervene
pro interesse suo.
project financing. See FINANCING.
projectio (prJ-jek-shee-oh). [Latin] Alluvion created by
the sea. See ALLUVION.
projector. See PROMOTER.
projet (proh-zhay). [French] Int'l law. A draft of a
proposed measure, treaty, or convention.
pro laesione fidei (proh lee-zhee-oh-nee fI-dee-I). [Latin]
For breach of faith.
pro legato (proh Id-gay-toh). [Latin] As a legacy; by the
title of a legacy . This is a ground of usucapio. See
USUCAPIO.
proles (proh-Ieez). [Latin] Offspring; esp., the issue ofa
lawful marriage.
proletariat (proh-Id-tair-ee-dt). The working class; those
without capital who sell their labor to survive.
proletarius (proh-ld-tair-ee-as), n. [Latin] Roman law.
One of the common people; a member of a lower class
who owned little or no property.
prolicide (proh-IJ-sId). (1826) 1. The killing ofoffspring;
esp., the crime ofkilling a child shortly before or after
birth. 2. One who kills a child shortly before or after
birth. Cf. INFANTICIDE. -prolicidal, adj.
prolixity (proh-lik-sa-tee). (14c) The unnecessary and
superfluous stating of facts and legal arguments in
pleading or evidence.
prolixity rejection. See REJECTION.
pro loco et tempore (proh loh-koh et tern-pd-ree). [Latin]
Hist. For the place and time.
prolocutor (proh-lok-Yd-tdr). 1. Eccles. law. The president
or chair of a convocation. 2. Hist. The speaker of the
British House ofLords. -This office now belongs to the
Lord Chancellor. -Also termed (in sense 2) forspeca.
pro majori cautela (proh md-jor-I kaw-tee-l<3). [Latin]
For greater caution; by way of additional security. _
This phrase usu. applies to an act done or to a clause
put in an instrument as a precaution.
promatertera (proh-md-t;)r-tdr-d). [Latin] Roman &
civil law. A great-great-aunt; the sister of one's great
grandmother.
promatertera magna (proh-md-tar-tJr-<3 mag-nJ).
(Latin] Civil law. A great-great-great-aunt.
promise, n. (15c) 1. The manifestation of an intention
to act or refrain from acting in a specified manner,
conveyed in such a way that another is justified in
understanding that a commitment has been made; a
person's assurance that the person will or will not do
something. A binding promise one that the law
will enforce -is the essence of a contract. [Cases: Con
tracts
"By common usage, a promise is an expression leading
another person justifiably to expect certain conduct on
the part of the promisor. Such an expression is a promise,
whether enforceable at law or not. It is indeed an essen
tial element in every contract. Society does not guarantee
the fulfillment of all expectations so induced." William R.
Anson, Principles of the Law of Contract 6 n.3 (Arthur L.
Corbin ed .. 3d Am. ed. 1919).
"[Promise] means not only the physical manifestations of
assurance by words |
d Am. ed. 1919).
"[Promise] means not only the physical manifestations of
assurance by words or conduct, but also the moral duty to
make good the assurance by performance, If by reason of
other operative facts the promise is recognized as creating
a legal duty, the promise is a contract:' Samuel Williston,
A Treatise on the Law of Contracts lA, at 4 (Walter H.E.
Jaeger ed., 3d ed, 1957).
"It is well to make clear two points at the outset .... The
first is that I do not believe that all promises are morally
binding; accordingly, I use the term 'promise' without
prejudging the question whether the promise creates
an obligation. The second is that, where a promise does
create an obligation, the reason for that may depend upon
whether the promise was explicit or implied. There is thUS,
in my view, a fundamental distinction between explicit
and implied promises, and when I use the word 'promise'
Without qualification, I normally mean an explicit promise."
P.S. Atiyah, Promises, Morais, and Law 8 (1981).
2. The words in a promissory note expressing the
maker's intention to pay a debt. A mere written
acknowledgment that a debt is due is insufficient to
constitute a promise. [Cases: Bills and Notes C=>30.]
promise, vb.
aleatory promise (ay-lee-a-tor-ee). A promise condi
tional on the happening of a fortuitous event, or on
an event that the parties believe is fortuitous. [Cases:
Contracts (;::::>218.]
alternative promise. (l7c) A contractual promise to do
one oftwo or more things, anyone ofwhich qualifies
as consideration.
"A promise in the alternative may be made because each of
the alternative performances is the object of desire to the
promisee. Or the promisee may desire one performance
only, but the promisor may reserve an alternative which he
may deem advantageous. In either type of case the promise
is consideration if it cannot be kept without some action or
forbearance which would be consideration if it alone were
bargained for. But if the promisor has an unfettered choice
of alternatives, and one alternative would not have been
consideration if separately bargained for, the promise in
the alternative is not consideration." Restatement (Second)
of Contracts 77 cmt. b (1981).
bare promise. See gratuitous promise.
collateral promise. A promise to guarantee the debt of
another. made primarily without benefit to the party
making the promise . Unlike an original promise,
a collateral promise must be in writing to be enforce
able. See MAIN-PURPOSE RULE. [Cases: Guaranty(;::::>
1.] conditional promise. (l6c) A promise that is condi
tioned on the occurrence of an event other than the
lapse oftime <she made a conditional promise to sell
the gold on April 2 unless the price fell below $300
an ounce before that time> . A conditional promise
is not illusory as long as the condition is not entirely
within the promisor's control. [Cases: Contracts C=>
58,218.]
corresponding promise. A mutual promise calling for
the performance ofan act substantially similar to the
act called for by the other mutual promise, both acts
being in pursuit of a common purpose.
counterpromise. See COUNTERPROMISE.
dependent promise. (1829) A promise to be performed
by a party only when another obligation has first been
performed by another party. [Cases: Contracts
173,278(1).]
divisible promises. Promises that are capable of being
divided into independent parts.
false promise. A promise made with no intention of
carrying it out. Cf. promissory fraud under FRAUD.
fictitious promise. See implied promise.
gratuitous promise. (l7c) A promise made in exchange
for nothing; a promise not supported by consider
ation. A gratuitous promise is not ordinarily legally
enforceable. -Also termed bare promise; naked
promise. [Cases: Contracts
illusory promise. (1841) A promise that appears on its
face to be so insubstantial as to impose no obligation
on the promisor; an expression cloaked in promis
sory terms but actually containing no commitment
by the promiSOr. An illusory promise typically,
by its terms, makes performance optional with the
promisor. For example, if a guarantor promises to
make good on the principal debtor's obligation "as
long as I think it's in my commercial interest," the
promisor is not really bound. [Cases: Contracts
10(1).]
"An apparent promise which, according to its terms, makes
performance optional with the promisor no matter what
may happen, or no matter what course of conduct in other
respects he may pursue, is in fact no promise. Such an
expression is often called an illusory promise:' Samuel Wil
liston, A Treatise on the Law ofContracts 1A, at 5 (Walter
H.E. Jaeger ed., 3d ed. 1957).
implied promise. (I8c) A promise created by law to
render a person liable on a contract so as to avoid
fraud or unjust enrichment. Also termed fictitious
promise. [Cases: Implied and Constructive Contracts
C=t.J
"Under some circumstances the promise inferred is called
an implied promise and in others it is referred to as a con
structive promise. But whichever conclUSion is reached, the
result is the same. In other words an implied promise and a
constructive promise are not treated differently. The theo
retical difference between the two is that a promise implied
from the conduct of the parties arises by construction of
law, only when justice requires it under the circumstances."
John D, Calamari &Joseph M. Perillo, The Law ofContraas
4-12, at 234-35 (3d ed. 1987).
1333
independent promise. See unconditional promise.
marriage promise. Family law. A betrothal; an engage
ment to be married. -Also termed agreement to
marry; promise to marry; promise ofmarriage. [Cases:
Breach of Marriage Promise (;::> L)
mutualpromises. (16c) Promises given Simultaneously
by two parties, each promise serving as consideration
for the other. See bilateral contract under CONTRACT.
nakedpromise. See gratuitous promise.
newpromise. A previously unenforceable promise that
a promisor revives and agrees to fulfill, as when a
debtor agrees to pay a creditor an amount discharged
in the debtor's bankruptcy.
original promise. A promise to guarantee the debt of
another, made primarily for the benefit of the party
making the promise . An original promise need not
be in writing to be enforceable. See MAIN-PURPOSE
RULE. [Cases: Frauds, Statute of(;=>23.)
promise implied infact. (1909) A promise existing by
inference from the circumstances or actions of the
parties. See implied promise. [Cases: Contracts
27.)
promise in consideration ofmarriage. A promise
for which the actual performance of the marriage is
the consideration, as when a man agrees to transfer
property to a woman if she will marry him. A
promise to marry, however, is not considered a
promise in consideration ofmarriage. [Cases: Breach
of Marriage Promise (;::>5.)
promise in restraint oftrade. A promise whose per
formance would limit competition in any business
or restrict the promisor in the exercise of a gainful
occupation. Such a promise is usu. unenforceable.
[Cases: Contracts (;::> 116.]
remedial promise. A seller's promise to repair or
replace goods or to refund the price if the goods (1)
do not conform to the contract or to a representation
at the time ofthe delivery ofthe goods, (2) conform at
the time ofdelivery but later fail to perform as agreed,
or (3) contain a defect. DCC 2-IQ2(a)(31).
unconditional promise. (1802) A promise that either is
unqualified or requires nothing but the lapse oftime
to make the promise presently enforceable . A party
who makes an unconditional promise must perform
that promise even though the other party has not
performed according to the bargain. -Also termed
independent promise. [Cases: Contracts (;::>218.]
voidable promise. A promise that one party may, under
the law, declare void by reason of that party's inca
pacity or mistake, or by reason of the fraud, breach,
or other fault of the other party. [Cases: Contracts
(;::>9S.]
promisee (prom-is-ee). (lSc) One to whom a promise
is made.
promise not to compete. See noncompetition covenant
under COVENANT (1). promoting prostitution
promise of marriage. See marriage promise under
PROMISE.
promise to marry. See marriage promise under
PROMISE.
promisor (prom-is-or). (17c) One who makes a promise;
esp., one who undertakes a contractual obligation.
promissor (prom-is-"r). [Latin] Civil law. 1. A promisor;
specif., a party who undertakes to do a thing in response
to the interrogation ofthe other party (the stipulator).
2. See REUS PROMITTENDI.
promissory, adj, (15c) Containing or consisting of a
promise <the agreement's promissory terms>.
promissory condition. See CONDITION (2).
promissory estoppel. See ESTOPPEL.
promissory fraud. See FRAUD.
promissory note. See NOTE (1).
promissory oath. See OATH.
promissory representation. See REPRESENTATION (I),
promissory restraint. An attempt by an otherwise effec
tive conveyance or contract to discourage a later con
veyance by imposing contractual liability on anyone
who makes a later conveyance. [Cases: Perpetuities
(;::>6(1).]
promissory warranty. See WARRANTY (3).
pro modo admissi (proh moh-doh ad-mis-I). [Latin]
Hist. According to the measure ofthe offense.
promoter. (14c) 1. A person who encourages or incites.
2. A founder or organizer ofa corporation or business
venture; one who takes the entrepreneurial initiative
in founding or organizing a business or enterprise.
Formerly also termed projector. [Cases: Corporations
(;::>30.]
''The complete judicial acceptance of the term 'promoter' is
a matter of comparatively recent date. In some of the early
cases. persons engaged in the formation of a corporation
are spoken of as 'projectors.' Other cases of about the
same period, though recognizing the obligations flowing
therefrom, do not give any name to the relation in which
such persons stand to the contemplated company. The
word promoter, while undoubtedly employed in common
parlance before that time, does not seem to have been
used in any reported decision until after it had been used,
and for the purposes of the act defined, in the Joint Stock
Companies Act of 1844.. , . [AI person may be said to be
a promoter of a corporation if before its organization, he
directly or indirectly solicits subscriptions to its stock, or
assumes to act in its behalf in the purchase of property,
or in the securing of its charter, or otherwise assists in its
organization." Manfred W. Ehrich, The Law of Promoters
1. at 2-3; 13, at 15 (1916).
"A promoter is a person who takes the initiative in develop
ing and organizing a new business venture. A promoter may
act either alone or with copromoters. The term 'promoter'
is not one of opprobrium; indeed, the promoter is often
an aggressive, imaginative entrepreneur who fulfills the
essential economic function of taking an idea and creating
a profitable business to capitalize on the idea." Robert W.
Hamilton, The Law of Corporations in a Nutshell 64 (3d
ed. 1991).
promoting prostitution. See PANDERING (1).
prompt, vb. To incite, esp. to immediate action.
promulgare (proh-mal-gair-ee), vb. [Latin] Roman law.
To promulgate; to make (a law) publicly known after
its enactment.
promulgate (pr::l-mal-gayt or prom-al-gayt), vb. (16c)
1. To declare or announce publicly; to proclaim. 2.
To put (a law or decree) into fOfce Of effect. 3. (Of an
administrative agency) to carry out the formal process
of rulemaking by publishing the proposed regulation,
inviting public comments, and approving or rejecting
the proposal. -promulgation (prom-al-gay-shan or
proh-m::ll-), n.
promulgation (prom-al-gay-sh;m or proh-mal-). The
official publication ofa new law or regulation, by which
it is put into effect.
promutullm (proh -myoo-choo-am). [Latin "as if lent"]
Civil law. A quasi-contract in which a person who
received money or property in error agrees to return
what was received to the person who paid it.
pronepos (proh-nep-ohs). [Latin] Roman & civil law. A
great-grandson. PI. pronepotes.
proneptis (proh-nep-tis). [Latin] Roman & civil law. A
great-granddaughter. PI. proneptes.
pro non adjecto (proh non a-jek-toh). [Latin] Hist. As not
added. _ For example, a nonessential deed provision
might be treated pro non adjecto.
pro non scripto (proh non skrip-toh). [Latin] As not
written; as though it had not been written. - The phrase
usu. referred to testamentary conditions that a court
would disregard because the conditions were impos
sible, illegal, or meaningless.
pronotary (proh-noh-ta-ree), n. First notary.
pronounce, vb. (14c) To announce formally <pronounce
judgment>.
pronunciation (pra-nan- |
vb. (14c) To announce formally <pronounce
judgment>.
pronunciation (pra-nan-see-ay-shan). Archaic. A
sentence or decree.
pronurus (proh-na-ras). [Latin] Roman & civil law. The
wife ofa grandson or great-grandson. PI. pronurus.
proof, n. (l3c) 1. The establishment O[ refutation of
an alleged fact by evidence; the persuasive effect of
evidence in the mind ofa fact-finder. [Cases: Evidence
(;::=-584.] 2. Evidence that determines the judgment of
a court. 3. An attested document that constitutes legal
evidence.
affirmative proof. (18c) Evidence establishing the fact
in dispute by a preponderance ofthe evidence. [Cases:
Evidence C=99.]
conditional proof. (1931) A fact that amounts to
proof as long as there is no other fact amounting to
disproof. Also termed presumptive proal
double proof. (1955) L Bankruptcy. Proof ofclaims by
two Of more creditors against the same debt. _ This
violates the general rule that there can be only one
claim with respect to a single debt. [Cases: Bank
ruptcy (::::>2891.] 2. Evidence. Corroborating government evidence (usu. by two witnesses) required to
sustain certain convictions.
full proof. 1. Civil law. proof by two witnesses or by
public instrument. 2. Evidence that satisfies the minds
ofthe jury ofthe truth ofthe fact in dispute beyond a
reasonable doubt. [Cases: Evidence C= 584.]
literal proof. Civil law. Written evidence. Cf. testimo
nial prool
negative proof. (16c) Proof that establishes a fact by
showing that its opposite is not or cannot be true. Cf.
positive proof [Cases: Criminal LawC:::;)551; Evidence
(::::>586.]
positive proof. (l7c) Direct or affirmative proof. Cf.
negative proof [Cases: Criminal Law (::::>551; Evidence
(::::>586.]
preliminary proof. Insurance. The first proof offered
of a loss occurring under a policy, usu. sent in to the
underwriters with a notification of the claim. [Cases:
Insurance (;=.:::3164.]
presumptive proof. See conditional proof
proofbeyond a reasonable doubt. (1834) Proof that
precludes every reasonable hypothesis except that
which it tends to support. See REASONABLE DOUBT.
-Formerly, this standard required evidence to "estab
lish the truth of the fact to a reasonable and moral
certainty" and "proof to a moral certainty as distin
guished from an absolute certainty." Moral certainty
is no longer a synonym for proof beyond a reasonable
doubt. See Victor v. Nebraska, 511 U.S. 1,8, 12, 114
S.Ct. 1239, 1244, 1246 (1994). [Cases: Criminal Law
C='561.]
testimonial proof. Civil law. Proof by the evidence of
witnesses, rather than proof by written instrument.
Cf.literal proof
4. Scots law. A bench trial.
proof, burden of. See BURDEN OF PROOF.
proof brief. See BRIEF.
proof ofacknowledgment. (18c) An authorized officer's
certification -based on a third party's testimony
that the signature ofa person (who usu. does not appear
before the notary) is genuine and was freely made.
Also termed certificate ofproof See ACKNOWLEDGMENT
(5). [Cases: Acknowledgment (;::;)8-39.]
proof of claim. Bankruptcy. A creditor's written state
ment that is submitted to show the basis and amount of
the creditor's claim. PI. proofs ofclaim. [Cases: Bank
ruptcy (::::>2891-2904.]
informal proofofclaim. A proof of claim stating a
creditor's demand for payment and intent to hold the
debtor's bankruptcy estate liable, but that does not
comply with the Bankruptcy Code's form for proofs
of claim. - A late-filed proof of claim may be given
effect if the creditor had timely filed an informal proof
of claim. [Cases: Bankruptcy (::::>2902.]
proof of debt. The establishment by a creditor of a debt
in some prescribed manner (as by affidavit) as a first
step in recovering the debt from an estate or property;
PROOF OF CLAIM.
proof of loss. An insured's formal statement of loss
required by an insurance company before it will deter
mine whether the policy covers the loss. [Cases: Insur
ance (;:::c 3164.]
proof ofservice. (18c) 1. A document filed (as by a sheriff)
in court as evidence that process has been successfully
served on a party. -Also termed return ofservice;
return ofprocess. See SERVICE (1). [Cases: Federal Civil
Procedure (;:::c511-518; Process (;:::c 127-150.] 2. CER
TIFICATE OF SERVICE.
proof of will. See PROBATE (1).
pro omni alio onere (proh om-nI [also -nee] ay-lee-oh
on-dc-eel. [Law Latin "for all other burden"] Hist. A
portion of a charter clause restricting the vassal's duties
to those explicitly named in the charter.
pro opere et labore (proh op-il-ree et Id-bor-ee). [Latin]
For work and labor.
propaganda. Int'llaw. 1. The systematic dissemination
ofdoctrine, rumor, or selected information to promote
or injure a particular doctrine, view, or cause. 2. The
ideas or information so disseminated . The word pro
paganda originated as an abbreviated form of Congre
gatio de propaganda fide, a committee (of cardinals) for
propagating the (Christian) faith.
defamatory propaganda. Propaganda used to promote
dissatisfaction among a nation's citizens and under
mine government authority . Defamatory propa
ganda is common in wartime but is also used in
peacetime as a means ofincitement.
hostile propaganda. Propaganda employed by a nation
to manipulate the people ofanother nation to support
or oppose their government. -Also termed ideologi
cal aggression. See subversive propaganda.
"Ideological aggression ... is the spreading of ideas inten
tionally and deliberately so as to manipulate by symbols
controversial attitudes and positions. It is hostile pro
paganda indulged in by a state directly or vicariously to
incite and influence the people of another state so as to
maintain or alter the institutions and poliCies of that state,
The campaign of hostile propaganda may emanate from
within or without the territory of the victim state and can
be carried on by any means of communications." Ann Van
Wynen Thomas & A,J. Thomas,Jr., The Concept of Aggyes
sion in International Law 84 (l972),
subversive propaganda. Propaganda calculated to
incite a civil war or revolution . When the instiga
tor is another nation, it is termed hostile propaganda
or ideological aggression.
war-mongeringpropaganda. Propaganda calculated to
produce national support for a war and to encourage
the government to declare or join in a war regardless
ofany legal constraints.
pro parte (proh pahr-tee). [Latin) Hist. Partly; in part.
pro parte legitim us, pro parte illegitimus (proh pahr-tee
ld-jit-il-mds, proh pahr-tee il-ld-jit-d-mds). [Law
Latin] Hist. Partly legitimate, partly illegitimate .
In Roman and civil law, an illegitimate child could be later legitimated through the marriage of the child's
parents. But England did not fully recognize this legiti
mate status.
pro parte virili (proh pahr-tee vd-rI-lI). [Latin "for the
share per man"] Hist. In equal shares; for one's own
proportion.
pro purtibus liberandis (proh pahr-ti-bds lib-J-ran-dis).
[Latin "to free the portions"] Hist. A writ for the parti
tion oflands among coheirs.
propatruus (proh-pay-troo-ds or -pa-troo-dS). [Latin]
Roman & civil law. A great-grandfather's brother.
propatruus magnus (proh-pay-troo-ds [or -pa-troo-dS]
mag-nils). [Latin] Roman & civil law. A great-great
great-uncle on the father's side.
pro per., adv. & adj. See PRO PERSONA.
pro per., n. 1. See PRO SE. 2. See PROPRIA PERSONA.
proper care. See reasonable care under CARE.
proper evidence. See admissible evidence under
EVIDENCE.
proper feud. See FEUD (1).
proper improbation. See IMPROBATION.
proper independent advice. See INDEPENDENT
ADVICE.
proper law. Conflict oflaws. The substantive law that,
under the principles ofconflict oflaws, governs a trans
action. [Cases: Action (;:::c 17.]
proper lookout, n. (1842) The duty ofa vehicle operator
to exercise caution to avoid collisions with pedestrians
or other vehicles. [Cases: Automobiles (;:::c 150.J
proper means. Trade secrets. Any method ofdiscovering
trade secrets that does not violate property-protection
statutes or standards ofcommercial ethics . Proper
means include independent invention, reverse engi
neering, observing the product in public, and studying
published literature. RESTATEMENT OF TORTS 757
cmt. f (1977). [Cases: Antitrust and Trade Regulation
(;::::)414.]
"Trade secrets are protected ... in a manner akin to private
property, but only when they are disclosed or used through
improper means. Trade secrets do not enjoy the absolute
monopoly afforded patented processes. for example, and
trade secrets will lose their character as private property
when the owner divulges them or when they are discovered
through proper means .... Thus, it is the employment of
improper means to produce the trade secret, rather than
mere copy or use, which is the basis of liability" Chicago
Lock Co. v. Fanberg, 676 F.2d 400, 404 (9th Cif. 1982).
proper party. See PARTY (2).
pro persona (proh pdr-soh-nd), adv. & adj. [Latin] For
one's own person; on one's own behalf <a pro persona
brief>. Sometimes shortened to pro per. See PRO SE.
property. (14c) 1. The right to possess, use, and enjoy a
determinate thing (either a tract ofland or a chattel);
the right of ownership <the institution of private
property is protected from undue governmental inter
ference>. -Also termed bundle of rights. [Cases:
Constitutional Law Property G~1.] 2. Any
property 1336
external thing over which the rights of possession,
use, and enjoyment are exercised <the airport is city
property>. [Cases: Property <>1.]
"In its widest sense, property includes all a person's legal
rights, of whatever description. A man's property is all that
is his in law. This usage, however, is obsolete at the present
day, though it is common enough in the older books ....
In a second and narrower sense, property includes not all
a person's rights, but only his proprietary as opposed to
his personal rights. The former constitute his estate or
property, while the latter constitute his status or personal
condition. In this sense a man's land, chattels, shares, and
the debts due to him are his property; but not his life or
liberty or reputation.... In a third application, which is that
adopted [here], the term includes not even all proprietary
rights, but only those which are both proprietary and in
rem. The law of property is the law of proprietary rights
in rem, the law of proprietary rights in personam being
distinguished from it as the law of obligations. According
to this usage a freehold or leasehold estate in land, or a
patent or copyright, is property; but a debt or the benefit
of a contract is not. ... Finally, in the narrowest use of the
term, it includes nothing more than corporeal property
that is to say, the right of ownership in a material object,
or that object itself." John Salmond, Jurisprudence 423~24
(Glanville L. Williams ed., 10th ed. 1947).
abandoned property. (1841) Property that the owner
voluntarily surrenders, relinquishes, or disclaims. Cf.
lost property; mislaid property. [Cases: Abandoned
and Lost PropertyC=, 1.]
absolute property. Property that one has full and
complete title to and control over.
adventitious property. 1. Roman law. Property coming
to a son or daughter from anyone other than the
paterfamilias. -Also termed peculium adventitium.
2. Hist. Property coming to one from a stranger or
collateral relative.
appointive property. A property interest that is subject
to a power ofappointment. [Cases: Powers ~4.J
common property. (17c) 1. Real property that is held by
two or more persons with no right of survivorship.
Cf. joint property. [Cases: Common Lands <>LJ 2.
COMMON AREA.
community property. See COMMUNITY PROPERTY.
complete property. The entirety ofthe rights, privileges,
powers, and immunities that it is legally possible for a
person to have with regard to land or any other thing,
apart from those that all other members of society
have in the land or thing.
corporeal property. l. The right of ownership in
material things. 2. Property that can be perceived, as
opposed to incorporeal property; tangible property.
[Cases: Property <>1,2.)
distressed property. (1927) Property that must be sold
because ofmortgage foreclosure |
1,2.)
distressed property. (1927) Property that must be sold
because ofmortgage foreclosure or because it is part of
an insolvent estate. [Cases: BankruptcyC='3067.1.)
domestic-partnership property. Property that would
be marital property if the domestic partners were
married to each other. See DOMESTIC PARTNERSHIP;
DOMESTIC-PARTNERSHIP PERIOD. [Cases: Marriage dotal property. Civil law. Separate property that the
wife brings to the marriage to assist the husband
with the marriage expenses. Cf. extradotal property.
[Cases: Dower and Curtesy <>.> 10.]
exempt property. See EXEMPT PROPERTY.
extradotal property (ek-str;:,-doh-t<ll). Civil law. l.
That portion of a wife's property over which she has
complete control. 2. All of a wife's effects that have
not been settled on her as dowry; any property that a
wife owns apart from her dowry. _ In Louisiana, after
January 1, 1980, all property acquired by the wife that
is not community is neither dotal nor extradotal; it
is simply her separate property, as has always been
true of the husband. La. Civ. Code art. 2341. -Also
termed paraphernal property. Cf. dotal property.
general property. Property belonging to a general
owner. See general owner under OWNER.
income property. Property that produces income, such
as rental property.
incorporeal property. (18c) 1. An in rem proprietary
right that is not classified as corporeal property. _
Incorporeal property is traditionally broken down
into two classes: (1) jura in re aliena (encumbrances),
whether over material or immaterial things, examples
being leases, mortgages, and servitudes; and (2) jura
in re propria (full ownership over immaterial things),
examples being patents, copyrights, and trademarks.
2. A legal right in property having no physical exis
tence. -Patent rights, for example, are incorporeal
property. Also termed incorporeal chattel; incor
poreal thing.
intangible property. (1843) Property that lacks a
physical existence. -Examples include stock options
and business goodwill. C( tangible property. [Cases:
Property ~1, 2.]
intellectual property. See INTELLECTUAL PROPERTY.
joint property. Real or personal property held by two
or more persons with a right of survivorship. Cf.
common property. [Cases: Joint TenancyG=~)1.)
limited-market property. See special-purpose
property.
literary property. See LITERARY PROPERTY.
lost property. (1810) Property that the owner no longer
possesses because of accident, negligence, or care
lessness, and that cannot be located by an ordinary,
diligent search. Cf. abandoned property; mislaid
property. [Cases: Abandoned and Lost Property
10.]
marital property. (1855) Property that is acquired
during marriage and that is subject to distribution or
division at the time ofmarital dissolution. -Generallv,
it is property acquired after the date of the marriage
and before a spouse files for separation or divorce. The
phrase marital property is used in equitable-distribu
tion states and is roughly equivalent to community
property. -Also termed marital estate. See COMMU
1337 property
NITY PROPERTY; EQUITABLE DISTRIBUTION. [Cases:
Divorce (::=248; Husband and Wife C----::>6-15(6).]
maternal property. Property that comes from the
mother of a party or other ascendants ofthe maternal
stock.
mislaid property. (1915) Property that has been vol
untarily relinquished by the owner with an intent to
recover it later -but that cannot now be found. Cf.
abandoned property; lost property. [Cases: Abandoned
and Lost Property C= L 10.)
"A distinction is drawn between lost property and mislaid
property. An article is 'mislaid' if it is intentionally put in
a certain place for a temporary purpose and then inadver
tently left there when the owner goes away. A typical case
is the package left on the patron's table in a bank lobby by
a depositor who put the package there for a moment while
he wrote a check and then departed without remembering
to take it with him. There is always a 'clue' to the owner
ship of property which is obviously mislaid rather than
lost, because of the strong probability that the owner will
know where to return for his chattel when he realizes he
has gone away without it." Rollin M. Perkins & Ronald N.
Boyce, Criminal Law 31 0-11 (3d ed. 1982).
mixedproperty. (18c) Property with characteristics of
both real property and personal property -such as
heirlooms and fixtures. [Cases: Property C=4.]
movable property. See MOVABLE (1).
neutral property. See NEUTRAL PROPERTY.
nonancestral property. See nonancestral estate under
ESTATE (1).
nonexempt property. See NONEXEMPT PROPERTY.
paraphernal property. See extradotal property.
paternal property. Property that comes from the father
ofa party or other ascendants of the paternal stock.
personal property. (18c) 1. Any movable or intangible
thing that is subject to ownership and not classified
as real property. Also termed personalty; personal
estate; movable estate; (in plural) things personal. Cf.
real property. [Cases: PropertyC=4.]2. 7ax. Property
not used in a taxpayer's trade or business or held for
income production or collection. [Cases: Taxation
Cr-;2176.]
private property. (17c) Property -protected from
public appropriation over which the owner has
exclusive and absolute rights.
public property. (17c) State-or community-owned
property not restricted to anyone individual's use or
possession. [Cases: States (>88.)
qualified property. A temporary or special interest in
a thing (such as a right to possess it), subject to being
totally extinguished by the occurrence of a specified
contingency over which the qualified owner has no
control.
qualified-terminable-interest property. (1982)
Property that passes by a QTIP trust from a deceased
spouse to the surviving spouse and that (if the
executor so elects) qualifies for the marital deduc
tion provided that the surviving spouse is entitled to receive all income in payments made at least annually
for life and that no one has the power to appoint the
property to anyone other than the surviving spouse.
The purpose of the marital deduction is to permit
deferral of estate taxes until the death of the surviv
ing spouse. But this property is included in the sur
viving spouse's estate at death, where it is subject to
the federal estate tax. Abbr. QTIP. See QTIP trust
under TRUST. [Cases: Internal Revenue (::=4169(4).]
quasi-community property. See COMMUNITY PRO
PERTY.
real property. (18c) Land and anything growing on,
attached to, or erected on it, excluding anything that
may be severed without injury to the land. Real
property can be either corporeal (soil and buildings)
or incorporeal (easements). -Also termed realty;
real estate. Cf. personal property (1). [Cases: Property
(::='4.]
"Historically. the line between real and personal property
stems from the types of assets administered on death
respectively, in the king's and in the church's courts. The
king's courts, concerned with the preservation of the feudal
structure, dealt with fees Simple, fees tail and life estates,
Estates for years, gradually evolving out of contracts made
by feudally unimportant persons, clearly became interests
in land but never fully attained the historical dignity of
being 'real property.' The early economic unimportance
of money, goods and things other than land permitted the
church courts to take over the handling of all such assets
on the death of the owner. When the development of trade
and of capitalism caused assets of these types to assume
great, and sometimes paramount, importance we found
ourselves with the two important categories of property,
namely 'real' and 'personal' property, each with its set
of rules evolved from a different matrix. The pressure of
modern society has been strongly for assimilation and the
resultant elimination of this line, but this movement is far
from complete attainment of its goal." 1 Richard R. Powell,
Powell on Real Property 5.04, at 5-7 to 5-8 (Patrick j.
Rohan ed., rev, ed. 1998).
scheduled property. Insurance. Property itemized on a
list (usu. attached to an insurance policy) that records
property values, which provide the basis for insurance
payments in the event of a loss under an insurance
policy. [Cases: Insurance C=2169.~
separate property. See SEPARATE PROPERTY.
special-design property. See special-purpose property.
speCial property. Property that the holder has only a
qualified, temporary, or limited interest in, such as
(from a bailee's standpoint) bailed property.
special-purpose property. Property that has a unique
design or layout, incorporates special construction
materials, or has other features that limit the prop
erty's utility for purposes other than the one for which
it was built. Because of the property's specialized
nature, the market for the property may be quite
limited. Also termed limited-market property;
special-design property. [Cases: Eminent Domain
C:::> 134; Taxation G::::>2514.]
specialty property. See SPECIALTY (3).
tangible personal property. (1843) Corporeal personal
property of any kind; personal property that can be
seen, weighed, measured, felt, or touched, or is in any
other way perceptible to the senses, such as furniture,
cooking utensils, and books.
tangible property. (1802) Property that has physical
form and characteristics. Cf. intangible property.
[Cases: Property 2.]
terminable property. Property (such as a leasehold)
whose duration is not perpetual or indefinite but is
limited in time or is liable to termination upon the
occurrence ofsome specified event.
wasting property. (1853) 1. Property that is consumed
in its normal use, such as a wasting asset, a leasehold
interest, or a patent right. 2. A right to or an interest
in such property.
property, law of. See LAW OF PROPERTY.
property crimes. See CRIMES AGAINST PROPERTY.
property-damage insurance. See property insurance
under INSURANCE.
property dividend. See asset dividend under
DIVIDEND.
property division. See PROPERTY SETTLEMENT (1).
property insurance. See INSURANCE.
property of the debtor. Bankruptcy. Property that is
owned or (in some instances) possessed by the debtor,
including property that is exempted from the bank
ruptcyestate. 11 USCA 541(b). -Also termed debtor's
property. [Cases: Bankruptcy~2531-2559.]
property ofthe estate. Bankruptcy. The debtor's tangible
and intangible property interests (including both legal
and equitable interests) that fall under the bankruptcy
court's jurisdiction because they were owned or held by
the debtor when the bankruptcy petition was filed. 11
USCA 541. Also termed estate's property. [Cases:
Bankruptcy ~2491-2559.]
property ratione privilegii (ray-shee-oh-nee priv-i-Iee
jee-I). Hist. A common-law right, granted by a royal
franchise, to take wild animals on another's land.
This principle made its way into American law. See, e.g.,
Hanson v. Fergus Falls Nat'l Bank, 65 N.W.2d 857, 862
(Minn. 1954). Cf. PROPERTY RATIONE SOLI.
"Property Ratione privilegii is the right which, by a peculiar
franchise anciently granted by the Crown in virtue of its
prerogative, one man had of killing and taking animals
Ferae naturae on the land of another; and in like manner
the game, when killed or taken by virtue of the privilege,
became the absolute property of the owner of the fran
chise, just as in the other case it becomes the absolute
property of the owner of the soil." Blades v. Higgs, 11 Eng.
Rep. 1474, 1479 (H.L. 1865).
property ratione soli (ray-shee-oh-nee soh-II). The com
mon-law right to take wild animals found on one's own
land. Cf. PROPERTY RATIONE PRIVILEGII.
"The exclusive common law right of a landowner to take
game on his land, known as property ratione soli ... has
been recognized throughout the history of common law,
with one exception: Following the Norman Conquest the
King contended that he was lord paramount of the field,
possessed of the right to the universal soil and of the
exclusive right to take the game, but the irate landowners, vehemently objecting, quickly and decisively recaptured
their rights and re-established the common law." Alford v.
Finch, 155 So.2d 790, 792 (Fla. 1963).
property right. See RIGHT.
property settlement. 1. A judgment in a divorce case
determining the distribution of the marital property
between the divorcing parties. _ A property settle
ment includes a division of the marital debts as well
as assets. Also termed property division; division
ofproperty. [Cases: Husband and Wife (,'=248.] 2.
A contract that divides up the assets of divorcing
spouses and is incorporated into a divorce decree.
Also termed integrated property settlement; property
settlement agreement. Cf. DIVORCE AGREEMENT. [Cases:
Husband and Wife 3. MARITAL AGREEMENT.
property settlement agreement. See PROPERTY SETTLE
MENT (2).
property tax. See TAX.
property tort. See TORT. |
agreement. See PROPERTY SETTLE
MENT (2).
property tax. See TAX.
property tort. See TORT.
prophylactic (proh-fa-Iak-tik), adj. (16c) Formulated to
prevent something <a prophylactic rule>. -prophy
laxis (proh-f<3-lak-sis), prophylactic, n.
prophylactic cost. See COST (1).
propinquity (pra-ping-kw<3-tee). (15c) The state ofbeing
near; specif., kindred or parentage <degrees ofpropin
quity>.
propior sobrina (proh-pee-<3r sa-brI-na), n. [Latin]
Civil law. The daughter ofa great-uncle Of great-aunt,
paternal or maternal.
propior sobrino (proh-pee-af sa-brI-noh), n. [Latin] Civil
law. The son ofa great-uncle or great-aunt, paternal or
maternal.
propoue (pra-pohn), vb. To put forward for consider
ation or adjudication <propone a will for probate>.
proponent, n. (16c) 1. A person who puts forward a
legal instrument for consideration or acceptance; esp.,
one who offers a will for probate. Also termed pro
pounder. [Cases: Wills ~211, 219.] 2. A person who
puts forward a proposal; one who argues in favor of
something <a proponent ofgun control>. 3. Parliamen
tary law. A member who speaks in favor of a pending
motion. Cf. OPPONENT (3).
proportionality. lnt'llaw. The principle that the use of
force should be in proportion to the threat or grievance
provoking the use offorce.
proportionality review. (1976) Criminal law. An appel
late court's analysis ofwhether a death sentence is arbi
trary' capricious, or excessive by comparing the case in
which it was imposed with similar cases in which the
death penalty was approved or disapproved. [Cases:
Sentencing and Punishment ~1788(6).]
proportional quorum. See QUORUM.
proportional representation. 1. An electoral system
that allocates legislative seats to each political group
in proportion to its popular voting strength. 2. Seepro
portional voting under VOTING. -The term refers to
1339
two related but distinguishable concepts: proportional
outcome (having members ofa group elected in propor
tion to their numbers in the electorate) and propor
tional involvement (more precisely termed proportional
voting and denoting the electoral system also known as
single transferable voting).
proportional tax. See flat tax under TAX.
proportional voting. See VOTING.
proportionate-reduction clause. See LESSER-INTEREST
CLAUSE.
proposal. Something offered for consideration or accep
tance.
proposed agenda. See AGENDA.
proposed regulation. See REGULATION.
proposition. See main motion under MOTION (2).
propositus (proh-poz-;>-t;>s). [Law Latin] Civil law. 1.
A person from whom descent is to be traced. 2. The
person whose rights or obligations are in issue. Also
termed persona proposita. PI. propositi.
pro possessore (proh pos-;>-sor-ee). [Latin] As a pos
sessor; by title of a possessor; by virtue of possession
alone.
pro posse suo (proh pos-ee s[yJoo-oh). [Latin] To the
extent ofone's power or ability.
propound (prOl-pownd), vb. (16c) 1. To offer for consid
eration or discussion. 2. To make a proposal. 3. To put
forward (a will) as authentic.
propounder. An executor or administrator who offers a
will or other testamentary document for admission to
probate; PROPONENT.
prop. reg. abbr. See proposed regulation under REGULA
TION.
propria persona (proh-pree-Ol p;>r-soh-nOl), adj. & adv.
[Latin] In his own person; PRO SE. -Sometimes short
ened to pro per. Abbr. p.p. [Cases: Attorney and
Client (;.-::>62.]
proprietary (pr;>-prI-;>-ter-ee), adj. (ISc) L Ofor relating
to a proprietor <the licensee's proprietary rights>. 2.
Of, relating to, or holding as property <the software
deSigner sought to protect its proprietary data>.
proprietary act. See PROPRIETARY FUNCTION.
proprietary article. See ARTICLE.
proprietary capacity. See CAPACITY (1).
proprietary capital. See CAPITAL.
proprietary drug. See DRUG.
proprietary duty. See DUTY (2).
proprietary function. (1902) Torts. A municipality's
conduct that is performed for the profit or benefit of the
municipality, rather than for the benefit of the general
public . Generally, a municipality is not immune from
tort liability for proprietary acts. But the distinction
between proprietary acts and governmental functions
has been abrogated by statute in many states. Also pro privato commodo
termed proprietary act. Cf. GOVERNMENTAL FUNCTION.
[Cases: Municipal Corporations
proprietary government. See GOVERNMENT.
proprietary information. Information in which the
owner has a protectable interest. See TRADE SECRET.
[Cases: Contracts li8.J
proprietary interest. See INTEREST (2).
proprietary lease. See LEASE.
proprietary license. See LICENSE.
proprietary name. See NAME.
proprietary power. See power coupled with an interest
under POWER (3).
proprietary right. See RIGHT.
proprietary software. Software that cannot be used,
redistributed. or modified without permission . Pro
prietary software is usu. sold for profit, consists only of
machine-readable code, and carries a limited license
that restricts copying, modification, and redistribution.
A user may usu. make a backup copy for personal use;
but if the software is sold or given away, any backup
copies must be passed on to the new user or destroyed.
Cf. FREEWARE; SHAREWARE; SEMI-FREE SOFTWARE.
proprietary technology. Intellectual property. A body of
knowledge or know-how that is owned or controlled by
a person whose authorization is required before any
other party may use that know-how or knowledge for
commercial purposes. See TRADE SECRET.
proprietas (prd-prI-Ol-tas). [Latin] Hist. Ownership.
proprietas nuda (pr;>-prI-Ol-tas n[y]oo-d;. Naked
ownership; the mere title to property, without the
usufruct.
proprietas plena (prd-pn-a-tas pIee-nOll. Full owner
ship, including both the title and the usufruct.
proprietate probanda (prOl-pn-Ol-tay-tee prOl-ban-dd).
See DE PROPRIETATE PROBANDA.
proprietor, n. (16c) An owner, esp. one who runs a
business. See SOLE PROPRIETORSHIP. -proprietor
ship, n.
propriety. Hist. Privately owned possessions; property.
propriis manibus (proh-pree-is man-Ol-bOls). [LatinJ Hist.
By one's own hands.
proprio jure (proh-pree-oh joor-ee). [LatinJ Rist. By
one's own property right.
proprio nomine (proh-pree-oh nahm-Ol-nee). [Latin]
Hist. In one's own name.
proprio vigore (proh-pree-oh vi-gor-ee). [Latin] By its
own strength.
proprium negotium (proh-pree-;>m ni-goh-shee-Olm).
[LatinJ Hist. One's own business.
pro privato commodo (proh pn-vay-toh kom-Ol-doh).
[Law LatinJ Hist. For private convenience . The phrase
sometimes appeared in reference to a private road as
distingUished from a public highway. Cf. PRO BONO
PUBLICO.
1340 propter
propter (prop-t<Jr). [Latin] For; on account of.
propter affectum (prop-t;)f ;)-fek-t<Jm). See challenge
propter affectum under CHALLENGE (2).
propter commodum curiae (prop-tar kom-;)-d;)m
kyoor-ee-ee). [Law Latin] Hist. For the advantage of
the court.
propter curam et culturam (prop-t<Jr kyoor-am et
k;)l-t[y]oor-<Jm). [Latin] Rist. For care and cultiva
tion.
propter defectum (prop-t<Jr d;)-fek-t<Jm). See challenge
propter defectum under CHALLENGE (2).
propter defectum sanguinis (prop-t<Jr d<J-fek-t<Jm sang
gwi-nis). [Latin] On account offailure ofblood.
propter delectum personae (prop-t<Jf d<J-Iek-t<Jm par
soh-nee). [Law Latin] Hist. On account ofthe selection
of persons. _ For example, a person could not delegate
the principal duties ofan office when that person had
been specifically chosen to perform those duties.
propter delictum (prop-t<Jr d<J-lik-t<Jm). See challenge
propter delictum under CHALLENGE.
propter honoris respectum (prop-tar h<J-nor-is ri-spek
tdm). [Latin] On account of respect of honor or rank.
propter impotentiam (prop-tdf im-pd-ten-shee-dm).
[Latin] On account ofhelplessness. -This was formerly
given as a ground for gaining a property interest in a
wild animal, based on the animal's inability to escape
(as where, for example, a young bird could not fly
away).
propter ingratitudinem (prop-t;)r in-grat-<J-t[y]oo-dd
n<Jm). [Latin] Hist. On account of ingratitude. -In
some instances, a superior could revoke a gift based
on the vassal's ingratitude, and a slave-owner could
revoke the manumission ofa slave.
propter majorem securitatem (prop-tar ma-jor-;)m
si-kyoor-;)-tay-tdm). [Law Latin] Hist. For greater
security.
propter negligentiam haeredis jus suum non prose
quentis (prop-tar neg-li-jen-shee-am h<1-ree-dis jas
s[yloo-~m non prahs-<J-kwen-tis). [Law Latin] Hist. On
account of the negligence of the heir in not following
up the heir's right. Ifa vassal's heir failed, for a year
and a day, to enter the estate, then the heir forfeited the
right to the land.
propter privilegium (prop-t<Jr priv-<J-lee-jee-am). [Latin]
On the account of privilege. -This describes a way of
acquiring a property interest in a wild animal, based
on the claimant's exclusive right to hunt in a particular
park or preserve.
propter quodfeceruntper alium (prop-tar kwod fi-see
rant p<1r ay-Iee-am). [Law Latin] Hist. On account of
what they have done by another. -The phrase usu.
referred to an agent's actions.
propter rem ipsam non habitam (prop-tdr rem ip-sam
non hab-a-t<1m). [Law Latin] Hist. On account of not
having had possession of the thing itself. -The phrase
appeared in reference to damages suffered by a party who failed to receive a thing for which he had con
tracted.
pro quantitate haereditatis et temporis (proh kwon-ti
tay-tee h<J-red-i-tay-tis et tem-p<J-ris). [Law Latin] Hist.
According to the extent of the succession.
pro quer. abbr. PRO QUERENTE.
pro querente (proh kW<1-ren-tee). [Latin] For the plain
tiff. -In old law reports, the plaintiff's advocate is
designated pro querente and the opposing advocate
contra. -Abbr. pro quer. Cf. PRO DEFENDENTE.
pro rata (proh ray-t<J or rah-t<J or ra-ta), adv. (16c) Pro
portionately; according to an exact rate, measure, or
interest <the liability will be assessed pro rata between
the defendants>. See RATABLE. pro rata, adj.
pro rata clause. An insurance-policy provision -usu.
contained in the "other insurance" section of the
policy -that limits the insurer's liability to payment of
the portion ofthe loss that the face amount ofthe policy
bears to the total insurance available on the risk.
Also termed pro rata distribution clause. Cf. ESCAPE
CLAUSE; EXCESS CLAUSE. [Cases: Insurance
pro rata itineris (proh ray-td I-tin-~-ris). [Latin] Scots
law. For the proportion of the journey.
"Where a ship, chartered to convey a cargo to a certain
port ... is prevented from completing the voyage ...
the master of the ship may transship the goods, and thus
conveying them to their destination, earn his full freight.
But if, when the ship has been prevented from proceeding
on her voyage, the freighter himself transships the cargo,
the master is entitled to freight pro rata itineris, for the
proportion of the voyage which he has accomplished." John
Trayner, Trayner's Latin Maxims 486 (4th ed. 1894).
prorate (proh-rayt or proh-rayt), vb. (1858) To divide,
assess, or distribute proportionately <prorate taxes
between the buyer and the seller>. proration, n.
pro re nata (proh ree nay |
ate taxes
between the buyer and the seller>. proration, n.
pro re nata (proh ree nay-t~). [Latin "in the light of what
has arisen"] Hist. By reason of emergency; arising from
exigent circumstances. -The phrase appeared, for
example, in reference to a meeting called to address
an emergency.
"So far as may be, the state leaves the rule of right to
be declared and constituted by the agreement of those
concerned with it. So far as possible, it contents itself with
executing the rules which its subjects have made for them
selves. And in so doing it acts wisely. For, in the first place,
the administration of justice is enabled In this manner to
escape in a degree not otherwise attainable the disadvan
tages inherent in the recognition of rigid principles of law.
Such principles we must have: but jf they are established
pro re nata by the parties themselves, they will possess a
measure of adaptability to individual cases which is unat
tainable by the more general legislation of the state itself."
John Salmond, Jurisprudence 352 (Glanville L. Williams ed.,
10th ed. 1947).
prorogated jurisdiction. See JURISDICTION.
prorogatio de loco in locum (proh-roh-gay-shee-oh dee
loh-koh in loh-k<Jm). [Law Latin) Hist. Prorogation (of
jurisdiction) from one place to another.
prorogatio de tempore in tempus (proh-roh-gay-shee-oh
dee tem-pa-ree in tem-p<Js). [Law Latin] Hist. Proroga
tion (esp. ofjurisdiction) from one time to another.
prorogation (proh-ra-gay-shan). (14c) 1. The act of
putting off to another day; esp., the discontinuance of
a legislative session until its next term. [Cases: States
<;~'32.] 2. Civil law. The extension ofa court's or judge's
jurisdiction by consent of the parties to a case that it
would otherwise be incompetent to hear. -proroga
tive, adj.
tacit prorogation. Civil law. Consent to jurisdiction
that arises when a party does not request recusal
despite awareness that the judge is not qualified to
try the case. Cf. prorogated jurisdiction under JURIS
DICTION.
prorogue (proh-rohg or pra-), vb. (15c) 1. To postpone
or defer. 2. To discontinue a session of (a legislative
assembly, esp. the British Parliament) without dissolu
tion. 3. To suspend or discontinue a legislative session.
[Cases: States (::::>32.]
proscribe, vb. (15c) 1. To outlaw or prohibit; to forbid.
2. Roman & civil law. To post or publish the name of
(a person) as condemned to death and forfeiture of
property.
proscription, n. (14c) 1. The act of prohibiting; the state
ofbeing prohibited. 2. A prohibition or restriction. Cf.
PRESCRIPTION (1). proscriptive, adj.
pro se (proh say or see), adv. & adj. [Latin] (1817) For
oneself; on one's own behalf; without a lawyer <the
defendant proceeded pro se> <a pro se defendant>.
Also termed pro persona; in propria persona; propria
persona; pro per. See PROPRIA PERSONA. [Cases:
Attorney and Client (::::>62; Criminal Law (::::> 1750.]
pro se, n. (1857) One who represents oneself in a court
proceeding without the assistance of a lawyer <the
third case on the court's docket involving a pro se>.
Also termed pro per; self-represented litigant; (rarely)
pro se-er. [Cases: Attorney and Client (::::>62; Criminal
Law (::::> 1750]
prosecutable, adj. (Of a crime or person) subject to pros
ecution; capable ofbeing prosecuted.
prosecute, vb. (15c) 1. To commence and carry out a
legal action <because the plaintiff failed to prosecute
its contractual claims, the court dismissed the suit>.
2. To institute and pursue a criminal action against (a
person) <the notorious felon has been prosecuted in
seven states>. 3. To engage in; carryon <the company
prosecuted its business for 12 years before going
bankrupt>. prosecutory, a~j.
prosecuting attorney. See DISTRICT ATTORNEY.
prosecuting witness. See WITNESS.
prosecution. (16c) 1. The commencement and carrying
out ofany action or scheme <the prosecution ofa long,
bloody war>. 2. A criminal proceeding in which an
accused person is tried <the conspiracy trial involved
the prosecution of seven defendants>. -Also termed
criminal prosecution.
deferred prosecution. See deferred judgment under
JUDGMENT. private prosecution. Hist. A criminal prosecution ini
tiated by a privately employed attorney or by a lay
person or private organization, rather than a district
attorney or other government-employed prosecutor.
Until the 19th century, victims often had the burden
of directly prosecuting criminals who had harmed
them. With the rise of public-prosecution services,
the need for private prosecutions declined. Though
uncommon, they are still sometimes permitted in
England. [Cases: Criminal LawC=,1704.j
selective prosecution. See SELECTIVE PROSECUTION.
sham prosecution. (1903) A prosecution that seeks to
circumvent a defendant's double-jeopardy protection
by appearing to be prosecuted by another sovereignty,
when it is in fact controlled by the sovereignty that
already prosecuted the defendant for the same crime.
A sham prosecution is, in essence, a misuse of the
dual-sovereignty doctrine. Under that doctrine, a
defendant's protection against double jeopardy does
not provide protection against a prosecution by a
different sovereignty. For example, if the defendant
was first tried in federal court and acquitted, that fact
would not forbid the state authorities from prosecut
ing the defendant in state court. But a sham prosecu
tion for example, a later state-court prosecution
that is completely dominated or manipulated by the
federal authorities that already prosecuted the defen
dant' so that the state-court proceeding is merely a
tool ofthe federal authorities will not withstand a
double-jeopardy challenge. See DUAL-SOVEREIGNTY
DOCTRINE. [Cases: Double JeopardYC=J 53.)
vindictive prosecution. (1834) A prosecution in which
a person is singled out under a law or regulation
because the person has exercised a constitutionally
protected right. Cf. SELECTIVE ENFORCEMENT. [Cases:
Criminal Law ~'-;)37.15.)
3. The government attorneys who initiate and maintain
a criminal action against an accused defendant <the
prosecution rests>. 4. Patents. The process of applying
for a patent through the U.S. Patent and Trademark
Office and negotiating with the patent examiner.
Also termed patent-prosecution process. [Cases: Patents
~-'104.]
prosecution history. See FILE WRAPPER.
prosecution-history estoppel. See ESTOPPEL.
prosecution laches. See LACHES.
prosecution-laches doctrine. See CONTINGATION-APPLI
CATION LACHES DOCTRINE.
prosecutor, n. (16c) 1. A legal officer who represents the
state or federal government in criminal proceedings.
See DISTRICT ATTORNEY; UNITED STATES ATTORNEY;
ATTORNEY GENERAL. -Also termed public prosecutor;
state's attorney; public commissioner.
public prosecutor. 1. See PROSECUTOR (1). 2. See DIS
TRICT ATTORNEY.
special prosecutor. (1859) A lawyer appointed to inves
tigate and, if justified, seek indictments in a particular
case. See independent counsel under COUNSEL.
2. A private person who institutes and carries on a legal
action, esp. a criminal action. -Also termed (in sense
2) private prosecutor. -prosecutorial, adj.
prosecutorial discretion. See DISCRETION (4).
prosecutorial immunity. See IMMUNITY.
prosecutorial misconduct. (1963) Criminal law. A pros
ecutor's improper or illegal act (or failure to act), esp.
involVing an attempt to avoid required disclosure or
to persuade the jury to wrongly convict a defendant
or assess an unjustified punishment . If prosecuto
rial misconduct results in a mistrial, a later prosecu
tion may be barred under the Double Jeopardy Clause.
[Cases: Criminal Law C==> 1980-1986.]
prosecutorial vindictiveness. Criminal law. The act or
an instance of intentionally charging a more serious
crime or seeking a more severe penalty in retaliation for
a defendant's lawful exercise ofa constitutional right.
[Cases: Criminal LawC==>37.l5; Sentencing and Pun
ishment
prosecutrix (pros-a-kyoo-triks). Archaic. A female pros
ecutor.
prosequi (prahs-a-kwI), vb. [Latin) To follow up or
pursue; to sue or prosecute. See NOLLE PROSEQUI.
prosequitur (pra-sek-wa-t<lr or proh-). [Latin) He follows
or pursues; he prosecutes.
pro servitio burgali (proh sar-vish-ee-oh b<lr-gay-h).
[Law Latin] Hist. For burghal service. See BURGAGE
TENURE (2).
prosocer (proh-sd-sar). [Latin) Civil law. A father-in-law's
father; a spouse's grandfather.
prosocerus (prd-sos-d-ras). [Latin] Civil law. A wife's or
husband's grandmother.
pro socio (proh soh-shee-oh). [Latin) As a partner . This
was the name ofan action on behalfofa partner.
pro solido (proh sol-d-doh). [Latin] For the whole;
without division.
prospectant evidence. See EVIDENCE.
prospective, adj. (18c) 1. Effective or operative in the
future <prospective application of the new statute>.
Cf. RETROACTIVE. 2. Anticipated or expected; likely to
come about <prospective clients>.
prospective damages. See DAMAGES.
prospective heir. See HEIR.
prospective law. See prospective statute under
STATUTE.
prospective nuisauce. See anticipatory nuisance under
NUISANCE.
prospective statute. See STATUTE.
prospective \\-"<liver. See WAIVER (1).
prospect theory. See INCENTIVE-TO-COMMERCIALIZE
THEORY. prospectus (pr<l-spek-t<ls). A printed document that
describes the main features ofan enterprise (esp. a cor
poration's business) and that is distributed to prospec
tive buyers or investors; esp., a written description ofa
securities offering . Under SEC regulations, a publicly
traded corporation must provide a prospectus before
offering to sell stock in the corporation. PI. prospec
tuses. See REGISTRATION STATEMENT. Cf. TOMBSTONE.
[Cases: Securities Regulation
newspaper prospectus. A summary prospectus that
the SEC allows to be disseminated through advertise
ments in newspapers, magazines, or other periodicals
sent through the mails as second-class matter (though
not distributed by the advertiser), when the securities
involved are issued by a foreign national government
with which the United States maintains diplomatic
relations.
preliminary prospectus. A prospectus for a stock issue
that has been filed but not yet approved by the SEC.
The SEC requires such a prospectus to contain a
notice -printed in distinctive red lettering -that
the document is not complete or final. Ihat notice,
which is usu. stamped or printed in red ink, typi
cally reads as follows: "The information here given
is subject to completion or amendment. A registra
tion statement relating to these securities has been
filed with the Securities and Exchange Commission.
These securities cannot be sold and offers to buy
cannot be accepted -until the registration statement
becomes effective. This prospectus does not consti
tute an offer to buy. And these securities cannot be
sold in any state where the offer, solicitation, or sale
would be unlawful before registration or qualification
under the securities laws ofthat state." Also termed
red-herring prospectus; red herring. [Cases: Securities
Regulation C==>25.51.]
prostitute, n. (16c) A person who engages in sexual acts
in exchange for money or anything else ofvalue.
child prostitute. A child who is offered or used for sex
acts in exchange for money . Some people object to
this phrase because the term "prostitute" suggests a
degree ofvoluntariness or choice on the child's part,
which is often not true. An alternative without those
connotations is prostituted child. [Cases: Infants
13.]
prostituted child. See child prostitute under PROSTI
TUTE.
prostitution, n. (16c) 1. The act or practice ofengaging
in sexual activity for money or its equivalent; commer
cialized sex. [Cases: Prostitution C==> L)
"Prostitution is not itself a crime in England or Scotland,
although certain activities of prostitutes and those who
profit from prostitution are prohibited, such as soliciting in
a public place, procuring, letting premises for the purpose
of prostitution and so forth. On the other hand. prostitu
tion was, at least at one time, prohibited in all American
jurisdictions." Rollin M. Perkins & Ronald N. Boyce, Criminal
Law 470 (3d ed. 19 |
Rollin M. Perkins & Ronald N. Boyce, Criminal
Law 470 (3d ed. 1982).
1343
child prostitution. The act or practice of offering or
using a minor for sex acts in exchange for money. See
child prostitute under PROSTITUTE.
2. The act ofdebasing. - prostitute, vb. -prostitute,
n.
pro tanto (proh tan-toh), adv. & adj. [Latin) (l7c) To that
extent; for so much; as far as it goes <the debt is pro
tanto discharged> <a pro tanto payment>.
protected activity. (1918) Conduct that is permitted or
encouraged by a statute or constitutional provision, and
for which the actor may not legally be retaliated against.
For example, Title VII of the Civil Rights Act prohib
its an employer from retaliating against an employee
who opposes a discriminatory employment practice
or helps in investigating an allegedly discriminatory
employment practice. An employee who is retaliated
against for engaging in one of those activities has a
claim against the employer. 42 USCA 2000e-3(a).
[Cases: Civil Rights (;::::c 1244; Labor and Employment
Cr'-::772.)
protected class. See CLASS (1).
protected person. See PERSON (1).
protecting power. lnt'llaw. A country responsible for
protecting another country's citizens and interests
during a conflict or a suspension of diplomatic ties
between the citizens' country and a third party.
After a protecting power is accepted by both belliger
ents, it works to ensure the proper treatment ofnation
als who are in a belligerent's territory, esp. prisoners of
war. Ifthe parties cannot agree on a protecting power,
the International Committee of the Red Cross is often
appointed to this position.
protection, n. (14c) 1. The act of protecting. 2. PROTEC
TIONISM. 3. COVERAGE (1). 4. A document given by a
notary public to sailors and other persons who travel
abroad, certifying that the bearer is a U.S. citizen.
protect, vb.
Protection and Advocacy for Individuals with Mental
Illness Act. A 1986 federal statute that provides
funding for the state-level establishment of indepen
dent organizations dedicated to monitoring and pro
tecting the rights of mentally ill citizens. 42 U.S.c.
10801-10851. Formerly titled the Protection and
Advocacy for Mentally III Individuals Act, this statute
was renamed in the Children's Health Act of 2000 (114
Stat. 1101).
Protection and Advocacy for Mentally III Individuals
Act. See PROTECTION A:SD ADVOCACY FOR INDIVIDU
ALS WITH MENTAL ILLNESS ACT.
protection covenant. Oil & gas. The implied promise
in an oil-and-gas lease that the lessee will protect the
property against the loss of oil and gas by drainage from
the prodUcing reservoir by drilling one or more offset
ting wells . The covenant applies only ifa reasonably
prudent operator would drill the additional wells.
Also termed covenant to protect against drainage. See protective order
REASONABLY PRUDENT-OPERATOR STANDARD. [Cases:
Mines and Minerals (;::::c78.1(1l).j
protectionism. (1844) The protection of domestic busi
nesses and industries against foreign competition by
imposing high tariffs and restricting imports. -pro
tectionist, adj.
protection money. (lSc) 1. A bribe paid to an officer as
an inducement not to interfere with the criminal activi
ties of the briber . Examples include payments to an
officer in exchange for the officer's releasing an arrestee,
removing records of traffic violations from a court's
files, and refraining from making a proper arrest.
[Cases: Bribery 1(1).] 2. Money extorted from a
business owner by one who promises to "protect" the
business premises, with the implied threat that if the
owner does not pay, the person requesting the payment
will harm the owner or damage the premises.
protection order. See RESTRAINING ORDER (1).
protective appeal. See APPEAL.
protective committee. A group of security holders or
preferred stockholders appointed to protect the inter
ests of their group when the corporation is liqUidated
or reorganized.
protective custody. See CUSTODY (1).
protective order. (1884) 1. A court order prohibiting or
restricting a party from engaging in conduct (esp. a
legal procedure such as discovery) that unduly annoys
or burdens the opposing party or a third-party witness.
[Cases: Federal Civil Procedure 1271.5; Pretrial
Procedure (;::::c41.j 2. RESTRAINI:sG ORDER (1).
blanket protective order. A protective order that covers
a broad subject or class. -Often shortened to blanket
order. Also termed umbrella protective order.
emergency protective order. A temporary protective
order granted on an expedited basis, usu. after an
ex parte hearing (without notice to the other side),
most commonly to provide injunctive relief from
an abuser in a domestic-violence case; esp., a short
term restraining order that is issued at the request of
a law-enforcement officer in response to a domestic
violence complaint from a victim who is in immediate
danger. A victim of domestic violence can obtain an
EPa only through a law-enforcement officer. There is
no notice requirement, but the abuser must be served
with the order. The duration of an EPa varies from
three to seven days, depending on state law. -Abbr.
EPa. Cf. TEMPORARY RESTRAINING ORDER. [Cases:
Breach of the Peace
permanent protective order. A protective order of
indefinite duration granted after a hearing with
notice to both sides; esp., a court order that prohibits
an abuser from contacting or approaching the pro
tected person for a long period, usu. years. Despite the
name, permanent orders often have expiration dates
set by state law. An order may also require the abuser
to perform certain acts such as attending counsel
ing or providing financial support for the protected
1344 protective principle
person, Abbr, PPO, [Cases: Breach of the Peace
(;=20.]
protective prindple. Int'l law. The doctrine that a sov
ereign state has the power to assert jurisdiction over a
person whose conduct outside its boundaries threatens
its security or could interfere with the operation of its
government functions. [Cases: International Law
7,]
protective search. See SEARCH.
protective sweep. (1973) A police officer's quick and
limited search conducted after the officer has
lawfully entered the premises -based on a reason
able belief that such a search is necessary to protect the
officer or others from harm.
protective tariff. See TARIFF (2).
protective trust. See TRUST.
protector. 1. An unrelated, disinterested overseer of a
trust who possesses broader authority than a trustee .
Protectors are usu. appOinted to manage offshore trusts,
but the concept is slowly being applied to domestic
trusts, Protectors often possess broad powers to act
for the benefit of the trust, as by removing trustees
and clarifying or modifying trust terms to promote
the settlor's objectives. For these reasons, a protector
is generally not a trustee or beneficiary of the trust.
Cf. TRUSTEE. 2. A person who, haVing been named in
an instrument creating a fee tail, has the responsibil
ity of exercising discretion over whether the tenant in
tail may bar the entail. -Also termed protector ofthe
settlement.
'The only additional restriction imposed upon the alien
ation of an estate tail is that the consent of the person
who is called the Protector of the settlement is necessary
to its being effectually barred. Alienation by tenant in tail
without this consent binds his own issue, but not remain
dermen or reversioners, and creates what is called a 'base
fee.' The Protector of the settlement is usually the tenant
for life in possession; but the settlor of the lands may
appoint in his place any number of persons not exceeding
three to be together Protector during the continuance of
the estates preceding the estate tail." Kenelm E. Digby, An
Introduction to the History ofthe Law ofReal Property 255
(5th ed. 1897).
protectorate (pr<'l-tek-t<'l-r<'1t). 1. Int'llaw. The relation
ship between a weaker nation and a stronger one when
the weaker nation has transferred the management of
its more important international affairs to the stronger
nation. 2. Int'l law. The weaker or dependent nation
within such a relationship. 3. (usu. cap.) The period in
British history from 1653 to 1659 -during which
Oliver Cromwell and Richard Cromwell governed. 4.
The British government in the period from 1653 to
1659.
protege. 1. A person protected by or under the care or
training of another person or an entity, esp. one who is
established or influential. 2. International law. A nation
that is under the protection ofanother nation. 3. Inter
national law. A person who is a citizen of a protected
nation or otherwise recognized by treaty as a protected
person. pro tem. abbr. PRO TEMPORE.
pro tempore (proh tem-p<'1-ree), adv. & adj. [Latin] (ISc)
For the time being; appointed to occupy a position
temporarily <a judge pro tempore>. -Abbr. pro tem.
[Cases: Judges ~15.J
protest, n. (ISc) 1. A formal statement or action express
ing dissent or disapproval. Under some circum
stances, a protest is lodged to preserve a claim or right.
2. A notary public's written statement that, upon pre
sentment, a negotiable instrument was neither paid nor
accepted. Also termed initial protest; noting protest.
Cf. NOTICE OF DISHONOR. [Cases: Bills and Notes
408.J
"Noting or initial protest is a memorandum made on [a
dishonoreq] instrument, with the notary's initials, date, and
the amount of noting charges, together with a statement
of the cause of dishonor, such as 'no effects,' 'not advice,'
or 'no account.' This is done to charge the memory of the
notary, and should be done on the day of dishonor." Fred
erick M. Hinch, john's American Notary and Commission
ofDeeds Manual 442, at 281 (3d ed. 1922).
3. A formal statement, usu. in writing, disputing a
debt's legality or validity but agreeing to make payment
while reserving the right to recover the amount at a
later time . The disputed debt is described as under
protest. [Cases: Payment 4. Tax. A taxpayer's
statement to the collecting officer that payment is being
made unWillingly because the taxpayer believes the
tax to be invalid. 5. Int'llaw. A formal communica
tion from one subject of international law to another
objecting to conduct or a claim by the latter as violating
international law. 6. Patents. A proceeding in the U.S.
Patent and Trademark Office to determine patentabil
ity ofan invention after a third party has challenged it
in a petition . Unlike in a public use proceeding, the
protestant has no right to participate in the proceeding
beyond filing the petition and supporting documents.
37 CFR 1.291. Cf. PUBLIC-USE PROCEEDING. [Cases:
Patents ~104.] protest, vb.
protestando (proh-t<:l-stan-doh). [Law Latin] Protesting.
'Ibis emphatic word was used in a protestation to
allege or deny something in an oblique manner.
protestant. Patents. A person who files a protest petition
with the U.S. Patent and Trademark Office challenging
the patentability ofan invention. See PROTEST. [Cases:
Patents ~104.]
protestatio contraria facto (proh-tes-tay-shee-oh bn
trair-ee-<:l fak-toh). [Law Latin] Hist. Protestation
inconsistent with one's conduct while protesting.
protestation (prot-<:l-stay-sh<:ln). (14c) 1. Common-law
pleading. A declaration by which a party makes an
oblique allegation or denial ofsome fact, claiming that
it does or does not exist or is or is not legally sufficient,
while not directly affirming or denying the fact. [Cases:
Pleading l28.]
'The practice of protestation of facts not denied arose
where the pleader, wishing to avail himself of the right
to contest in a future action some traversable fact in the
pending action, passes it by without traverse, but at the
same time makes a declaration collateral or incidental to
1345 provisional exit
his main pleading, importing that the fact so passed over
is untrue. The necessity for this arose from the rule that
pleadings must not be double, and that every pleading
is taken to admit such matters as it does not traverse.
Such being its only purpose, it is wholly without effect in
the action in which it occurs ...." Benjamin J. Shipman,
Handbook of Common-Law Pleading 207, at 358 (Henry
Winthrop Ballantine ed., 3d ed. 1923).
2. Scots law. A defendant's act in a civil case to compel
a pursuer (plaintiff) who has failed to take the neces
sary procedural steps either to proceed or to allow the
action to fall.
protest certificate. A notarial certificate declaring (1)
that a holder in due course has recruited the notary
public to present a preViously refused or dishonored
negotiable instrument, (2) that the notary has presented
the instrument to the person responsible for payment
or acceptance (the drawee), (3) that the instrument was
presented at a given time and place, and (4) that the
drawee refused or dishonored the instrument. In
former practice, the notary would issue a protest cer
tificate, which could then be presented to the drawe |
ored the instrument. In
former practice, the notary would issue a protest cer
tificate, which could then be presented to the drawee
and any other liable parties as notice that the holder
could seek damages for the dishonored negotiable
instrument. Also termed notarial protest certificate.
See NOTICE OF DlSHONOR. [Cases; Bills and Notes
408.]
protest fee. A fee charged by a bank or other financial
institution when an item (such as a check) is presented
but cannot be collected.
prothonotary (pra-thon-a-ter-ee or proh-tha-noh-ta
reel, n. A chief clerk in certain courts oflaw. -Also
termed protonotary. [Cases; Clerks ofCourts L]
prothonotarial, adj.
protocol. 1. A summary of a document or treaty. 2. A
treaty amending and supplementing another treaty.
[Cases: Treaties (;::::::'8.] 3. The formal record of the pro
ceedings of a conference or congress. -Also termed
prod~s-verbal. 4. The minutes of a meeting, usu. ini
tialed by all participants after confirming accuracy.
5. The rules ofdiplomatic etiquette; the practices that
nations observe in the course oftheir contacts with
one another.
protonotary. See PROTHONOTARY.
pro tribunali (proh trib-ya-nay-h). [Latin] Hist. Before
the court.
protntor (proh-t[y]oo-tar). Civil law. A person who,
though not legally appointed as a guardian, adminis
ters another's affairs.
prout de lege (proh-at dee [or di]lee-jee). [Law Latin]
According to law . Proof prout de lege is proof by
any legal means, as distinct from proof limited to
writing. -Also termed prout de jure (proh-at dee [or
di] joor-ee).
"A proof prout de jure is a proof by all the legal means
of probation -viz.: writ, witnesses, and oath of party;
although, in practice, the phrase is usually applied to a
proof of facts and circumstances by parole, in contradis
tinction to a proof limited to writ or oath of party." William Bell, Bell's Dictionary and Digest ofthe Law ofScotland 871
(George Watson ed., 7th ed. 1890).
prout patet per recordum (proh-at pay-tet par ri-kor
dam). [Latin] As appears by the record.
provable, adj. (ISc) Capable ofbeing proved.
prove, vb. (13c) To establish or make certain; to estab
lish the truth of (a fact or hypothesis) by satisfactory
evidence.
prover, n. Hist. A person charged with a felony who
attempts to obtain a pardon by confessing and naming
accomplices.
pro veritate accipitur (proh ver-i-tay-tee ak-sip-a-tar).
[Latinl Hist. Is held or received as the truth.
prove up, vb. (1832) To present or complete the proof of
(something) <deciding not to put a doctor on the stand,
the plaintiff attempted to prove up his damages with
medical records only>.
prove-up, n. The establishment of a prima facie claim.
A prove-up is necessary when a factual assertion is
unopposed because even without opposition, the claim
must be supported by evidence.
provided, conj. (ISc) 1. On the condition or understand
ing (that) <we will sign the contract provided that you
agree to the follOWing conditions> . For the Latin
antecedent ofthis term, see DUMMODO. 2. Except (that)
<all permittees must be at least 18 years ofage, prOVided
that those with a bona fide hardship must be at least 15
years of age>. 3. And <a railway car must be operated
by a full crew ifit extends for more than 15 continuous
miles, provided that a full crew must consist ofat least
six railway workers>.
provident plea. See PLEA (1).
province, n. 1. An administrative district into which a
country has been divided. 2. A sphere of activity of a
profeSSion such as medicine or law.
provincia lis (pra-vin-shee-ay-lis). [Latin] One who has
a domicile in a province.
provincial synod. See SYNOD.
proving the tenor. Scots law. An action to establish the
terms ofa deed or will that has been lost or destroyed.
provision. (ISc) 1. A clause in a statute, contract, or other
legal instrument. 2. A stipulation made beforehand.
See PROVISO.
provisional, adj. (16c) 1. Temporary <a provisional
injunction>. 2. Conditional <a provisional govern
ment>.
provisional alimony. See temporary alimony under
ALIMONY.
provisional application. See PATENT APPLICATION.
provisional attachment. See ATTACHMENT (1).
provisional court. See COURT.
provisional director. See DlRECTOR.
provisional exit. Criminal procedure. A prisoner's tem
porary release from prison for a court appearance,
1346 provisional government
hospital treatment, work detail, or other purpose
requiring a release with the expectation of return,
provisional government. See GOVERNMENT,
provisional injunction. See preliminary injunction
under INJUNCTION.
provisional partition. See PARTITION,
provisional patent application. See provisional applica
tion under PATENT APPLICATION,
provisional remedy. See REMEDY,
provisional right. Patents. The right to obtain a reason
able royalty for use of a patented invention or process
by an infringer with actual notice during the period
between the publication ofa patent application and the
time a patent is issued . The right is only available if
the invention as claimed in the issued patent is sub
stantially identical to the invention as claimed in the
published application. 35 USCA 154.
provisional seizure. See ATTACHMENT (1).
provisione hominis (pr<l-vizh-ee-oh-nee hom-<l-nis).
[Law Latin] Hist. By an individual's appointment.
The phrase referred to heirs that a testator appoints, as
distingUished from those who succeed by law.
provisione legis (prd-vizh-ee-oh-nee lee-jis). [Law Latin]
Hist. By provision oflaw.
"Heirs who succeed according to the rules of law regulat
ing succession, without the consent or appointment of
their ancestor, are said to succeed provisione legis, and
are known as heirs-at-Iaw." John Trayner, Trayner's Latin
Maxims 494 (4th ed. 1894).
provisione tenus (prd-vizh-ee-oh-nee ten-ds). [Law
Latin] Hist. To the extent of the provision.
provision of a fine. Hist. A proclamation made after
the conveying ofland by fine, read aloud in court 16
times -four times in the term when the fine was made,
and four times in the three succeeding terms.
Provisions of Oxford. Hist. Duri ng the reign of Henry
III, a constitution created by the Mad Parliament and
forming the King's advisory council that met with a
group ofbarons several times a year to handle the coun
try's affairs and resolve grievances, esp. those result
ing from the King's avoidance ofhis obligations under
Magna Carta . The Provisions were effective until the
baron uprising in 1263 under Simon de Montfort.
proviso (pr;l-vI-zoh). (ISc) 1. A limitation, condition, or
stipulation upon whose compliance a legal or formal
document's validity or application may depend. 2.
In drafting, a provision that begins with the words
provided that and supplies a condition, exception, or
addition.
provisor. 1. Hist. A provider of care or sustenance. 2.
Eccles. law. A person nominated by the pope to be the
next incumbent of a benefice that is vacant or about to
become vacant.
provocation, n. (ISc) 1. The act ofinciting another to do
something, esp. to commit a crime. 2. Something (such
as words or actions) that affects a person's reason and
self-control, esp. causing the person to commit a crime impulsively. [Cases: Sentencing and Punishment (;::J
1675.] -provoke, vb. provocative, adj.
adequate provocation. (1842) Something that would
cause a reasonable person to act without self-control
and lose any premeditated state of mind . The usual
form of adequate provocation is the heat of passion.
Adequate provocation can reduce a criminal charge,
as from murder to voluntary manslaughter. -Also
termed adequate cause; reasonable provocation. See
HEAT OF PASSION. Cf. SELF-DEFENSE. [Cases: Homicide
(;::J673.]
reasonable provocation. See adequate provocation.
provost marshal. Military law. A staff officer who super
vises a command's military police and advises the com
mander.
proxenete (prok-sd-neet). [Latin fro Greek] Roman & civil
law. 1. A person who negotiates or arranges the terms
of a contract between parties; a broker. 2. [Greek] A
person who negotiates a matchmaker.
Also termed proxeneta.
proximate (prok-sa-mit), adj. (17c) 1. Immediately
before or after. 2. Very near or dose in time or space.
Cf. IMMEDIATE. proximateness, n.
proximate cause. See CAUSE (1).
proximate consequence. (1840) A result following an
unbroken sequence from some (esp. negligent) event.
[Cases: Negligence (;::J383-387.]
proximate damages. See DAMAGES.
proximity. (ISc) The quality or state of being near in
time, place, order, or relation.
proximus pubertati (prok-s<l-mds pyoo-bar-tay-tr).
[Latin] Roman law. Near puberty hence likely to
know right from wrong.
proxy, n. (ISc) 1. One who is authorized to act as a sub
stitute for another; esp., in corporate law, a person who
is authorized to vote another's stock shares. Cf. absentee
vote under VOTE (1). [Cases: Corporations 198(1);
Securities Regulation (;::J49.l0-49.30.] 2. The grant
ofauthority by which a person is so authorized. 3. The
document granting this authority. Also termed (for
sense 3 in Roman law) procuratorium.
proxy contest. A struggle between two corporate factions
to obtain the votes of uncommitted shareholders . A
proxy contest usu. occurs when a group of dissident
shareholders mounts a battle against the corporation's
managers. -Also termed proxy fight. [Cases: Corpo
rations (;::J 198(3).]
proxy directive. A document that appoints a surrogate
decision-maker for the declarant's healthcare deci
sions. Cf. ADVANCE DIRECTIVE; INSTRUCTION DIREC
TIVE; LIVING WILL.
proxy marriage, See MARRIAGE (3).
proxy solicitation. A request that a corporate share
holder authorize another person to cast the sharehold
er's vote at a corporate meeting. [Cases: Corporations
(;::J 198(3); Securities Regulation (;::J49.11.]
1347 puberty
proxy statement. An informational document that
accompanies a proxy solicitation and explains a
proposed action (such as a merger) by the corporation.
[Cases: Corporations \;=> 198(3); Securities Regulation
\;=>49.19.]
PRP. abbr. POTENTIALLY RESPONSIBLE PARTY.
prudent, adj. (14c) Circumspect or judicious in one's
dealings; cautious. prudence, n.
prudent-investor rule. (1960) Trusts. The principle
that a fiduciary must invest in only those securities
or portfolios of securities that a reasonable person
would blJY. The origin of the prudent-investor rule
is Harvard College v. Amory, 26 Mass. 446 (1830). This
case stressed two points for a trustee to consider when
making investments: probable income and probable
safety. The trustee must consider both when making
investments. Originally termed the prudent-man rule,
the Restatement (Third) ofTrusts changed the term to
prudent-investor rule. -Also termed prudent-person
rule. [Cases: Trusts \;=>217.3(5).J
prudent-operator standard. See REASONABLY-PRUDENT
OPERATOR STANDARD.
prudent person. See REASONABLE PERSON.
prudent-person rule. See PRUDENT-INVESTOR RULE.
prurient (pruur-ee-;mt), adj. (17c) Characterized by or
arousing inordinate or unusual sexual desire <films
appealing to prurient interests>. See OBSCENITY.
prurience, n.
PRWORA. abbr. PERSONAL RESPONSIBILITY AND WORK
OPPORTUNITY RECONCILIATION ACT.
p.s. abbr. (usu. cap.) 1. Public statute. See PUBLIC LAW
(2). 2. Postscript.
pseudo-foreign-corporation statute. A state law regu
lating foreign corporations that either derive a specified
high percentage oftheir income from that state or have
a high percentage oftheir stock owned by people living
in that state. [Cases: Corporations (,.'='636.]
pseudograph (soo-d<>-graf). A false writing; a forgery.
pseudo-guarantee treaty. See guarantee treaty under
TREATY (1).
pseudonym (sood-<>-nim), n. A fictitious name or
identity. Cf. ALIAS. [Cases: Federal Civil Procedure
101; Names 10; Parties <>=>6 |
. Cf. ALIAS. [Cases: Federal Civil Procedure
101; Names 10; Parties <>=>67,73.] -pseudony
mous (soo-don-a-m<>s), adj. -pseudonymity (sood
a-nim-a-tee), n.
pseudonymous work. See WORK (2).
pseudopresumption of law. See presumption of law
under PRESUMPTION.
pseudo-stepparent adoption. See second-parent
adoption under ADOPTION.
PSI. abbr. PRESENTENCE INVESTIGATION REPORT.
psychiatric (sI-kee-at-rik), adj. Ofor relating to the study
or treatment ofmental, emotional, and behavioral dis
orders by medical doctors trained in the field of psy
chiatry. psychiatric examination. Criminal law. An analysis
performed by a psychiatrist to determine a defendant's
mental state . A defendant in a criminal prosecution
may undergo a psychiatric examination to determine
competence to stand trial or to establish a defense
based on some mental condition, such as insanity.
Also (more broadly) termed mental examination. See
INSANITY DEFENSE; COMPETENCY (2). Cf. competency
proceeding under PROCEEDING; SUBSTANTIAL-CAPAC
ITY TEST. cr. INDEPENDENT MENTAL EVALUATION.
[Cases: Mental Health G'::::434.]
psychological abuse. See emotional abuse under
ABUSE.
psychological fact. See FACT.
psychological father. See psychological parent under
PARENT.
psychological mother. See psychological parent under
PARENT.
psychological parent. See PARENT.
psychopath (sl-ka-path), n. (1885) 1. A person with a
mental disorder characterized by an extremely antiso
cial personality that often leads to aggressive, perverted,
or criminal behavior. The formal psychiatric term for
the mental illness from which a psychopath suffers is
antisocial personality disorder. 2. Loosely, a person who
is mentally ill or unstable. -Also termed sociopath.
[Cases: Mental Health <8='3.] psychopathy (si-kop
<>-thee), n. psychopathic (sI-k<>-path-ik), adj.
psychotherapist-client privilege. See psychotherapist-
patient privilege under PRIVILEGE (3).
psychotherapist-patient privilege. See PRIVILEGE (3).
PTA. abbr. PATENT-TERM ADJUSTMENT.
PTI. See previously taxed income under INCOME.
PTO. abbr. Patent and Trademark Office. See UNITED
STATES PATENT AND TRADEMARK OFFICE.
PTO Code ofProfessional Responsibility. Disciplinary
rules and canons ofethics for practicing before the U.S.
Patent and Trademark Office . The Code is found at 37
CFR 10.20-10.112. Often shortened to PTO Code.
[Cases: Patents (;:;;97.]
PTP. See publicly traded partnership under PARTNER
SHIP.
puberes (pyoo-b<>-reez), n. pl. [Latin] Roman law.
Children who have reached puberty, whether or not
they have reached the age ofmajority.
puberty. 1. The stage ofphYSical development in which a
person takes on secondary sexual characteristics, when
it becomes possible to reproduce. In females, the
beginning of this stage is marked by the menarche. 2.
Hist. The earliest age at which one could presumptively
consent and to legally enter into a binding marriage.
At English common law, children became marriageable
at the onset oflegal puberty (age 12 for girls and 14 for
boys). At French civil law, a marriage was invalid ifcon
tracted before the end oflegal puberty (age 15 for girls
and 18 for boys). An underage spouse had the power to
1348 Pub.L.
void the marriage. -Also termed (in English common
law) age ofdiscretion.
Pub. L. abbr. PuBLIC LAW (2).
public, adj. (14c) 1. Relating or belonging to an entire
community, state, or nation. [Cases: Municipal Cor
porations C::='721.] 2. Open or available for all to use,
share, or enjoy. 3. (Of a company) having shares that
are available on an open market. [Cases: Corporations
public, n. (16c) 1. The people of a nation or community
as a whole <a crime against the public>. 2. A place open
or visible to the public <in public>.
Public Access to Court Electronic Records. A computer
system by which subscribers can obtain online infor
mation from the federal courts, including information
from a court's docket sheet about the parties, filing, and
orders in a specific case. Abbr. PACER.
public accommodation. See ACCOMMODATION.
public act. See PUBLIC LAW (2).
public action. See civil action under ACTION (4).
publica delicta (p::lb-li-b di-lik-t;l). [Latin] Roman
law. Public wrongs; crimes. See DELICT. Cf. PRIVATA
DELICTA.
public administration. See ADMINISTRATION.
public administrator. See ADMINISTRATOR (2).
public advocate. See ADVOCATE.
public agency. See AGENCY (3).
public agent. See AGENT (2).
publican (p::lb-li-k;ln). 1. A person authorized by license
to keep a public house for consumption of alcoholic
beverages on or off the premises. 2. PUBLICANUS.
publican us (p;lb-li-kay-n;ls). (Latin] Hist. Roman law.
A tax collector. A publicanus was described as "a
farmer ofthe public revenue," although the publicanus
reaped only the money from that sown by the labor of
others. Often shortened to publican.
public appointment. See APPOINTMENT (1).
publication, n. (14c) 1. Generally, the act ofdeclaring or
announcing to the public. 2. Copyright. The offering
or distribution of copies of a work to the public. -At
common law, publication marked the dividing line
between state and federal protection, but the Copyright
Act of1976 superseded most ofcommon -law copyright
and thereby diminished the significance ofpublica
tion. Under the Act, an original work is considered
published only when it is first made publicly available
without restriction. [Cases: Copyrights and Intellectual
Property C::='31.]
''The concept of publication was of immense importance
under the 1909 Act. It became a legal word of art, denoting
a process much more esoteric than is suggested by the lay
definition of the term. That it thus evolved was due largely
to the American dichotomy between common law and stat
utory copyright, wherein the act of publication constituted
the dividing line between the two systems of protection
[state and federal]." 1 Melville B. Nimmer & David Nimmer,
Nimmer on Copyright 4.01, at 4-3 (Supp. 1997). divestitive publication. Archaic. The public distribu
tion of an author's work on a scale large enough to
divest the author of any claim to state common-law
copyright protection . The Copyright Act of 1976
preempted most common-law copyright. -Some
times (erroneously) written divestive publication.
general publication. Distribution of an author's work
to the public, as opposed to a selected group, whether
or not restrictions are placed on the use ofthe work. _
Before the Copyright Act of 1976, a general publica
tion was generally held to divest common-law rights
in a work. Rather, the author was deemed to have
dedicated the work to the public. Cf. limited publi
cation. [Cases: Copyrights and Intellectual Property
C;::;)31.]
investitive publication. Archaic. The public distribu
tion of an author's work on a scale large enough to
qualify for federal statutory copyright protection .
Since 1976 copyright has protected works since their
creation, rather than their publication.
limited publication. Distribution of copies of an
author's work to a selected group for a limited purpose
and with no permission to copy the work, at a time
when copies are not available to the general public.
Before the Copyright Act of 1976 made publica
tion irrelevant, courts distinguished between limited
publication and general publication to decide whether
federal copyright laws applied. Under that Act, a work
published before January 1,1978 without proper
copyright notice entered the public domain unless
the publication was limited. -Also termed private
publication. Cf. general publication. [Cases: Copy
rights and Intellectual Property C::='31.J
private publication. See limited publication.
3. Defamation. The communication of defamatory
words to someone other than the person defamed .
The communication may be in any form, verbal or non
verbal. [Cases: Libel and Slander C::='23.]
"Publication means the act of making the defamatory
statement known to any person or persons other than the
plaintiff himself. It is not necessary that there should be
any publication in the popular sense of making the state
ment public. A private and confidential communication to
a single indiVidual is sufficient. Nor need it be published in
the sense of being written or printed; for we have seen that
actions as well as words may be defamatory. A communi
cation to the person defamed himself, however, is not a
sufficient publication on which to found civil proceedings;
though it is otherwise in the case of a criminal prosecution,
because such a communication may provoke a breach of
the peace. Nor does a communication between husband
and wife amount to publication; domestic intercourse
of this kind is exempt from the restrictions of the law of
libel and slander. But a statement by the defendant to the
wife or husband of the plaintiff is a ground of action."
R.F.V. Heuston, Salmond on the Law ofTorts 154 (17th ed.
1977).
"The publication of a libel might be in the form of a book,
pamphlet or newspaper, but nothing of that nature is
required. A letter sent to a single individual is sufficient."
Rollin M. Perkins & Ronald N. Boyce, Criminal Law 489 (3d
ed. 1982).
1349
4. Wills & estates. The formal declaration made by a
testator when signing the will that it is the testator's
will. There is no requirement that the provisions of
the will or the identities ofthe beneficiaries be revealed
to the witnesses.
publication-quality drawings. Patents. Illustrations or
drawings filed with a patent application and capable of
being scanned. [Cases: Patents C=> 100.]
publication right. Copyright. The right of an author
or artist to decide when to reveal or display a creative
work. Publication is one ofthe moral rights ofartists
recogniz.ed in civil-law countries and much ofEurope,
but largely unavailable in the United States. -Also
termed right ofdisclosure. [Cases: Copyrights and Intel
lectual Property (;:="36.]
public attorney. See ATTORNEY (2).
public authority. See AUTHORITY (3).
pUblic-authority justification. See JUSTIFICATION.
publica vindicta (pab-Ii-k;l vin-dik-t;l). [Latin] Hist. The
protection of the public interest.
public-benefit corporation. See public corporation (3)
under CORPORATION.
public bill. See BILL (3).
public blockade. See BLOCKADE.
public boundary. See BOUNDARY.
public building. A building that is accessible to the
public; esp., one owned by the government. [Cases:
States C::>88.]
Public Buildings Service. A unit in the General Services
Administration responsible for constructing federal
buildings and managing federally owned and leased
property through 11 regional offices. Abbr. PBS.
[Cases: United States C=>57.]
public carrier. See common carrier under CARRIER.
public character. See PUBLIC FIGURE.
public commissioner. See PROSECUTOR (1).
public contract. See CONTRACT.
Public Contracts Act. See WALSH-HEALEY ACT.
public controversy. See CONTROVERSY.
public-convenience-and-necessity standard. (1964)
A common criterion used by a governmental body to
assess whether a particular request or project should
be granted or approved.
public corporation. See CORPORATION.
public debt. See DEBT.
public defender. (1827) A lawyer or staff of lawyers, usu.
publicly appointed and paid, whose duty is to repre
sent indigent criminal defendants. Often shortened
to defender. -Abbr. P.D. [Cases: Criminal Law
1840.]
public delict. See DELICT.
public director. See DIRECTOR.
public disclosure ofprivate facts. See DISCLOSURE (1). public forum
public disturbance. See BREACH OF THE PEACE.
public document. See DOCUMENT.
public domain. (17c) 1. Government-owned land. 2.
Hist. Government lands that are open to entry and
settlement. Today Virtually all federal lands are off
limits to traditional entry and settlement. 3. Intellectual
property. The universe of inventions and creative works
that are not protected by intellectual-property rights
and are therefore available for anyone to use without
charge. _ When copyright, trademark, patent, or trade
secret rights are lost or expire, the intellectual property
they had protected becomes part ofthe public domain
and can be appropriated by anyone without liability
for infringement. [Cases: Copyrights and Intellectual
Property (;:::::::>40.]
"[Plublic domain is the status of an invention. creative
work, commercial symbol, or any other creation that is
not protected by any form of intellectual property. Public
domain is the rule: intellectual property is the exception."
1J. Thomas McCarthy, McCarthy on Trademarks and Unfair
Competition 1.01 [2), at 1-3 (3d ed. 1996).
public-duty doctrine. (1976) Torts. The rule that a
governmental entity (such as a state or municipality)
cannot be held liable for an individual pla |
. The rule that a
governmental entity (such as a state or municipality)
cannot be held liable for an individual plaintiff's injury
resulting from a governmental officer's or employee's
breach ofa duty owed to the general public rather than
to the individual plaintiff. Also termed public-duty
rule. See SPECIAL-DUTY DOCTRINE. [Cases: Municipal
Corporations C=>723.]
public easement. See EASEMENT.
public enemy. See E)<EMY.
public entity. See ENTITY.
public-exchange offer. See OFFER.
public fact. See FACT.
public figure. (1871) A person who has achieved fame
or notoriety or who has voluntarily become involved
in a public controversy . A public figure (or public
official) suing for defamation must prove that the
defendant acted with actual malice. New York Times
Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710 (1964). Also
termed public character. [Cases: Libel and Slander
48(1).]
all-purpose public figure. A person who achieves such
pervasive fame or notoriety that he or she becomes
a public figure for all purposes and in all contexts .
For example, a person who occupies a position with
great persuasive power and influence may become an
all-purpose public figure whether or not the person
actively seeks attention. Gertz v. Robert Welch, Inc.,
418 U.S. 323,345,94 S.Ct. 2997, 3009 (1974). [Cases:
Libel and Slander C=>48(1).]
limited-purpose public figure. (1979) A person who,
haVing become involved in a particular public issue,
has achieved fame or notoriety only in relation to
that particular issue. [Cases: Libel and Slander
48(1).]
public forum. (1935) Constitutional law. A public place
where people traditionally gather to express ideas and
1350 public-function doctrine
exchange views . To be constitutional, the govern
ment's regulation of a public forum must be narrowly
tailored to serve a significant government interest and
must usu. be limited to time-place-or-manner restric
tions. -Also termed open forum. See TIME-PLACE-OR
MANNER RESTRICTION. Cf. NONPUBLIC FORUM. [Cases:
Constitutional Law c>1732.]
''IT]raditional public fora are open for expressive activity
regardless of the government's intent. The objective char
acteristics of these properties require the government to
accommodate private speakers. The government is free
to open additional properties for expressive use by the
general public or by a particular class of speakers, thereby
creating designated public fora. Where the property is not
a traditional public forum, the property is either a nonpub
lie forum or not a forum at aiL" Arkansas Educ. Television
Comm'n v. Forbes, 523 U.S. 666, 678,118 S.Ct. 1633, 1641
(1998).
designated public forum. (1985) Public property that
has not traditionally been open for public assembly
and debate but that the government has opened for
use by the public as a place for expressive activity,
such as a public-university facility or a publicly owned
theater. Unlike a traditional public forum, the gov
ernment does not have to retain the open character of
a designated public forum. Also, the subject matter of
the expression permitted in a designated public forum
may be limited to accord with the character of the
forum; reasonable, content-neutral time, place, and
manner restrictions are generally permissible. But any
prohibition based on the content of the expression
must be narrowly drawn to effectuate a compelling
state interest, as with a traditional public forum.
Also termed limited public forum; nontraditional
public forum. [Cases: Constitutional Law C:":' 1744.]
traditional public forum. (1973) Public property that
has by long tradition -as opposed to governmental
designation -been used by the public for assembly
and expression, such as a public street, public
sidewalk, or public park. To be constitutional, the
government's content-neutral restrictions ofthe time,
place, or manner of expression must be narrowly
tailored to serve a significant government interest,
and leave open ample alternative channels of com
munication. Any government regulation of expres
sion that is based on the content of the expression
must meet the much higher test of being necessary
to serve a compelling state interest. -Also termed
quintessential public forum. [Cases: Constitutional
Law 1736J
public-function doctrine. See PUBLIC-FUNCTION TEST.
public-function rationale. See GOVERNMENTAL-FUNC
TION THEORY.
public-function test. (1966) In a suit under 42 USCA
1983, the doctrine that a private person's actions con
stitute state action ifthe private person performs func
tions that are traditionallv reserved to the state. -Also
termed public-function d;ctrine; public-function theory.
[Cases: Civil Rights c>1326(4,7).]
public fund. See FUND (1). public grant. See PATENT (2).
public ground. See public land under LAND.
public health. See HEALTH.
Public Health Service. The combined offices and units
ofthe U.S. Department ofHealth and Human Services
responsible for promoting the physical and mental
health ofAmerican citizens.
public hearing. See HEARING.
public highway. See HIGHWAY.
public house. 1. Archaic. An inn. 2. A tavern where alco
holic beverages may be bought and consumed on the
premises . The British term pub is an abbreviation
of public house. Also termed (in sense 2) tippling
house.
publici juris (p<lb-li-sI joor-is), adj. [Latin] Of public
right; of importance to or available to the public <a
city holds title to its streets as property publici juris>
<words that are in general or common use and that
are merely descriptive are publici juris and cannot be
appropriated as a trademark>.
public improvement. See IMPROVEMENT.
public injury. See INJURY.
public institution. See INSTITUTION (3).
public instrument. See PUBLIC WRITING.
public interest. (16c) 1. The general welfare ofthe public
that warrants recognition and protection. 2. Some
thing in which the public as a whole has a stake; esp.,
an interest that justifies governmental regulation.
public-interest exception. (1957) The principle that
an appellate court may consider and decide a moot
case -although such decisions are generally prohib
ited -if(1) the case involves a question of considerable
public importance, (2) the question is likely to arise in
the future, and (3) the question has evaded appellate
review. [Cases: Appeal and Error C=781(1); Federal
Courts C:)723.]
public-interest law. Legal practice that advances social
justice or other causes for the public good, such as envi
ronmental protection . Although public-interest law
primarily encompasses private not-for-profit work, the
term is sometimes used to include the work of gov
ernment agencies such as public-defender offices. Cf.
CAUSE LAWYERING; social justice under JUSTICE.
public-interest lawyer. See LAWYER.
public international law. See INTERNATIO:-lAL LAW.
public intoxication. See INTOXICATION.
public invitee. See INVITEE.
publicist.!. A public-relations specialist. 2. An inter
national-law scholar . The term applies to scholars of
both public and private international law.
public-key encryption. See KEY ENCRYPTION.
public land. See LAND.
public law. (16c) 1. The body oflaw dealing with the rela
tions between private individuals and the government,
1351
andwith the structure and operation ofthe government
itself; constitutional law, criminal law, and administra
tive law taken together. Cf. PRIVATE LAW (1). 2. A statute
affecting the general public . Federal public laws are
first published in Statutes at Large and are eventually
collected by subject in the u.s. Code. Abbr. Pub. L.;
P.L. -Also termed public statute (abbr. P.S.); general
statute; (esp. in BrE) public act. Cf. general law (1) under
LAW; general act and public act under ACT (3). [Cases:
Statutes ~'::.'68.] 3. Constitutional law.
public-lending right. Copyright. In the U.K. and some
other countries, the right of an author to a royalty for
works that are lent out by a public library.
public-liability insurance. See liability insurance under
INSDRANCE.
publicly held corporation. See public corporation (1)
under CORPORATION.
publicly traded partnership. See PARTNERSHIP.
public market. See MARKET.
public-meeting law. See SUNSHINE LAW.
public minister. See MINISTER.
public morality. See MORALITY.
public necessity. See NECESSITY.
public notice. See NOTICE.
public nuisance. See NUISANCE.
public offense. See OFFENSE (1).
public offer. See offer to all the world under OFFER.
public offering. See OFFERING.
public office. A position whose occupant has legal
authOrity to exercise a government's sovereign powers
for a fixed period. [Cases: Officers and Public Employ
ees LJ
public official. See OFFICIAL (1).
public passage. A right held by the public to pass over a
body ofwater, whether the underlying land is publicly
or privately owned. [Cases: Navigable Waters (;=>15.]
public-performance right. See PERFORMANCE RIGHTS.
public person. A sovereign government, or a body or
person delegated authority under it.
public place. Any location that the local, state, or national
government maintains for the use of the public, such
as a highway, park, or public building. [Cases: Munici
pal Corporations (;=>721; States ~-:;'88; United States
G'-::::57.J
public policy. (l6c) 1. Broadly, principles and standards
regarded by the legislature or by the courts as being
offundamental concern to the state and the whole of
society. Courts sometimes use the term to justify their
decisions, as when declaring a contract void because it
is "contrary to public policy." -Also termed policy of
the law. [Cases: Contracts (;=>108.]
"The policy of the law, or public policy, is a phrase of
common use in estimating the validity of contracts. Its
history is obscure; it is most likely that agreements which
tended to restrain trade or to promote litigation were the public safety
first to elicit the principle that the courts would look to
the interests of the public in giving efficacy to contracts.
Wagers, while they continued to be legal, were a frequent
provocative of judicial ingenuity on this point, as is suf
ficiently shown by the case of Gilbert v. Sykes [16 East 150
(1812)J ... : but it does not seem probable that the doctrine
of public policy began in the endeavor to elude their
binding force. Whatever may have been its origin, it was
applied very frequently, and not always with the happiest
results, during the latter part of the eighteenth and the
commencement of the nineteenth century. Modern deci
sions, however, while maintaining the duty of the courts to
conSider the public advantage, have tended more and more
to limit the sphere within which this duty may be exer'
cised." William R. Anson, Principles ofthe Law ofContract
286 (Arthur L Corbin ed., 3d Am. ed. 1919).
2. More narrowly, the principle that a person should
not be allowed to do anything that would tend to injure
the public at large.
public-policy limitation. (1961) Tax. A judicially devel
oped principle that a person should not be allowed to
deduct expenses related to an activity that is contrary
to the public welfare . This principle is reflected in
the Internal Revenue Code's specific disallowance
provisions (such as for kickbacks and bribes). [Cases:
Internal Revenue ("':=)3368.]
public pond. See GREAT POND.
public power. See POWER (3).
public property. See PROPERTY.
public prosecutor. 1. See DISTRICT ATTORNEY. 2. See
PROSECUTOR (1).
public purpose. (18c) An action by or at the direction
ofa government for the benefit ofthe community as a
whole. [Cases: Municipal Corporations (;=>861.]
public record. See RECORD.
public-records doctrine. The principle, applicable in
many states, that a third person acquiring or inter
ested in real or immovable property may rely on the
face ofrelevant public records and need not investigate
further for unrecorded interests. [Cases: Vendor and
Purchaser (;=>231.]
public-records exception. The exception from the
hearsay rule for the contents of certain public records
or the absence of a record where it would ordinarily
be kept in public archives. Fed. R. Evid. 803(8)-(10).
[Cases: Criminal Law (;=>429; Evidence (;=>325-337.]
public relations. 1. The business of creating or main
taining a company's goodwill or good public image.
2. A company's existing goodwill or public image.
Abbr. PR.
public reprimand. See REPRIMAND.
public revenue. See REVENUE.
public right. See RIGHT.
public right-of-way. See RIGHT-OF-WAY.
public safety. (16c) The welfare and protection of the
general public, usu. expressed as a governmental
responsibility <Department ofPublic Safety>. [Cases:
Municipal Corporations (:=>595.]
1352 public-safety exception
public-safety exception. (1984) Evidence. An exception
to the Miranda rule, allowing into evidence an other
wise suppressible statement by a defendant concerning
information that the police needed at the time it was
made in order to protect the public. _ If, for example,
a |
concerning
information that the police needed at the time it was
made in order to protect the public. _ If, for example,
a victim tells the police that an assailant had a gun,
and upon the suspect's arrest the police find a holster
but no gun, they would be entitled immediately to ask
where the gun is. Under the public-safety exception,
the suspect's statement of the gun's location would be
admissible. [Cases: Criminal Law (;:::>412.2(3).]
public sale. See SALE.
public school. See SCHOOL.
public seal. See SEAl..
public sector. (1934) The part of the economy or an
industry that is controlled by the government. Cf.
PRIVATE SECTOR.
public security. See SECURITY.
public service. (16c) 1. A service provided or facilitated
by the government for the general public's convenience
and benefit. 2. Government employment; work per
formed for or on behalf of the government. 3. Broadly,
any work that serves the public good, including govern
ment work and public-interest law. [Cases: Officers and
Public Employees (;:::> 1.]
public-service commission. See COMMISSION (3).
public-service corporation. See CORPORATION.
public servitude. See SERVITUDE (2).
public session. See open session under SESSION (1).
public statute. 1. See general statute under STATlJTE. 2.
See PUBLIC LAW (2).
public stock. See STOCK.
public store. See STORE.
public tort. See TORT.
public trial. See TRIAL.
public, true, and notorious. Hist. Eccles. law. The con
cluding words of each allegation in a court petition.
public trust. See charitable trust under TRUST.
public-trust doctrine. The principle that naVigable
waters are preserved for the public use, and that the
state is responsible for protecting the public's right to
the use. [Cases: Navigable Waters G=>2.]
publicum jus (pab-li-kdm j;}s). [Latin] See JUS PUBLI
CUM.
public use. See USE (1).
public-use bar. Patents. A statutory bar that prevents the
granting of a patent for an invention that was publicly
used or sold in the United States more than one year
before the application date. 35 USCA 102(b). _ The
doctrine can be invoked for any public use, any com
mercial use, any sale or offer of sale, or any private
transfer made without a pledge ofsecrecy. Cf. PRIVATE
USE EXCEPTIO~. -Also termed prior-use bar. [Cases:
Patents public-use proceeding. Patents. An investigation into
whether a patent is barred because the invention was
publicly used or sold more than a year before the
application was filed. -Rarely used, this procedure is
instituted upon a petition by someone protesting the
application. Ifthe petition and supporting documents
make out a prima facie case, the examiner will hold a
hearing and issue a final decision, which is not review
able. 37 CFR 1.292. -Abbr. PUP. Cf. PROTEST. [Cases:
Patents
public utility. See UTILITY.
public utility district. See municipal utility district under
DISTRICT.
Public Utility Holding Company Act. A federal law
enacted in 1935 to protect investors and consum
ers from the economic disadvantages produced by
the small number ofholding companies that owned
most of the nation's utilities. -The Act also sought to
protect the public from deceptive security advertising.
15 USCA 79 et seq. Abbr. PUlfCA. [Cases: Public
Utilities (;:::>211-216.]
public verdict. See VERDICT.
public vessel. See VESSEL.
Public Vessels Act. A federal law enacted in 1925 to allow
claims against the United States for damages caused by
one of its vessels. 46 USCA app. 781-90. Abbr.
PVA. [Cases: United States (;:::>78(7).]
public war. See WAR.
public water. See WATER.
public welfare. See WELFARE (1).
public-welfare offense. See OFFENSE (1).
public wharf. See WHARF.
public works. See WORKS.
public worship. See WORSHIP.
public writing. 1. The written acts or records ofa govern
ment (or its constituent units) that are not constitution
ally or statutorily protected from disclosure. -Laws
and judicial records, for example, are public writings.
A private writing that becomes part of a public record
may be a public writing in some circumstances. [Cases:
Records (;:::>54.] 2. Rare. A document prepared by a
notary public in the presence of the parties who sign it
before witnesses. Also termed (in both senses) public
instrument; (in sense 2) escritura publica.
public wrong. See WRONG.
publish, vb. (14c) 1. To distribute copies (of a work) to
the public. 2. To communicate (defamatory words) to
someone other than the person defamed. See INTENT
TO PUBLISH. [Cases: Libel and Slander (;=-'23.] 3. To
declare (a will) to be the true expression of one's tes
tamentary intent. [Cases: Wills (;:~" 119.] 4. To make
(evidence) available to a jury during trial. See PUBLI
CATION.
PUc. abbr. Public Utilities Commission.
1353
pun. abbr. 1. PLANNED-UNIT DEVELOPMENT. 2. See
municipal utility district under DISTRICT.
pudzeld. See WOOD-GELD.
pueblo (pweb-loh). [Spanish] A town or village, esp. in
the southwestern United States.
puer (Pyoo-<"lr), n. [Latin] Roman law. 1. A child, esp. a
boy. 2. A male slave. PI. pueri (pyoor-I).
puerility (Pyoo-<"l-ril-Cl-tee or pyuu-ril-<"l-tee). Civil law.
A child's status between infancy and puberty.
pueritia (Pyoo-<"l-rish-ee-<"l), n. [Latinl Roman law. Child
hood, esp. up to the age of 17, the minimum age for
pleading before a magistrate. Cf. AETAS INFANTIAE
PROXIMA; AETAS PUBERTATI PROXIMA.
puffer. See BY-BIDDER.
puffing. (18c) 1. The expression of an exaggerated
opmlOn as opposed to a factual misrepresenta
tion -with the intent to sell a good or service.
Puffing involves expressing opinions, not asserting
something as a fact. Although there is some leeway in
puffing goods, a seller may not misrepresent them or
say that they have attributes that they do not possess.
Also termed puffery; sales puffery; dealer's talk. [Cases:
Contracts (>94(7); Sales (>38(3),261(5).]
"'Dealer's puffing,' so long as it remains in the realm of
opinion or belief, will not support a conviction of false
pretenses however extravagant the statements." Rollin
M. Perkins & Ronald N. Boyce, Criminal Law 369 (3d ed.
1982).
2. Secret bidding at an auction by or on behalf of a
seller; BY-BIDDING.
Pugh clause. Oil 6-gas. A provision in an oil-and
gas lease modifying the effect ofmost lease-pooling
clauses by severing pooled portions of the lease from
unpooled portions of the lease. -Drilling or produc
tion on a pooled portion will not maintain the lease
for the unpooled portions. The clause is named for
Lawrence G. Pugh, an attorney from Cowley, Louisi
ana, who drafted the first version in 1947. In Texas it is
termed a Freestone rider. See POOLING. [Cases: Mines
and Minerals (>78.1(7).]
PUHCA. abbr. PUBLIC UTILITY HOLDING COMPANY
ACT.
puis (pwis or pwee). [Frenchl Afterwards; since.
puis darrein continuance (pwis dar-ayn bn-tin-yoo
ants). [Law French "since the last continuance"] See
plea puis darrein continuance under PLEA (3).
puisne (pyoo-nee), adj. [Law French] (16c) Junior in
rank; subordinate.
puisne judge. See JUDGE.
puisne mortgage. See junior mortgage under
MORTGAGE.
Pullman abstention. See ABSTENTION.
pulsare (pa]-sair-ee), vb. [Latin] Civil law. To accuse or
charge; to proceed against at law.
pulsator (pal-say-t<"lr). Civil law. A plaintiff or actor. punishment
pumping unit. Oil & gas. Equipment used to pump oil
to the surface when the pressure difference between
the formation and the borehole is not strong enough
to cause oil to rise to the surface. Also termed
pumpjack; horsehead.
pumpjack. See PUMPING UNIT.
punctum temporis (pangk-t<"lm tem-pa-ris). [Latin] A
point oftime; an instant.
punies (pyoo-neez). Slang. Punitive damages. See
punitive damages under DAMAGES.
punishable, adj. (15c) 1. (Of a person) subject to a pun
ishment <there is no dispute that Jackson remains pun
ishable for these offenses>. 2. (Of a crime or tort) giving
rise to a specified punishment <a felony punishable by
imprisonment for up to 20 years>. punishability,
n.
punishment, n. (l5c) 1. A sanction -such as a fine,
penalty, confinement, or loss ofproperty, right, or priv
ilege -assessed against a person who has violated the
law. See SENTENCE.
"Punishment in all its forms is a loss of rights or advantages
consequent on a breach of law. When it loses this quality
it degenerates into an arbitrary act of Violence that can
produce nothing but bad social effects." Glanville Williams,
Criminal Law 575 (2d ed. 1961).
"In the treatment of offenders there is a clear and unmis'
takable line of division between the function of the judge
and that of the penologist. I should modify that: the law
is clear only if it is first made clear in what sense the word
'treatment' is being used. For in this context the word can
be used in two senses, one wide and the other narrow. Let
me take the wide meaning first. The object of a sentence
is to impose punishment. For 'punishment', a word which
to many connotes nothing but retribution, the softer word
'treatment' is now frequently substituted; this is the wider
meaning. The substitution is made, I suppose, partly as a
concession to the school which holds that crime is caused
by mental Sickness, but more justifiably as a reminder that
there are other methods of dealing with criminal tenden
cies besides making the consequences of crime unpleas
ant." Patrick Devlin, The Judge 32-33 (1979).
capital punishment. See CAPITAL PUNISHMENT.
collective punishment. See COLLECTIVE PUNISH
MENT.
corporal punishment. (16c) Physical punishment; pun
ishment that is inflicted upon the body (including
imprisonment). [Cases: Sentencing and Punishment
(>1524, 1525.]
'Past forms of corporal punishment included branding,
blinding, mutilation, amputation, and the use of the
pillory and the stocks. It was also an element in such
violent modes of execution as drowning, stoning, burning,
hanging. and drawing and quartering .... In most parts
of Europe and in the United States, such savage penalties
were replaced by imprisonment during the late eighteenth
and early nineteenth centuries, although capital punish
ment itself remained. Physical chastisement became less
frequent until, in the twentieth century, corporal punish
ment was either eliminated as a legal penalty or restricted
to beating with a birch rod, cane, whip, or other scourge.
In ordinary usage the term now refers to such penal flag
ellation." Gordon Hawkins, "Corporal Punishment," in 1
Encyclopedia of Crime and Justice 251, 251 (Sanford H.
Kadish ed., 1983).
punitive 1354
cruel and unusual punishment. (17c) Punishment
that is torturous, degrading, inhuman, grossly dis
proportionate to the crime in question, or otherwise
shocking to the moral sense of the community .
Cruel and unusual punishment is prohibited by the
Eighth Amendment. [Cases: Sentencing and Punish
ment (:::::> 1430-1607.]
cumulative punishment. (1842) Punishment that
increases in severity when a person is convicted of
the same offense more than once.
deterrent punishment. (1896) 1. Criminal law. Punish
ment intended to deter the offender and others from
committing crimes and to make an example of the
offender so that like-minded people are warned of
the consequences ofcrime. [Cases: Sentencing and
Punishment (:::::>41.] 2. Torts. Punishment intended
to deter a tortfeasor from repeating a behavior or
failing to remove a hazard that led to an injury .
Punitive damages are usu. awarded as a deterrent
punishment.
excessive punishment. (17c) Punishment that is not jus
tified by the gravity of the offense or the defendant's
criminal record. See excessive fine (1) under FINE (5).
[Cases: Sentencing and Punishment (:::::> 32.]
infamous punishment. (16c) Punishment by impris
onment, usu. in a pen |
32.]
infamous punishment. (16c) Punishment by impris
onment, usu. in a penitentiary. See infamous crime
under CRIME.
nonjudicial punishment. Military law. A procedure
under which a commanding officer levies punish
ment against a minor offender who is subject to the
Uniform Code ofMilitary Justice . In the Navy and
Coast Guard, nonjudicial punishment is termed cap
tain's mast; in the Marine Corps, it is termed office
hours; and in the Army and Air Force, it is referred to
as Article 15. Nonjudicial punishment is not a court
martial. [Cases: Armed Services (;:::>39; Military
Justice C::>525.]
preventive punishment. (1893) Punishment intended
to prevent a repetition ofwrongdOing by disabling
the offender. [Cases: Sentencing and Punishment C'-:::>
42.]
reformative punishment. (1919) Punishment intended
to change the character ofthe offender. [Cases: Sen
tencing and Punishment
retributive punishment. (1887) Punishment intended
to satisfy the community's retaliatory sense ofindig
nation that is provoked by injustice. [Cases: Sentenc
ing and Punishment C-~44.]
"The fact that it is natural to hate a criminal does not prove
that retributive punishment is justified." Glanville Williams,
The Sanctity ofLife and the Criminal Law 60 (1957).
2. Family law. A negative disciplinary action adminis
tered to a minor child by a parent. [Cases: Parent and
Child C=2.5.]
punitive, adj. (16c) InvolVing or int1icting punish
ment. Also termed punitory. punitive articles. Articles 77-134 ofthe lIniform Code
ofMilitary Justice . These articles list the crimes in the
military-justice system. [Cases: Armed Services (:::::>35;
Military Justice (:::::>550-789.]
punitive damages. See DAMAGES.
punitive isolation. See punitive segregation under SEG
REGATION (1).
punitive segregation. See SEGREGATION.
punitive statute. See penal statute under STATUTE.
punitory. See PUNITIVE.
punitory damages. See punitive damages under
DAMAGES.
PUP, abbr. See PUBLIC-USE PROCEEDING.
pupil. Scots & civil law. A person who has not reached or
completed puberty. See MINORITY (1).
pupillarity (pyoo-pi-lair-d-tee). Scots & Civil law. The
stage ofa person's life that spans from infancy through
puberty.
pupillary substitution (Pyoo-pd-Ier-ee). See SUBSTITU
TION (5).
pupillus (pyoo-pil-ds), n. [Latin] Roman law. A child
under the age ofpuberty and under the authority of a
sui juris tutor. See TUTELA.
pur (pdr or poor). [Law French] By; for.
pur autre vie (par oh-tr;:! [or oh-tdr] vee). [Law French
"for another's life"] For or during a period measured
by another's life <a life estate pur autre vie>. Also
spelled per autre vie.
purchase, n. (lSc) 1. The act or an instance of buying.
2. The acquisition of real property by one's own or
another's act (as by will or gift) rather than by descent
or inheritance. [Cases: Vendor and Purchaser
Cf. DESCENT (1). -purchase, vb.
compulsory purchase. Rare. See EMINENT DOMAIN.
purchase, words of. See WORDS OF PURCHASE.
purchase accounting method. See ACCOUNTING
METHOD.
purchase agreement. (1909) A sales contract. Cf. REPUR
CHASE AGREEMENT.
blanket purchase agreement. See BLANKET ORDER
(3).
purchase money. (17c) The initial payment made on
property secured by a mortgage. [Cases: Mortgages
(;:::>115.]
purchase-money interest. See purchase-money security
interest under SECURITY INTEREST.
purchase-money mortgage. See MORTGAGE.
purchase-money resulting trust. See TRUST.
purchase-money security interest. See SECURITY
INTEREST.
purchase order. (1916) A document authorizing a seller
to deliver goods with payment to be made later.
Abbr. P.O. [Cases: Sales (:::::>23(1).]
1355
blanketpurchase order. See BLANKET ORDER (3).
purchaser. (14c) 1. One who obtains property for money
or other valuable consideration; a buyer.
affiliated purchaser. Securities. Any of the following:
(1) a person directly or indirectly acting in concert
with a distribution participant in connection with the
acquisition or distribution of the securities involved;
(2) an affiliate who directly or indirectly controls the
purchases of those securities by a distribution par
ticipant, or whose purchases are controlled by such a
participant, or whose purchases are under common
control with those of such a participant; (3) an affili
ate, who is a broker or a dealer (except a broker-dealer
whose business consists solely of effecting transac
tions in "exempted securities," as defined in the
Exchange Act); (4) an affiliate (other than a broker
dealer) who regularly purchases securities through
a broker-dealer, or otherwise, for its own account or
for the account ofothers, or recommends or exercises
investment discretion in the purchase or sale ofsecu
rities (with certain specified exceptions). SEC Rule
lOb-lS(a)(2) (17 CFR 240.lOb-lS(a)(2.
bonafide purchaser. (1Sc) One who buys something
for value without notice of another's claim to the
property and without actual or constructive notice
of any defects in or infirmities, claims, or equities
against the seller's title; one who has in good faith
paid valuahle consideration for property without
notice of prior adverse claims. -Generally, a bona
fide purchaser for value is not affected by the transf
eror's fraud against a third party and has a superior
right to the transferred property as against the trans
feror's creditor to the extent ofthe consideration that
the purchaser has paid. -Abbr. BFP. Also termed
bona jide purchaser for value; good-faith purchaser;
purchaser in good faith; innocent purchaser; innocent
purchaser for value. [Cases: Sales (;::::::>234(1); Vendor
and Purchaser (;::::::>220.J
good-faith purchaser. See bona fide purchaser.
innocent purchaser. See bona fide purchaser.
innocent purchaser for value. See bona fide pur
chaser.
purchaser for value. A purchaser who pays consider
ation for the property bought.
purchaser in goodfaith. See bona fide purchaser.
purchaser pendente lite. One who buys an interest in
something that is the subject of a pending lawsuit.
[Cases: Lis Pendens <8=>22(4), 23.]
2. One who acquires real property by means other than
descent, gift, or inheritance.
first purchaser. An ancestor who first acquired an
estate that still belongs to the family.
pure acddent. See unavoidable accident under
ACCIDENT.
pure annuity. See nonrefund annuity under ANNUITY. purpart
pure-comparative-negligence doctrine. (1976) The
principle that liability for negligence is apportioned
in accordance with the percentage of fault that the
fact-finder assigns to each party and that a plaintiff's
percentage of fault reduces the amount of recoverable
damages but does not bar recovery. See comparative
negligence under NEGLIGENCE; APPORTIONMENT OF
LIABILITY. Cf. 50-PERCENT RULE. [Cases: Negligence
~-:>549(lO).1
pure debt. See pure obligation under OBLIGATION.
pure easement. See easement appurtenant under
EASEMENT.
pure freezeout. See FREEZEOUT.
pure mark. See technical trademark under TRADE
MARK.
pure obligation. See OBLIGATION.
pure plea. See PLEA (3).
pure race statute. See RACE STATUTE.
pure risk. See RISK.
pure speech. See SPEECH.
pure theory. The philosophy ofHans Kelsen, in which he
contends that a legal system must be "pure" -that is,
self-supporting and not dependent on extralegal values.
-Kelsen's theory, set out in such works as General
Theory ofLaw and the State (1945) and The Pure Theory
ofLaw (1934), maintains that laws are norms handed
down by the state. Laws are not defined in terms of
history, ethics, sociology, or other external factors.
Rather, a legal system is an interconnected system of
norms, in which coercive techniques are used to secure
compliance. The validity of each law, or legal norm, is
traced to another legal norm. Ultimately, all laws must
find their validity in the society's basic norm (grund
norm), which may be as simple as the concept that the
constitution was validly enacted. See basic norm under
NORM.
pure trademark. See technical trademark under TRADE
MARK.
pure villeinage. See VILtEINAGE.
purgation (par-gay-sh;m). Hist. The act of cleansing or
exonerating oneself ofa crime or accusation by an oath
or ordeal.
canonical purgation. Purgation by oath-helpers in an
ecclesiastical court. See COMPURGATION.
vulgar purgation. Purgation by fire, hot irons, battle,
or cold water; purgation by means other than by oath
helpers. _ Vulgar purgation was so called because it
was not sanctioned by the church after 1215.
purgatory oath. See OATH.
purge, vb. (13c) To exonerate (oneself or another) of gUilt
<the judge purged the defendant ofcontempt>. [Cases:
Contempt (:::;>S1.)
purpart (p;)r-pahrt). A share of an estate formerly held
in common; a part in a division; an allotment from
1356 purparty
an estate to a coparcener. Formerly also termed
purparty; perparts; pourparty.
purparty (p3r-pahr-tee). See PURPART.
purport (p3r-port), n. (ISc) The idea or meaning that is
conveyed or expressed, esp. by a formal document.
purport (pdr-port), vb. (l7c) To profess or claim, esp.
falsely; to seem to be <the document purports to be a
will, but it is neither signed nor dated>.
purported, adj. (1885) Reputed; rumored.
purpose. (l3c) An objective, goal, or end; specif., the
business activity that a corporation is chartered to
engage in. [Cases: Corporations 14.]
purpose approach. See MISCHIEF RULE.
purpose dause. An introductory clause to a statute
explaining its background and stating the reasons for
its enactment. [Cases: Statutes C=210.)
purposeful, adj. Done with a specific purpose in mind;
deliberate.
purposive construction. See CONSTRUCTION.
purpresture (pdr-pres-chdr). (14c) An encroachment
upon public rights and easements by appropriation to
private use ofthat which belongs to the public. -Also
spelled pourpresture.
purprise (pdr-prIz), vb. [Law French) Hist. To encroach
on land illegally; to make a purpresture.
purse, n. A sum of money available to the winner ofa
contest or event; a prize. lCases: Gaming
purser. A person in charge of accounts and documents
on a ship. [Cases: ShippingC=74.]
purse-snatching. The stealing of a handbag or other
similar item by seizing or grabbing it from a victim's
physical possession and then fleeing, often without
harm or threat ofharm to the victim. Purse-snatch
ing is usu. a type of larceny. But if the perpetrator
uses great force to take the bag or injures or threatens
to injure the victim, it may instead be classified as a
robbery. Cf. LARCENY; ROBBERY. [Cases: Larceny C:J
19; Robbery C= 6.)
pursuant to. (16c) 1. In compliance with; in accordance
with; under <she filed the motion pursuant to the
court's order>. 2. As authorized by; under <pursuant
to Rule 56, the plaintiff moves for summary judgment>.
3. In carrying out <pursuant to his responsibilities, he
ensured that all lights had been turned out>.
pursuer. Civil & Scots law. A plaintiff.
pursuit. (14c) 1. An occupation or pastime. 2. The
act of chasing to overtake or apprehend. See FRESH
PURSUIT.
pursuit ofhappiness. (18c) The principle announced
in the Declaration ofIndependence that a person
should be allowed to pursue the person's desires (esp.
in regard to an occupation) without unjustified inter
terence by the government. [Cases: Constitutional Law
(;::::> 1107.] pur tant que (pdr tant kyoo or poor tahn kd). [Law
French] Forasmuch as; because; for the purpose of.
purus idiota (pyoor-<:ls id-ee-oh-t<:l). [Latin) An absolute
or congenital idiot. See IDIOT.
purview (p3r-vyoo). (15c) 1. Scope; |
ital idiot. See IDIOT.
purview (p3r-vyoo). (15c) 1. Scope; area of application.
2. The body ofa statute following the preamble.
"The word 'purview' appears sometimes to be confined
to so much of the body of the statute as would be left by
omitting the exceptions, provisos, and savings clauses; and
as the word is ambiguous, and not very useful at best, a
wise course may be not to use it at all." William M, Ule et aI.,
Brief Making and the Use ofLaw Books 336 (3d ed. 1914),
pusher. A person who sells illicit drugs. [Cases: Con
trolled Substances C~32.)
Pushman doctrine. Archaic. The rule that transfer of
an unpublished work transfers the common-law copy
right to the work along with the work itself . Ihe name
derives from Pushman v. New York Graphic Socy, Inc.,
39 N.E.2d (N.Y. 1942). The doctrine was rejected by
202 of the Copyright Act of 1976, but it remains in
effect for transfers completed before the provision's
effective date ofJanuary 1, 1978.
"[AJn outright sale of a material object, such as a book,
canvas, or master tape of a musical work, does not
transfer copyright. One possible exception to this rule
is the Pushman doctrine under which an author or artist
who has sold an unpublished work of art or a manuscript
is presumed to have transferred his common law copy'
right, unless the copyright has been specifically reserved."
Marshall A. Leaffer, Understanding Copyright Law 211 (3d
ed. 1999).
put, n. See put option under OPTION.
putative (PyOO-ld-tiv), adj. (ISc) Reputed; believed;
supposed.
putative damages. See DAMAGES.
putative father. See FATHER.
putative-father registry. Family law. An official roster
in which an unwed father may claim possible paternity
of a child for purposes of receiving notice of a
spective adoption of the child. [Cases: Adoption
12; Children Out-of-Wedlock C=' 12.]
Putative Fathers Act. See UNIFORM PUTATIVE AND
UNKNOWN FATHERS ACT.
putative marriage. See MARRIAGE (1).
putative matrimony. See putative marriage under
MARRIAGE (1).
putative spouse. See SPOUSE.
putative-spouse doctrine. See putative marriage under
MARRIAGE (1).
put bond. See BOND (3).
put in, vb. (ISc) To place in due form before a court; to
place among the records of a court.
put on notice. See CHARGED WITH NOTICE.
put option. See OPTION.
put out. See EVICT (1).
put price. See strike price under PRICE.
1357
puttable (puut-;:J-b;:Jl), adj. (Of a security) capable of
being required by the holder to be redeemed by the
issuing company.
put the question. (Of the chair) to formally state a
question in its final form for the purpose of taking a
vote. Cf. STATE THE QUESTION.
putting infear. (17c) The threatening ofanother person
with violence to compel the person to hand over
property. These words are part of the common-law
definition ofrobbery. [Cases: Robbery
putting to the horn. Scots law. See HORNING.
put to the horn. Scots law. To declare (a person) an
outlaw. -Also termed be at the horn.
PYA. abbr. PUBLIC VESSELS ACT.
PVPA. abbr. PLANT VARIETY PROTECTION ACT.
PWBA. abbr. PENSION AND WELFARE BENEFITS ADMIN
ISTRATION.
pyramid distribution plan. See PYRAMID SCHEME. pyramid scheme
pyramiding. A speculative method used to finance
a large purchase of stock or a controlling interest
by pledging an investment's unrealized profit. See
LEVERAGE; MARGIN.
pyramiding inferences. See INFERENCE-STACKING.
pyramiding inferences, rule against. (1959) Evidence.
A rule prohibiting a fact-finder from piling one infer
ence on another to arrive at a conclusion . Today this
rule is followed in only a few jurisdictions. Cf. REASON
ABLE-INFERENCE RULE. [Cases: Criminal LawC;:;::)306;
Evidence
pyramid scheme. (1949) A property-distribution scheme
in which a participant pays for the chance to receive
compensation for introducing new persons to the
scheme, as well as for when those new persons them
selves introduce participants . Pyramid schemes are
illegal in most states. Also termed endless-chain
scheme; chain-referral scheme; multilevel-distribution
program; pyramid distribution plan. Cf. PONZI SCHEME.
[Cases: Antitrust and Trade Regulation
Q
Q. abbr. (l6c) QUESTION (1). This abbreviation is almost
always used in deposition and trial transcripts to denote
each question asked by the examining lawyer.
Q-and-A. abbr. (1837) QUESTION-AND-A>lSWER.
Q.B. abbr. QUEEN'S BENCH.
Q.B.D. abbr. BENCH DIVISION.
Q.C. abbr. QUEEN'S COUNSEL.
qcf. abbr. QUARE CLAUSUM FREGIT.
QD. abbr. [Latin quasi dicatl (16c) As ifhe should say.
QDOT. abbr. QUALIFIED DOMESTIC TRUST.
QDRO (kwah-droh). abbr. QUALIFIED DOMESTIC-RELA
TIONS ORDER.
QED. abbr. [Latin quod erat demonstranduml (l7c)
Which was to be demonstrated or proved.
QEF. abbr. [Latin quod erat faciendum] Which was to
be done.
QEN. abbr. [Latin quare executionem non] Whyexecu
tion should not be issued.
QMCSO. abbr. QUALIFIED MEDICAL CHILD- SUPPORT
ORDER.
QPRT. abbr. QUALIFIED PERSONAL-RESIDENCE TRUST.
qq.v. See Q.V.
Q.S. See quarter session under SESSION (1).
QSST. abbr. See qualified S-corporation trust under
TRUST (3).
Q.T. abbr. QUI TAM ACTION.
QTIP (kyoo-tip). abbr. QUALIFIED-TERMINABLE-INTER
EST PROPERTY.
QTIP trust. See TRUST.
qua (kway or kwah). [Latin) (l7c) In the capacity of; as
<the fiduciary, qua fiduciary, is not liable for fraud, but
he may be liable as an individual>.
quacumque via data (kway-kam-kwee VI-d day-td).
[Latin] Whichever way given; whichever way you take
it.
quadragesima (kwah-drd-jes-i-ma), n. [Latin "fortieth"]
Hist. 1. Lent so called because it runs about 40 days.
2. The first Sunday in Lent -so called because it is
about the fortieth day before Easter.
quadragesimals (kwah-dra-jes-i-malz), n. pl. [fro Latin
quadragesima "the fortieth"] Hist. Offerings made on
Mid- Lent Sunday by daughter churches to the mother
church.
quadriennium (kwah-dree-en-ee-dm), n. [Latin fro
quatuor "four" + annus "year"] 1. Roman law. The four
year course of study required oflaw students before
they were qualified to study the Code or collection of imperial constitutions. 2. Scots law. See QUADRIENNIUM
UTILE.
quadriennium utile (kwah-dree-en-ee-am yoo-ta
lee). Scots law. A four-year period after the attainment
of majority within which the young adult may seek
to annul any contract made while the person was a
minor. -Sometimes shortened to quadriennium.
quadripartite, adj. Hist. (Of an indenture, etc.) drawn,
diVided, or executed in four parts.
quadripartite, n. A book or treatise divided into four
parts.
quadruplator (kwah-droo-pla-tor), n. [Latin] Roman
law. An informer who, by law, could institute criminal
proceedings and then receive a reward ofa fourth part
of the thing informed against, usu. relating to frauds
on the fiscus. PI. quadruplatores (kwah-dra-pla-tor
eez).
quadruplicatio (kwah-dra-pli-kay-shee-oh), n. [fro Latin
quadruplicatus "quadrupled"]l. Roman law & civil
law. A defendant's pleading, following the triplicatio
and similar to the rebutter at common law; the third
defensive pleading. -Also termed quadruplication;
(in old Scots law) quadruply. 2. Roman law. A plaintiff's
pleading, following the triplicatio, the replicatio, and
the exceptio. PI. quadruplicationes (kwah-dra-pli-kay
shee-oh-neez).
quae cadit in virum constantem (kwee kay-dit in
VI-r<:lm kan-stan-t<:lm). [Latin] Hist. That which would
overcome a man of firmness and resolution.
quae cadunt in non causam (kwee kay-d<:lnt in non kaw
zam). [Law Latin] Hist. Those things that we lose on the
cessation ofthe title by which we hold them.
quae est eadem (kwee est ee-ay-dam). [Law Latin] Hist.
Which is the same. _ This phrase was used by a defen
dant in a trespass action to show that the trespass the
defendant was justified in committing was the same
as that alleged in the plaintiff's pleading; that is, the
plaintiff gave the defendant permission to enter, and so
the defendant entered the property. -Formerly also
termed que est Ie mesme.
quaefunctionem recipiunt (kwee fungk-shee-oh-ndm
ri-sip-ee-;mt). [Law Latin] Hist. Things whose value
depends on the class of things to which they belong
(e.g., money, corn, etc.) . The phrase appeared in refer
ence to fungibles - that is, things that could be generi
cally estimated by quantity or weight. Cf. QUAE NON
RECIPIUNT FUNCTIONEM.
quae non mente sed manu tenentur (kwee non men-tee
sed man-yoo ta-nen-tdr). [Law Latin "things that are
held not by the mind but by hand"] Hist. The natural
1359
parental duties arising from affection for one's child, as
distinguished from purely legal obligations.
quae non recipiunt functionem (kwee non ri-sip-ee-<lnt
fungk-shee-oh-n<lm). [Law Latin] Hist. They that do
not supply the place of others. The phrase appeared
in reference to goods that are unique, specific, or irre
placeable. Cf. QUAE FUNCTIONEM RECIPIUNT.
quae perimunt causam (kwee per-<l-m<lnt kaw-z<lm).
[Latin] Hist. Pleas (such as peremptory defenses) that
take away the basis of an action.
quae plura (kwee ploor-<l). [Law Latin "what more"]
Hist. A writ ordering the escheator, when it appeared
that not all ofa decedent's property had been located,
to inquire about any additional lands and tenements
the decedent held at the time of death.
quaequidem (kwee-kwid-<lm). [Law Latin "which
indeed" or "accordingly"] Hist. The introductory words
of a charter clause showing, among other things, the
manner in which the grantor obtained title.
quaere (kweer-ee), vb. [Latin] (17c) Inquire; query;
examine. This term was often used in the syllabus
ofa reported case to show that a point was doubtful or
open to question.
quaerens (kweer-enz), n. [Law Latin] Hist. One who
complains; a plaintiff.
quaerens nihil capiatper billam (kweer-enz llI-hil kap
ee-<lt p<lr bil-<lm). [Law Latin] Hist. Let the plaintiff take
nothing by his bilL. This was a form of judgment for
the defendant.
quaerens non invenit plegium (kweer-enz non in-vee
nit plee-jee-<lm). [Law Latin "the plaintiff did not find
a pledge"] Hist. A sheriff's return to a writ requiring
him to take security from the plaintiff for prosecution
of the plaintiffs claim.
quaeritur (kwee-ri-tar or kwer-i-t<lr), n. [Latin] Roman
law. It is questioned . This term introduced a doubtful
legal problem.
quae sapiunt delictum (kwee say-pee-<lnt di-lik-t<lm).
[Law Latin] Hist. Things that partake of the character
of delict.
quae sequuntur personam (kwee si-kw'ln-t<lr p<lr-soh
n<lm). [Latin] Hist. Things that follow the person . 'Ibe
phrase usu. referred to movable property.
quae servando servari nequeunt (kwee s<lr-van-doh sar
vair-I nee-kwee-<lnt). [Latin] Hist. Things that cannot
be preserved uninjured by keeping . The phrase U5U.
referred to perishable goods.
quaesita. See QUAESTA.
quae solum Deum habent ultorem (kwee soh-l;~m
dee-<lm hay-b;mt al-tor-;:lm). [Latin] Hist. Acts that have
only God as avenger; crimes that can |
mt al-tor-;:lm). [Latin] Hist. Acts that have
only God as avenger; crimes that can be punished only
by God.
quaesta (kwees-t<l), n. [Latin "demands"] Remissions of
penance, authorized by the Pope to those who contrib
uted a certain amount to the church. Also termed
quesita; quaesita. quaestor sacri palatii
quaestio (kwes-chee-oh or kwees-), n. [Latin fro quaerere
"to inquire"] Roman law. l. A special commission of
the Senate appointed to hear criminal cases involv
ing the public interest, sometimes with the power to
try all cases of a given class arising within a specified
period. Also termed quaestio extraordinaire. 2.
QUAESTIO PERPETUA. 3. An interrogation by inflict
ing torture. 4. The torture 50 inflicted. PI. quaestiones
(kews-chee-oh-neez or kwees-).
quaestio extraordinaire. See QUAESTIO (1).
quaestionarius (kwes-chee-<l-nair-ee-<ls). See
QUAESTOR.
quaestio perpetua (kwes-chee-oh-neez p<lr-pech-oo-ee).
[Latin "perpetual inquiry"] Roman law. A permanent
commission to hear criminal cases; specif., a standing
jury court created by statute to try and pass sentence on
particular crimes. PI. quaestiones perpetuae.
"Then in 149 the lex Calpurnia was passed, concerned not
only with reparation but also punishment; it established
a permanent court of senators as sworn jurors to deal
with claims of provincial extortion. Thereafter, both the
senatorial special commissions, and also the jurisdiction
of the assemblies began in their turn to be superseded
by the creation of quaestiones perpetuae, permanent jury
courts, [which) provided, each for its own offence or range
of offences a framework." O.F. Robinson, The Criminal Law
ofAncient Rome 1-2 (1995).
quaestio vexata (kwes-chee-oh vek-say-t<l). [Law Latin]
See VEXED QUESTION.
quaestio voluntatis (kwes-chee-oh vol-;:ln-tay-tis).
[Latin] Hist. A question of intention.
quaestor (kwes-t;:lr or kwees-t<lr), n. [Latin]l. Roman
law. A magistrate, subordinate to the consuls or provin
cial governors, who maintained and administered the
public money, performing tasks such as making nec
essary payments, receiving revenues, keeping accurate
accounts, registering debts and fines, supervising the
accommodation offoreign ambassadors, and financing
the burials and monuments of distinguished citizens.
2. Hist. An agent ofthe Pope who carried quaesita from
door to door. Also termed quaesitor; questionarius.
See QUAESTA. PI. quaestores. -quaestorial, adj.
quaestorship, n.
"The office of quaestor goes back at least to the beginning
of the Republic. Each year two quaestors were nominated
by the consuls, later elected by the comitia tributa, to assist
the consuls in matters of finance. This continued to be their
principal concern, but they enlarged their functions as their
numbers increased." R.w. Lee, The Elements ofRoman Law
15 (4th ed. 1956).
quaestores parricidii (kwes-tor-eez par-a-sI-dee- I), n. pl.
[Latin "quaestors ofparricide"] Roman law. Two officers
ofthe early Republic who were deputized to search out
and try all cases ofparricide and other capital offenses.
See LEX POMPEIA DE PARRICIDIIS.
quaestor sacri palatii (kwes-t<lr say-krI p<l-Iay-shee-r).
[Latin "quaestor ofthe sacred palace" JRoman law. An
officer of the imperial court who acted as legal adviser
to the emperor.
"The quaestor sacri palatii was one of the highest civil
functionaries in the later Empire, concerned with the
1360 quaestus
preparation of enactments and legal decisions to be
issued by the emperor. He was the principal legal adviser
of the emperor and he was [often] chosen from among the
persons with considerable legal training." Adolf Berger,
Encyclopedic Dictionary of Roman Law 664 (1953).
quaestus (kwes-t;:ls or kwee-st<ls), n. [Latin] 1. Roman
law. Profit, esp. from a business. 2. Hist. Acquisition;
purchase. This term refers to a purchased estate, as
distinguished from hereditas, referring to an estate
obtained by descent.
quae sunt in patrimonio nostro (kwee 5<lnt in pa-tr;)
moh-nee-oh nos-troh). [Latin] Hist. Things that form
part of our possession.
quae transeunt per commercium (kwee tran-see-;mt
[or tran-zee] p;)r b-m3r-shee-;:Im). [Law Latin] Hist.
Things that pass through commerce; things that are
bought and sold.
quale jus (kway-Iee or kwah-lee j3S). [Latin "what
kind of right"] Hist. A writ ordering an escheator to
inquire into the extent of a religiOUS person's right to
a judgment, before its execution, to make sure that
the judgment was not colluSively made to avoid the
mortmain statute.
qualificate (kwah-li-fi-kay-tee). [Law Latin] Hist. Quali
fiedly.
qnalification. (l6c) 1. The possession of qualities or
properties (such as fitness or capacity) inherently or
legally necessary to make one eligible for a position or
office, or to perform a public duty or function <voter
qualification requires one to meet residency, age, and
registration requirements>. [Cases: Officers and Public
Employees ~35.12. A modification or limitation of
terms or language; esp., a restriction of terms that
would otherwise be interpreted broadly <the contract
contained a qualification requiring the lessor's permis
sion before exercising the right to sublet>. 3. CHARAC
TERIZATION (1). qualify, vb.
qualified, adj. (16c) 1. Possessing the necessary
qualifications; capable or competent <a qualified
medical examiner>. 2. Limited; restricted <qualified
immunity>. qualify, vb.
qualified acceptance. See ACCEPTANCE (1).
qualified corporation. See admitted corporation under
CORPORATION.
qualified disclaimer. See DISCLAIMER.
qualified domestic-relations order. (1984) A state-court
order or judgment that relates to alimony, child support,
or some other state domestic-relations matter and that
(1) recognizes or provides for an alternate payee's right
to receive all or part of any benefits due a participant
under a penSion, profit-sharing, or other retirement
benefit plan, (2) otherwise satisfies 414 ofthe Internal
Revenue Code, and (3) is exempt from the ERISA rule
prohibiting the assignment ofplan benefits . Among
other things, the QDRO must set out certain facts,
including the name and last-known mailing address of
the plan participant and alternate payee, the amount or
percentage ofbenefits going to the alternate payee, and the number ofpayments to which the plan applies. The
benefits provided under a QDRO are treated as income
to the actual recipient. IRC (26 USCA) 414(p)(1)(A);
29lJSCA 1056(d)(3)(D)(i). -Abbr. QDRO. [Cases:
Divorce 0252.3(4); Internal Revenue C~3587; Labor
and Employment 0594.]
qualified domestic trust. See TRUST.
qualified elector. See ELECTOR.
qualified estate. See ESTATE (1).
qualified fee. 1. See fee simple defeasible under FEE
SIMPLE. 2. See fee simple determinable under FEE
SIMPLE. 3. See base fee under FEE (2).
qualified general denial. See DENIAL.
qualified immunity. See IMMUNITY (1).
qualified income trust. See Miller trust under TRUST.
qualified indorsement. See INDORSEMENT.
qualified institutional buyer. See BUYER.
qualified investor. See INVESTOR.
qualifiedly (kwah-I;l-fId-lee or -fI-<ld-lee), adv. In a fit or
qualified manner <qualifiedly privileged>.
qualified martial law. See MARTIAL LAW.
qualified medical child-support order. A family-court
order that enables a nonemployee custodial parent
without the employee parent's consent -to enroll the
child, make claims, and receive payments as needed
under the employee parent's group health plan, all at
the employee parent's expense . The group-health
plan administrator must find that the order meets the
requirements ofa QMCSO, which are established by
609(a) of the Employee Retirement Income Security
Act, 29 USCA 1169(a). -Abbr. QMCSO. [Cases:
Child Support (::::::> 158.]
qualified nuisance. See NUISANCE.
qualified opinion. An audit-report statement contain
ing exceptions or qualifications to certain items in the
accompanying financial statement.
qualified ownership. See OWNERSHIP.
qualified pension plan. See PENSION PLAN.
qualified personal-residence trust. See TRUST.
qualified plan. 1. See qualified pension plan under
PENSION PLAN. 2. See qualified profit-sharing plan
under PROFIT-SHARING PLAN.
qualified privilege. See PRIVILEGE (1).
qualified profit-sharing plan. See PROFIT-SHARING
PLAN.
qualified property. See PROPERTY.
qnalified residence interest. See INTEREST (3).
qualified S-corporation trust. See TRUST (3).
qualified stock option. See STOCK OPTION.
qualified subchapter-S corporation trust. See qualified
S-corporation trust under TRUST (3).
qualified-terminable-interest property. See PROPERTY.
qualified veto. See VETO.
qualified voter. 1. See qualified elector under ELECTOR.
2. VOTER (2).
qualified witness. See WITNESS.
qualifying event. Anyone ofseveral specified occasions
that, but for the continuation-of-coverage provisions
under the Consolidated Omnibus Budget Reconcili
ation Act of 1985 (COBRA), would result in a loss
of benefits to a covered employee under a qualified
benefit plan. These occasions include employment
termination, a reduction in work hours, the employee's
separation or divorce, the employee's death, and the
employer's bankruptcy. IRC (26 USCA) 4980B(f)(3).
[Cases: Labor and Employment C='568.]
qualifying share. See SHARE (2).
qualitatively incidental private benefit. See PRIVATE
BENEFIT.
quality. 1. The particular character or properties of a
person, thing, or act, often essential for a particular
result <she has leadership quality> <greed is a negative
quality>. 2. The character or degree of excellence of a
person or substance, esp. in comparison with others
<the quality of work performed under the contract>.
quality of estate. (18c) 1. The period when the right
of enjoying an estate is conferred upon the owner,
whether at present or in the future. 2. The manner in
which the owner's right ofenjoyment of an estate is to
be exercised, whether solely, jointly, in common, or in
coparcenary.
quality-of-products legislation. See LEMON LAW (2).
quamdiu (kwam-dee-yoo). [Latin] Hist. As long as; so
long as . This was a word ofiimitation formerly used
in conveyances.
quamdiu bene se gesserint (kwam-dee-yoo bee-nee see
jes-ar-int). [Law Latin] As long as they shall conduct
themselves properly . This term refers to the holding
of an office, specif. the Act of Settlement, 1700, ch. 2,
which provided that a judge's tenure was no longer at
the king's pleasure, but could continue until death or
improper conduct. This protected judges against arbi
trary dismissal. The singular form is quamdiu se bene
gesserit "as long as he behaves himself properly." -Also
written quamdiu se bene gesserint. Cf. GOOD BEHAVIOR;
DURANTE BENE PLACITO.
"But at present, by the long and uniform usage of many
ages, our kings have delegated their whole judicial power
to the judges of their several courts ... , And, in order to
maintain both the dignity and independence of the judges
in the superior courts, it is enacted by the statute 13 W. Ill.
c.2 that their commissions shall be made (not as formerly.
durante bene placito, but) quamdiu bene se gesserint. and
their salaries ascertained and established; but that it may
be lawful to remove them on the address of both houses
of parliament," 1 William Blackstone, Commentaries on the
Laws of England 267 (1765).
quamdiu se bene gesserint. [Latin "as long as they behave
themselves properly"] 1he singular form is quamdiu
se bene gesserit "as long as he behaves himself properly."
The plural form appears in the Act ofSettlement (1701) to protect judges against arbitrary dismissal. Cf. DUM
SE BENE GESSERIT.
quamdiu sustinuit istam furiositatem (kwam-dee
yoo sas-tin-[y]oo-it is-tam fyoor-ee-ahs-a-tay-tam).
[Law LatinJ Hist. How long he has labored under that
insanity.
quamprimum (kwam-prr-mam). [Latin] Hist. As soon
as possible.
quamvis non potueritdare |
am-prr-mam). [Latin] Hist. As soon
as possible.
quamvis non potueritdare (kwam-vis non pah-tyoo-air
it [or pah-choo-] dair-eel. [Law Latin] Hist. Although
he had not been able to give or administer it.
quando acciderent (kwahn-doh ak-si-deer-ant). [Latin]
A judgment entered against a decedent's personal rep
resentative, to be satisfied bv the estate out ofassets that
the representative receives 'after judgment.
quandocunque (kwahn-doh-k;mg-kwee). [Latin] Hist.
At any time.
quandocunque decederit (kwahn-doh-kang-kwee
di-see-dar-it). [Latin] Hist, Whenever he died.
quango (kwang-goh). See QIJASI-AUTONOMOUS NONGOV
ERNMENTAL ORGANIZATION.
quanti minoris (kwon-tI mi-nor-is). [Latin "how much
less") Civil law. An action brought by a purchaser ofan
article to reduce the purchase price due to the article's
defects. [Cases: Sales C=>188; Vendor and Purchaser
C=)174, 334(1).J
quantitatively incidental private benefit. See PRIVATE
BENEFIT.
quantitative rule. (1919) An evidentiary rule requir
ing that a given type of evidence is insufficient unless
accompanied by additional evidence before the case
is closed . Such a rule exists because of the known
danger or weakness of certain types of evidence.
Also termed synthetic rule.
quantity discount. See volume discount under
DISCOUNT.
quantum (kwon-tam). [Latin "an amount"] The
required, desired, or allowed amount; portion or share
<a quantum ofevidence>. PI. quanta (kwon-ta).
quantum damnificatus (kwon-tam dam-na-fi-kay
tas). [Latin "how much damnified"] Hist. The issue of
damages submitted by a court ofequity to the jury.
quantum et quale? (kwon-tam et kway-Iee or kwah-Iee).
[Latin] Roman & Scots law. How much and of what
kind?
"It is not unusual for parties to a submission to agree that,
in the event of no final decree-arbitral being pronounced.
the proof taken in the course of the submission shall be
received as legal probation quantum et quale (i.e., to the
same extent and as of the same quality or effect) in any
after-submission or process at law between the same
parties regarding the same matter," John Trayner. Travner's
Latin Maxims 505 (4th ed. 1894).
quantum meruit (kwon-tam mer-oo-it). [Latin "as much
as he has deserved"] (17c) 1. The reasonable value of
services; damages awarded in an amount considered
reasonable to compensate a person who has rendered
1362 quantum nunc valent
services in a quasi-contractual relationship. 2. A claim
or right of action for the reasonable value of services
rendered. [Cases: Implied and Constructive Contracts
<>;,30.) 3. At common law, a count in an assumpsit
action to recover payment for services rendered to
another person. Quantum meruit is still used today
as an equitable remedy to provide restitution for unjust
enrichment. It is often pleaded as an alternative claim
in a breach-of-contract case so that the plaintiff can
recover even if the contract is unenforceable. See
implied-In-law contract under CONTRACT.
quantum nunc valent (kwon-tdm ndngk vay-Ient). [Law
Latin] Hist. How much they (the lands) are now worth.
Cf. ANTIQUUS ET NOVUS EXTENT US; QUANTUM VALU
ERUNT TEMPORE PACIS.
quantum valebant (kwon-tdm vd-lee-bant or -bdnt).
[Latin "as much as they were worth") (18c) 1. The rea
sonable value of goods and materials. 2. At common
law, a count in an assumpsit action to recover payment
for goods sold and delivered to another. Quantum
valebant although less common than quantum
meruit is still used today as an equitable remedy to
provide restitution for another's unjust enrichment.
[Cases: Implied and Constructive Contracts (;=,31.]
quantum valuerunt tempore pads (kwon-tam val
yoo-air-dnt tem-pd-ree pay-sis). [Law Latin] Hist.
How much they (the lands) were worth in peacetime.
Cf. ANTIQUUS ET NOVUS EXTENT US; QUANTUM NUNC
VALENT.
quarantina habenda. See DE QUARANTINA HABENDA.
quarantine. (l7c) 1. The isolation ofa person or animal
afflicted with a communicable disease or the preven
tion of such a person or animal from coming into a
particular area, the purpose being to prevent the spread
of disease. Federal, state, and local authorities are
required to cooperate in the enforcement of quarantine
laws. 42 USCA 243(a).
"Power to make quarantine regulations is one of the most
frequent powers conferred on boards of health. Such regu
lations constitute a proper exercise of the police power,
provided they are not in conflict with federal regulations
on the subject or that legislation by Congress is absent,
and that they do not abridge rights protected by the Four
teenth Amendment." 39 Am, Jur. 2d Health 59, at 529-30
(1999).
2. A place where a quarantine is in force. 3. Hist. A
period of40 days, esp. for the isolation and detention
of ships containing persons or animals suspected of
having or carrying a dangerous communicable disease,
in order to prevent the spread ofthe disease.
"Quarantine .... The name is drawn from the fact that the
period was formerly commonly 40 (Ital. quaranta) days. In
1423 Venice established a lazaretto or quarantine station
on an island to check the growth of disease brought in by
ships, In the Sixteenth century quarantine became wide,
spread and there developed the system of bills of health,
certificates that the last port was free from disease; a dean
bill entitled a ship to use the port without subjection to
quarantine," David M. Walker, The Oxford Companion to
Law 1022 (1980). 4. Hist. A widow's privilege to remain in her husband's
house for 40 days after his death while her dower is
being aSSigned . This right was enforced by a writ de
quarantina habenda. See DE QUARANTINA HABENDA.
Also spelled quarentine; quarentene. quarantine,
vb.
"lilt was provided by Magna Charta that the widow should
give nothing for her dower, and that she should tarry in
the chief house of her husband for forty days, (and which
is called the widow's quarantine,) after the death of her
husband, within which time her dower should be assigned
her; and that, in the mean time, she should have reasonable
estovers, or maintenance, out of the estate. The provision
that the widow should pay nothing for the dower, was made
with the generous intention of taking away the uncourtly
and oppressive claim of the feudal lord, for a fine, upon
allowing the widow to be endowed. This declaration of
Magna Charta is, probably, the law in all the United States."
4James Kent, Commentaries on American Law *61 (George
Comstock ed., 11th ed. 1866).
quare (kwair-ee). [Latin) Why; for what reason; on what
account. This was used in various common-law writs,
esp. writs in trespass.
quare clausum fregit (kwair-ee klaw-zdm free-jit).
[Latin] Why he broke the close. Abbr. qu. cl. fr.; q.cj
See TRESPASS QUARE CLAUSUM FREGIT. [Cases: Trespass
(;=10,16.]
quare clausum querentis fregit. See trespass quare
clausum fregit under TRESPASS.
quare ejecit infra terminum (kwair-ee i-jee-sit in-frJ
t;u-mJ-ndm), n. [Law Latin "why he ejected within the
term"] Hist. A writ for a lessee who was prematurely
ejected, when the ejector was not actually in possession
but one claiming under the ejector was.
"For this injury the law has provided him with two
remedies ... the writ of ejectione firmae; ... and the
writ of quare ejecti infra terminum; which lies not against
the wrongdoer or ejector himself. but his feoffee or other
person claiming under him. These are mixed actions,
somewhat between real and personal; for therein are two
things recovered, as well restitution of the term of years,
as damages for the ouster or wrong." 3 William Blackstone,
Commentaries on the Laws of England 199 (1768).
quare executionem non. [Latin] Why execution should
not be issued, -Abbr. QEN.
quare impedit (kwair-ee im-pJ-dit). [Latin "why he
hinders"] Hist. Eccles. law. A writ or action to enforce
a patron's right to present a person to fill a vacant
benefice. -Also termed writ ofquare impedit. See
PRESENTATION (2); ADVOWSON.
"The writ of quare impeditcommands the disturbers, the
bishop, the pseudo-patron, and his clerk, to permit the
plaintiff to present a proper person (without specifying the
particular clerk) to such a vacant church, which pertains to
his patronage; and which the defendants, as he alleges, do
obstruct: and unless they so do, then that they appear in
court to shew the reason why they hinder him." 3 William
Blackstone, Commentaries on the Laws of Eng/and 248
(1768).
quare incumbravit (kwair-ee in-kam-bray-vit), n. [Law
Latin "why he incumbered"] Hist. A writ or action to
compel a bishop to explain why he encumbered the
church when, within six months after the vacation of
a benefice and after a ne admlttas was received, the
1363
bishop conferred the benefice on his clerk while other
clerks were contending for the right of presentation in
a quare impedit action. The writ was abolished by the
Real Property Limitation Act of 1833, ch. 27.
quare intrusit (kwair-ee in-troo-sit), n. [Law Latin "why
he thrust in"] Hist. A writ allowing a lord to recover the
value of a marriage, when the lord offered a suitable
marriage to a ward but the ward rejected it and married
someone else . It was abolished by the Tenures Aboli
tion Act, 1660, ch. 24.
quare non permittit (kwair-ee non paf-mit-it), n. [Law
Latin "why he does not permit"] Rist. A writ for one
who has a right to present to a church, against the pro
prietor.
quarentena terrae (kwahr-en-tee-na ter-ee), n. [Law
Latin "a quantity ofland"] Hist. A furlong.
quarentine. See QUARANTINE.
quare obstruxit (kwair-ee ab-str<Jk-sit), n. [Law Latin
"why he obstructed"] Rist. A writ for one who could
not enjoy a privilege to pass through a neighbor's land
because the neighbor had obstructed the path.
quarrel, n. 1. An altercation or angry dispute; an
exchange of recriminations, taunts, threats, or accu
sations between two persons. -quarrel, vb. 2. Archaic.
A complaint; a legal action.
"Quarrels is derived from querenda, and extends not only
to actions as well real as personal, but also to the causes
of actions and suits; so that by the release of all quarrels,
not only actions depending in suit, but causes of action
and suit also are released; and quarrels, controversies and
debates, are words of one sense, and of one and the same
signification, Coke, lib. 8, fol. 153." Termes de la Ley 330
(1 st Am. ed. 1812).
quarta divi Pii (kwor-td dI-VI pH). [Latin "quarter of
the deified Pius"] Roman law. The quarter portion ofa
testator's estate required to be left to an adrogated child
who had been unjustly emancipated or disinherited.
quarta Falcidiana (kwor-t;> fal-sid-ee-;). [Latin "Falcid
ian fourth"] See FALCIDIAN PORTION,
quarta Trebellianica (kwor-t;> tr;)-bel-ee-an-;>-b).
[Latin "the quarter due under Trebellianus's senatu5
consultum"] Hist. The fourth portion that an heir
could retain from a succession after transferring the
succession as directed by the testator under a fideicom
missum. -Also termed quarta Trebelliana (tr<J-bel-ee
ay-n;> or -an-;. Cf. FALCIDIAN PORTION.
quarter, n. 1. In the law ofwar, the act ofshowing mercy
to a defeated enemy by sparing lives and accepting a
surrender <to give no quarter>. 2. See quarter section
under SECTION.
quarter day. See DAY.
quartering, n. Hist. 1. The diViding of a criminal's body
into quarters after execution, esp. as part of the pun
ishment for a crime such as high treason. See HANGED,
DRAWN, AND QUARTERED. 2. The furnishing of living
quarters to members ofthe military . In the United
States, a homeowner's consent is required before soldiers
may be quartered in a private home during peacetime. quasi committee of the whole
During wartime, soldiers may be quartered in private
homes only as prescribed by law. The Third Amendment
generally protects U.S. citizens from being forced to use
their homes to quarter soldiers. U |
. The Third Amendment
generally protects U.S. citizens from being forced to use
their homes to quarter soldiers. U.S. Const. amend. III.
3. The dividing ofa shield into four parts to show four
different coats ofarms. quarter, vb,
quarterly report. A financial report issued by a cor
poration (and by most mutual funds and investment
managers) every three months.
quartermaster. See TREASURER.
quarter seal. See SEAL.
quarter section. See SECTION.
quarter session. See SESSION (1).
Quarter Sessions Court. See COURT OF GENERAL
QUARTER SESSIONS OF THE PEACE.
quarters ofcoverage. The number ofquarterly payments
made by a person into the social-security fund as a basis
for determining the person's entitlement to benefits.
[Cases: Social Security and Public Welfare 135,
140.5.)
quarto die post (kwor-toh dI-ee pohst), n. [Law Latin
"on the fourth day after"] The defendant's appearance
day, being four days (inclusive) from the return of the
writ.
quash (kwahsh), vb. (13c) 1. To annul or make void; to
terminate <quash an indictment> <quash proceed
ings>. 2. To suppress or subdue; to crush <quash a
rebellion>.
quashal (kwahsh-;>l), n. The act ofquashing something
<quashal ofthe subpoena>. [Cases: Witnesses C-~16.]
quasi (kway-sI or kway-zI also kwah-zee). [Latin "as
if"] (15c) Seemingly but not actually; in some sense or
degree; resembling; nearly.
"QUASI. A Latin word frequently used in the civil law, and
often prefixed to English words. It is not a very definite
word. It marks the resemblance, and supposes a little dif
ference, between two objects, and in legal phraseology
the term is used to indicate that one subject resembles
another, with which it is compared, in certain character
istics, but that there are also intrinsic and material differ
ences between them. It negatives the idea of identity, but
implies a strong superficial analogy, and points out that the
conceptions are sufficiently similar for one to be classed as
the equal of the other." 74 c.J.S. Quasi. at 2 (1951).
quasi-admission. See ADMISSION (1).
quasi-affinity. See AFFINITY.
quasi-autonomous nongovernmental organization.
A semipublic administrative body (esp. in the United
Kingdom) having some members appointed and
financed by, but not answerable to, the government,
such as a tourist authority, a university-grants com
mission, a price-and-wage commission, a prison or
parole board, or a medical-health advisory panel.
This term is more commonly written as an acronym,
quango (kwang-goh), without capital letters.
quasi committee of the whole. See COMMITTEE.
1364 quasi-community property
quasi-community property. See COMMU:-<ITY PROPER
TY.
quasi-contract. See implied-in-law contract under CON
TRACT.
quasi-corporation. See CORPORATION.
quasi-crime. See CRIME.
quasi-criminal proceeding. See PROCEEDING.
quasi-delict. See DELICT.
quasi-deposit. See DEPOSIT (;).
quasi-derelict. See DERELICT.
quasi-deviation. See DEVIATION.
quasi-domicile. See commercial domicile under
DOMICILE.
quasi-dwelling-house. See DWELLING-HOUSE.
quasi-easement. See EASEME:-<T.
quasi-enclave. See ENCLAVE.
quasi-entail. See ENTAIL
quasi-estoppel. See ESTOPPEL.
quasi ex contractu (kway-sI [or -ZI] eks k;:m-trak-t[y]oo).
[Latin] Hist. Arising as iffrom contract.
quasi ex delicto (kway-sI [or -ZI] eks di-lik-toh). [Latin)
Hist. Arising as iffrom delict. See DELICT.
quasi-fee. See FEE (2).
quasifeudum (kway-sI [or -ZI] fyoo-dam). [Law Latin
"as if a (heritable) fee"] Hist. A heritable right, usu. in
money.
quaSi-governmental agency. See AGENCY (3).
quasi-guarantee treaty. See guarantee treaty under
TREATY (1).
quasi-guardian. See GUARDIAN.
quasi-individual. See private corporation under COR
PORATION.
quasi in rem. See IN REM.
quasi-in-rem jurisdiction. See jURISDICTIO:-<.
quasi-insurer. See INSURER.
quasi-judicial, adj. (1820) Of, relating to, or involving
an executive or administrative official's adjudicative
acts. Quasi -judicial acts, which are valid ifthere is no
abuse of discretion, often determine the fundamental
rights ofcitizens. 'Ihey are subject to review by courts.
[Cases: Administrative Law and Procedure C=>108.]
"Quasi-judicial is a term that is ... not easily definable. In
the United States, the phrase often covers judicial decisions
taken by an administrative agency -the test is the nature
of the tribunal rather than what it is doing. In England
quasi-judicial belongs to the administrative category and is
used to cover situations where the administrator is bound
by the law to observe certain forms and possibly hold a
public hearing but where he is a free agent in reaching the
final decision. If the rules are broken, the determination
may be set aside, but it is not sufficient to show that the
administration is biased in favour of a certain policy, or
that the evidence points to a different conclusion:' George
Whitecross Paton, A Textbook ofjurisprudence 336 (G.W.
Paton & David P. Derham eds., 4th ed. 1972). quasi-judicial act. (1840) 1. A judicial act performed
by an official who is not a judge. [Cases: Officers and
Public Employees 110.J 2. An act performed by a
judge who is not acting entirely in a judicial capacity.
See judicial act under ACT.
quasi-judicial duty. See DUTY (1).
quasi-judicial function. See FUNCTION.
quasi-judicial power. See POWER (3).
quasi-legislative, adj. (1934) (Ofan act, function, etc.)
not purely legislative in nature <the administrative
agency's rulemaking, being partly adjudicative, is not
entirely legislative that is, it is quasi-legislative>.
[Cases: Administrative Law and Procedure 106,
381.]
quasi-legislative power. See POWER (3).
quasi-main motion. See incidental main motion under
MOTION (2).
quasi-municipal corporation. See quasi-corporation
under CORPORATION.
quasi-national domicile. See DOMICILE.
quasi-offense. See OFfENSE (2).
quasi-partner. See PARTNER.
quasi-personalty. See PERSONALTY.
quasi-possession. See incorporeal possession under pos-
SESSION.
quasi-posthumous child. See CHILD.
quasi-public corporation. See CORPORATION.
quasi-pupillary substitution. See SUBSTITUTION (5).
quasi-realty. See REALTY.
quasi-rent. (often pl.) Law and economics. Value over and
above one's opportunity cost or next best alternative;
the excess of an asset's value over its salvage value .
In the economic theory of marriage, a quasi-rent is a
spouse's excess value ofthe marriage over the value
of the next best option of not being in that specific
marriage. The next best option may be separation,
divorce, or divorce and remarriage, depending on the
spouse's preferences and opportunities.
quasi-seisin. See SEISIN.
quasi-statute. See STATUTE.
quasi-suspect classification. See SUSPECT CLASSIFICA
TIO:-<.
quasi-tenant. See TENANT.
quasi-tort. See TORT.
quasi traditio (kway-sI [or -ZI) tra-dish-ee-oh). [Latin
"as if transfer" J Roman law. A party's acquisition of a
servitude by using it with the informal permission or
acquiescence of the owner.
"According to the civil law again a servitude that is, a
limited right of user in respect of a thing not one's own,
e.g. a usufruct or a right of way-could only be created by
means of certain definite legal forms. The praetorian law,
on the other hand, allowed a servitude to be created by a
so-called quasi traditio servitutis; that is, it was satisfied
if one party gave the other, without any form, permission
to exercise the right of user in question." Rudolph Sohm.
The Institutes: A Textbook of the History and System of
Roman Private Law 82 Uames Crawford Ledlie trans., 3d
ed.1907).
quasi-trustee. See TRUSTEE (1).
quasi-usufruct. See t:SUFRUCT.
quator tempora jejunii. See EMBER DAYS.
quatuor pedibus currit (kwah-too-or ped-;l-b;ls k"r-it).
[Law Latin] It runs upon four feet; it runs upon all
fours. The term commonly described a precedent
that was extremely close to a pOint being decided. See
0:-< ALL FOURS.
quayage (kee-;lj). A toll or fee charged for lading or
unlading goods on a quay or wharf. -Also written
keyage.
Quayle action. Patents. An office action telling the patent
applicant that the claims are allowable on the merits
but that the form ofthe application still needs to be
amended. Ex parte Quayle, 25 USPQ (BNA) 74, 1935
C.D. 11,453 O.G. 213 (Comm'r Pat. 1935). The appli
cant generally has two months to respond. A Quayle
action ends the prosecution on the merits, and amend
ments that affect the merits will be treated in a manner
similar to amendments after final rejection. [Cases:
Patents C='109.]
quo d.fr. abbr. QUARE CLAUSUM FREGIT.
queen. 1. A woman who possesses, in her own right, the
sovereignty and royal power in a monarchy . Among
the most famous English queens are Queen Mary I,
Queen Elizabeth 1, Queen Victoria, and Queen Eliza
beth II. -Also termed queen regnant. 2. The wife of a
reigning king . She has some royal prerogatives (such
as haVing her own officers), but is in many ways legally
no different from the rest ofthe king's subjects. -Also
termed queen consort. 3. A woman who rules in place of
the actual sovereign (e.g., ifthe sovereign is a child).
Also termed queen regent. 4. DOWAGER-QUEEN.
Queen Anne's Bounty. See FIRST FRUITS.
queen dowager. See DOWAGER-QUEEN.
queen mother. A queen who has children; esp., a dow
ager-queen whose child is the reigning monarch. See
DOWAGER-QUEEN.
Queen's Bench. Historically, the highest common
law court in England, preSided over by the reigning
monarch. -The jurisdiction of this court now lies
with the Queen's Bench Division of the High Court of
Justice; when a king begins to reign, the name automat
ically changes to King's Bench. Abbr. Q.B. -Also
termed Court ofQueen's Bench. Cf. KING'S BENCH.
Queen's Bench Division. The English court, formerly
known as the Queen's Bench or King's Bench, that
presides over tort and contract actions, applications for
judicial review, and some magistrate-court appeals.
Abbr. Q.B.D.
Queen's Counsel. In the United Kingdom, Canada, and
territories that have retained the rank, an elite, senior
level barrister or advocate . Originally, a Queen's Counsel was appointed to serve as counsel to the
reigning monarch. Also termed senior counsel. -
Abbr. Q.c. Cf. KING'S COUNSEL.
Queen's evidence. See EVIDENCE.
Queen's prison. A prison established in 1842 in South
wark, to be used for debtors and criminals confined
under authority ofthe superior courts at Westminster,
the highest court ofadmiralty, and the bankruptcy laws.
It replaced the Queen's Bench Prison, Fleet Prison,
and Marshalsea Prison but was closed in 1862.
Queen's proctor. A solicitor who represents the Crown
in domestic-relations, probate, and admiralty cases .
For example, in a suit for divorce or nullity ofmarriage,
the Queen's proctor might intervene to prove collu
sion between the parties. -Also termed (when a king
reigns) King's proctor.
que est Ie mesme (kyoo ay l~ mem). [Law French] See
QUAE EST EADEM.
quem nuptiae demonstrant (kwem n3p-shee-ee di
mon-strant). [Latin] Roman & Scots law. Whom the
marriage indicates . The phrase refers to the rebuttable
presumption that a husband is the father ofa child that
his wife gives birth to. See presumed father and putative
father under FATHER.
quem redditum reddit (kwem red-;l-t~m red-it), n.
[Law Latin "which return he made"] Hist. A writ for a
grantee ofa rent (not a rent service) to force the tenant
to consent to the transfer.
querela (kw;l-ree-Ia), n. [Law Latin fro Latin queri "to
complain"] Hist. |
querela (kw;l-ree-Ia), n. [Law Latin fro Latin queri "to
complain"] Hist. 1. A complaint founding an action;
the plaintiff's count or declaration. 2. A cause ofaction.
3. An action.
querela coram rege a concilio discutienda et termi
nanda (kw;l-ree-l;l kor-<:lm ree-jee ay bn-sil-ee-oh
dis-k;l-shee-en-d<:l et tar-ma-nan-da), n. [Law Latin "a
dispute to be discussed and resolved by the council in
front of the king"] Hist. A writ ordering someone to
appear before the king to answer to a trespass.
querela inofficiosi testamenti (kw~-ree-l;l in-a-fish-ee
Oh-SI tes-t<l-men-tr). [Latin "complaint ofan undutiful
will"] Roman law. An action allowing a descendant,
ascenda nt, or sibling who was unjustly disinherited or
passed over by a parent's will to have the will set aside
as undutifully made.
"By far the most important is due to the querela inofficiosi
testamenti. By this procedure, though the forms had been
complied with, near relatives with obviOUS claims (the
classes of those entitled having been gradually widened)
might attack the will as contrary to natural duty (inoffi
ciosum) and get it set aside." WW. Buckland, A Manual of
Roman Private Law 199 (2d ed. 1953).
querens (kweer-enz), n. [Latin fr. queri "to complain"]
Hist A plaintiff; the complaining party.
questa (kwes-t~), n. [Law Latin] Hist. A quest; an inquest
or inquiry upon the oaths of an impaneled jury.
question. (14c) 1. A query directed to a witness. -Abbr.
Q. [Cases: Witnesses <>236.]
1366 question-and-answer
categorical question. (I8c) 1. LEADING QUESTION. 2.
(often pl.) One ofa series of questions, on a partic
ular subject, arranged in systematic or consecutive
order.
cross-question. (17c) A question asked of a witness
during cross-examination. -Abbr. XQ. [Cases: Wit
nesses C=>266-284.J
direct question. (17c) A question asked of a witness
during direct examination. [Cases; Witnesses C=>
236.]
hypothetical question. See HYPOTHETICAL QUESTION.
leading question. See LEADING QUESTION.
2. An issue in controversy; a matter to be determined.
certified question. See CERTIFIED QUESTION.
federal question. See FEDERAL QUESTION.
judicial question. See JUDICIAL QUESTION.
mixed question. See MIXED QUESTION.
mixed question oflaw andfact. See MIXED QUESTION
OF tAW AND FACT.
nonjusticiable question. See POUTICAt QUESTION.
political question. See POUTICAL QUESTION.
question offact. See QUESTION OF FACT.
question oflaw. See QUESTION OF LAW.
ultimate question. See ultimate issue under ISSUE (1).
3. Parliamentary law. A motion that the chair has stated
for a meeting's consideration in a form that the meeting
can adopt or reject; a peDding motion. - A question is
technically only a "motion" until the chair states it for
the meeting's consideration. But for most purposes,
the parliamentary terms "motion" and "question" are
interchangeable. See MOTION (2); PUT THE QUESTION;
STATE THE QUESTION.
privileged question. A privileged motion that that the
chair has stated for a meeting's consideration. See
privileged motion under MOTION (2). Cf. question of
privilege.
question ofconsideration. See OBJECTION (2).
question ofinformation. See pOint ofinformation
under POINT.
question oforder. See point oforder under POINT.
question ofprivilege. Any question that concerns the
deliberative assembly's or a member's rights or privi
leges. See PRIVILEGE (6); RAISE AQUESTION OF PRIVI
LEGE. Cf. privileged question.
question-and-answer. (17c) 1. 1he portion of a deposi
tion or trial transcript in which evidence is developed
through a series of questions asked by the lawyer and
answered by the witness. -Abbr. Q-and-A. 2. Ihe
method for developing evidence during a deposition
or at trial, requiring the witness to answer the exam
ining lawyer's questions, without offering unsolicited
information. [Cases: Witnesses C=>236, 247.] 3. Ihe
method ofinstruction used in many law-school classes,
in which the professor asks questions of one or more students and then follows up each answer with another
question. Also termed Socratic method. See SOCRATIC
METHOD; QUESTION-AND-ANSWER METHOD.
question ofconsideration. See OBJECTION (2).
question offact. (17c) 1. An issue that has not been pre
determined and authoritatively answered by the law.
_ An example is whether a particular criminal defen
dant is guilty ofan offense or whether a contractor has
delayed unreasonably in constructing a building. 2. An
issue that does not involve what the law is on a given
point. 3. A disputed issue to be resolved by the jury in a
jury trial or by the judge in a bench trial. -Also termed
fact question. See FACT-FINDER. 4. An issue capable of
being answered by way of demonstration, as opposed
to a question of unverifiable opinion.
question oflaw. (l7c) 1. An issue to be decided by the
judge, concerning the application or interpretation
of the law <a jury cannot decide questions of law,
which are reserved for the court>. 2. A question that
the law itself has authOritatively answered, so that the
court may not answer it as a matter ofdiscretion <the
enforceability ofan arbitration clause is a question of
law>. 3. An issue about what the law is on a particular
point; an issue in which parties argue about, and the
court must decide, what the true rule oflaw is <both
parties appealed on the question oflaw>. 4. An issue
that, although it may turn on a factual point, is reserved
for the court and excluded from the jury; an issue that
is exclUSively within the province ofthe judge and not
the jury <whether a contractual ambiguity exists is a
question oflaw>. Also termed legal question; law
question.
question ofprivilege. See QUESTION (3).
questman. Hist. 1. An instigator ofa lawsuit or pros
ecution. 2. A person who was chosen to inquire into
abuses, esp. those relating to weights and measures.
3. A churchwarden; SlDESMAN. -Also termed quest
monger.
questus est nobis (kwes-tas est noh-bis), n. [Law Latin
"hath complained to us"] Hist. By 1287, a writ against
someone who continued a nuisance that existed before
inheritance or purchase. -The former law provided
recovery only against the party who had first caused
the nuisance.
quia (kwl-a or kwee-d). [Latin] Hist. Because; whereas.
-This term was used to point out the consideration in
a conveyance.
quia alimenta liberis non debentur nisi in subsidium
(kWI-d or kwee-;l al-i-men-ta lib-ar-is non di-ben-t;lr
nI-SI in s;lb-sid-ee-;lm). [Law Latin] Scots law. Because
aliment (alimony) is not due to children except in aid.
A parent was not required to support a child for whom
another source, such as a separate estate, provided.
Quia Emptores (kwl-a or kwee-a emp-tor-eez). [Latin
"since purchasers"] Hist. A statute giving fee-sim
ple tenants (other than those holding directly of the
Crown) the power to alienate their land and bind the
transferee to perform the same services for the lord
1367
as the transferor had been obliged to perform. _ The
statute, enacted in 1290, tended to concentrate feudal
lordships in the Crown by eliminating multiple layers
offealty. 18 Edw., ch. 1. -Also termed Quia Emptores
Terrarum.
"Edward I and his lords wished, for political reasons, to
prevent the growth of subinfeudation, and in 1290 the
Statute Quia Emptores was enacted. It took its name from
the beginning of its preamble 'Since purchasers ... .'''
L.B. Curzon, English Legal History 300 (2d ed, 1979),
quia erronice emanavit (kwH) i-roh-n<l-see em-~-nay
vit). [Law Latin] Hist. Because it issued erroneously.
quia ita lex scripta est (kWI-~ or kwee-<l I-t<l leks skrip-t<l
est). [Latin "because the law is so written"] Hist. Because
that is the text of the statute.
quia succedunt in universum jus quod defunctus habuit
(kWI-<l or kwee-<l s<lk-see-d<lnt in yoo-ni-v;n-s<lm j<lS
kwod di-fangk-t<ls hah-yoo-it). (Latin] Roman &
Scots law. Because they succeed to every right that the
decedent had. _ The phrase appeared in reference to
the position ofheirs-at-law,
quia surrogatum sapit naturam surrogati (kWh) or
kwee-d SJr-d-gay-tJm say-pit nd-t[y]oor-Jm Sdr-d
gay-B). [Law Latin] Hist. Because the substitute partakes
of the character ofthat for which it is substituted.
quia timet (kWI-d tI-m<lt or kwee-<l tim-et). [Latin
"because he fears"] (17c) A legal doctrine that allows
a person to seek equitable relief from future probable
harm to a specific right or interest. [Cases: Equity ~
17.]
"A second class of cases where equity courts act to prevent
injury are known as 'quia timet' cases. The name comes
from the two Latin words, once used when asking relief
in this class of cases; the words mean, 'whereas he fears'
that some injury will be inflicted in the future unless the
court of equity assists him in advance, the plaintiff asks the
assistance of the court to do this, that, or the other thing
with respect to the defendant." Charles Herman Kinnane, A
First Book on AngloAmerican Law648 (2d ed. 1952).
"Quia timet is the right to be protected against anticipated
future injury that cannot be prevented by the present
action. The doctrine of 'quia timet' permits equitable relief
based on a concern over future probable injury to certain
rights or interests, where anticipated future injury cannot
be prevented by a present action at law, such as where
there is a danger that a defense at law might be prejudiced
or lost if not tried immediately." 27A Am. Jur. 2d Equity
93, at 581 (1996),
quia-timet injunction. See INJUNCTION.
quibus deficientibus (kwib-ds di-fish-ee-en-ti-b<Js).
[Latin] His!. Scots law. Who failing. -In a disposition,
this phrase appeared in reference to one or more who
succeeded to an estate and then died. Cf. QUIBUS NON
EXISTENTlBUS.
quibus non existentibus (kwib-as non ek-si-sten-ta-bas).
[Latin] Scots law. Whom failing. _ In a disposition, this
phrase appeared in reference to one or more who never
existed. Cf. QUIBUS OEFICIENTIBUS.
qui ceditforo (kWI see-dit for-oh). [Latin] Hist. One who
stops payment; one who becomes bankrupt.
quick asset. See ASSET. quiet-title action
quick-asset ratio. The ratio between an entity's current
or liquid assets (such as cash and accounts receivable)
and its current liabilities. -Also termed quick ratio;
acid-test ratio.
quick condemnation. See CONDEMNATION (2).
quick dispatch. See DISPATCH.
quickening. The first motion felt in the womb by the
mother of the fetus, usu. occurring near the middle of
the pregnancy.
quickie divorce. See DIVORCE.
quickie strike. See wildcat strike under STRIKE.
quick ratio. See QUICK-ASSET RATIO.
quick-take. See qUick condemnation under CONDEMNA
TION (2).
quid actum est (kwid ak-tdm est). [Latin] Hist. What
has been done.
quidam (kwl-d<lm), n. [Latin] Hist. Somebody. This
term has esp. been used in French law to deSignate a
person whose name is unknown.
quidjuratum est (kwid juu-ray-tdm est). (Law Latin] Hist.
What has been sworn. -Also termed quid juravit.
quidjuravit. See QUID lURATUM EST.
quidjuris? (kwid joor-is). [Latin] Scots law. What is the
law? _ This question was posed in difficult cases.
quid pro quo (kwid proh kwoh), n. [Latin "something for
something"] (16c) An action or thing that is exchanged
for another action or thing ofmore or less equal value;
a substitute <the discount was given as a quid pro quo
for the extra business>. See RECIPROCITY (2). Cf. CON
SIDERATION. [Cases: Contracts ~50.]
quid pro quo sexual harassment. See SEXUAL HARASS
MENT.
quid valet nunc (kwid yay-let n<lngk). [Latin] Hist. What
it is now worth.
quiet, vb. 1. To pacify or silence (a person, etc.). 2. To
make ( |
now worth.
quiet, vb. 1. To pacify or silence (a person, etc.). 2. To
make (a right, pOSition, title, etc.) secure or unassailable
by removing disturbing causes or disputes.
quieta non movere (kwI-ee-td non moh-veer-ee). [Latin]
Not to unsettle things that are established. See STARE
DECISIS.
quietare (kWI-<J-tair-ee), vb. [Law Latin] Hist. To acquit,
discharge, or hold harmless. -This term was used in
conveyances.
quiet diplomacy. See secret diplomacy under DIPLO
MACY.
quiete cIamantia (kwI-ee-tee kl<l-man-shee-<J), n. [Law
Latin] Hist. Quitclaim.
quiete cIamare (kwI-ee-tee kl<l-mair-ee), vb. [Law Latin]
Hist, To quitclaim or renounce all pretensions of right
and title.
quiet enjoyment. See ENJOYMENT.
quiet-title action. See action to quiet title under ACTION.
quietus 1368
quietus (kwI-ee-t;ls), adj. [Law Latin] Quit; acquitted;
discharged, esp. from a debt or obligation, or from
serving as an executor. In England, this term was
formerly used by the Clerk of the Pipe, in a discharge
given to an accountant, usu. concluding with abinde
recess it quietus ("hath gone quit thereof"), called
quietus est. 2. Hist. The removal of a judge from the
bench.
quietus redditus (kwI-ee-t;ls red-;l-t;ls). [Law Latin] See
QUIT RENT.
qui improvide (kWI im-prov-;l-dee). [Latin "who unfore
seeably"] Hist. A supersedeas granted when a writ is
erroneously sued out or wrongfully awarded.
quijustus esse debet (kWI j;)S-t;lS es-ee dee-bet or deb-et).
[Latin] Hist. Who is bound to be just.
Quinquaginta Decisiones. See FIFTY DECISIONS.
quinquepartite (kwin[g]-kw;l-pahr-trt). [Latin "in five
parts"] Hist. Consisting of five parts; divided into five
parts.
quintal (kwin-t;ll). A weight of 100 pounds or 100 kilo
grams. -Also termed kinta/.
quintessential public forum. See traditional public
forum under PUBLIC FORUM.
quinto exactus (kwin-toh eg-zak-t;ls). [Latin "exacted the
fifth time"] Hist. A sheriff's return made after a defen
dant had been called to five county courts but failed to
appear. The county coroners then ordered that the
defendant be deprived of the benefits ofthe law.
"And, if a non est inventus is returned upon all of them,
a writ of exigent or exigi facias may be sued out, which
requires the sheriff to cause the defendant to be pro
claimed, required, or exacted, in five county courts succes
Sively, to render himself; and, if he does, then to take him,
as in a capias: but if he does not appear, and is returned
quinto exactus, he shall then be outlawed by the coroners
of the county." 3 William Blackstone, Commentaries on the
Laws of England 283 (1768).
Quiritarian (kwi-r;l-tair-ee-;ln), adj. Roman law. (In the
context of ownership, with the full right available to
citizens) legal as opposed to equitable; LEGAL (3).
Also termed Quiritary. Cf. BONITARIAN (1).
qui sibi vigilavit (kWI sib-I vij-i-Iay-vit). [Latin] Hist.
Who has looked after his own interest.
quit, adj. (l3c) (Of a debt, obligation, or person) acquit
ted; free; discharged.
quit, vb. (15c) 1. To cease (an act, etc.); to stop <he didn't
quit stalking the victim until the police intervened>.
2. To leave or surrender possession of (property) <the
tenant received a notice to quit but had no intention of
quitting the premises>.
qui tam action (kWI tam or kee-tam). [Latin qui tam pro
domino rege quam pro se ipso in hac parte sequitur "who
as well for the king as for himself sues in this matter"]
(18c) An action brought under a statute that allows a
private person to sue for a penalty, part of which the
government or some specified public institution will
receive. -Often shortened to qui tam (Q.T.). -Also termed popular action. See FALSE CLAIMS ACT. [Cases:
United States C=> 122.]
quitclaim, n. (14c) 1. A formal release of one's claim or
right. 2. See quitclaim deed under DEED.
quitclaim, vb. (14c) 1. To relinquish or release (a claim or
right). 2. To convey all ofone's interest in (property), to
whatever extent one has an interest; to execute a quit
claim deed. [Cases: Deeds C=>25, 121.]
quitclaim deed. See DEED.
quit rent. Hist. A payment to a feudal lord by a free
holder or copyholder, so called because upon payment
the tenant goes "quit and free" (discharged) ofall other
services. -Also spelled quitrent. -Also termed
quietus redditus.
quittance. (l3c) 1. A release or discharge from a debt or
obligation. 2. The document serving as evidence ofsuch
a release. See ACQUITTANCE.
qui utuntur communi jure gentium (kWI yoo-t;)n-t;lr
b-myoo-nr joor-ee jen-shee-;lm). [Law Latin] Hist.
Who use the common law of nations; who conform to
international law.
quoad (kwoh-ad). [Latin] As regards; with regard to
<with a pledge, the debtor continues to possess quoad
the world at large>.
quoad civilia (kwoh-ad s;l-vil-ee-;l). [Latin] Hist. With
regard to civil rights and benefits.
quoad creditorem (kwoh-ad kred-i-tor-;lm). [Latin] Hist.
With regard to the creditor.
quoad debitorem (kwoh-ad deb-i-tor-;lm). [Latin] Hist.
With regard to the debtor.
quoad excessum (kwoh-ad ek-ses-;lm). [Latin] Hist. With
regard to the excess.
"Where a husband makes a postnuptial provision in favour
of his wife commensurate with his circumstances and
natural duty, it is not subject to revocation by him as a
donation. But if the provision be immoderate, it may be
revoked quoad excessum, in so far as it is excessive." John
Trayner, Trayner's Latin Maxims 525-26 (4th ed. 1894).
quoadfiscum (kwoh-ad fis-bm). [Latin] Hist. With
regard to the fisc; as regards the Crown's rights.
quoad hoc (kwoh-ad hok). [Latin] (17c) As to this; with
respect to this; so far as this is concerned. A pro
hibition quoad hoc is a prohibition of certain things
among others, such as matters brought in an ecclesiasti
cal court that should have been brought in a temporal
court.
quoad maritum (kwoh-ad m;l-rI-t;lm). [Latin] Hist.
With regard to the husband.
quoad mobilia (kwoh-ad moh-bil-ee-;l). [Latin] Hist.
With regard to movable property.
quoad non executa (kwoh-ad non ek-s;l-kyoo-t<'l). [Law
Latin] Scots law. With regard to the acts not done . A
second executor may be appointed quoad non executa
upon the death of the first.
quoad potest (kwoh-ad poh-test). [Latin] Hist. Insofar
as one is able.
1369
quoad reliquum (kwoh-ad rel-;)-kw;)m). [Latin) Hist.
With regard to the remainder.
"When a debtor, in an action brought against him by his
creditor, pleads compensation to a certain extent of the
debt sued for, quoad the sum due to him, , . the credi
tor's right of action falls; but quoad reliquum, after making
deduction of the sum pled in compensation, the creditor's
right of action remains." John Trayner, Trayner's Latin
Maxims 526 (4th ed. 1894).
quoad sacra (kwoh-ad say-kr;)). [Latin] As to sacred
things; for religious purposes. -This term often referred
to property that was located so far from the parish to
which it belonged that it was annexed quoad sacra
to another parish, allowing the inhabitants to attend
the closer parish's services. But the land continued to
belong to the original parish for all civil purposes.
quoad ultra (kwoh-ad ill-tra). [Law Latin] Hist. With
regard to the rest . This reference was commonly
used in pleading when a defendant admitted part of
the plaintiff's claim and quoad ultra denied it.
quoad valet seipsum (kwoh-ad yay-let see-ip-sam).
[Latin] Hist. With regard to its real value.
quoad valorem (kwoh-ad va-lor-am). [Latin] Hist. With
regard to the value.
quo animo (kwoh an-;)-moh), adv. [Latin] With what
intention or motive. See ANIMUS.
quocumque modo velit, quocumque modo possit (kwoh
bm-kwee moh-doh vel-it, kwoh-kilm-kwee moh-doh
pahs-it). [Latin] In any way he wishes; in any way he
can.
quodammodo jurisdiction is voluntariae (kwoh-dam
a-doh joor-is-dik-shee-oh-nis vol-an-tair-ee-ee). [Law
Latin] Hist. Belonging in some measure to voluntary
jurisdiction.
quod billa cassetur (kwod bil-a ka-see-t;)r), n. [Latin
"that the bill be quashed"] The common-law form ofa
judgment sustaining a plea in abatement that proceeds
from a bill instead of an original writ. See CASSETUR
BILLA.
quod clerici non eligantur in officio ballivi, etc. (kwod
kler-;)-SI non el-;}-gan-t;}r in <l-fish-ee-oh bal-h-vI), n.
[Law Latin "that clerks are not chosen in the office of a
bailiff, etc."] Hist. A writ exempting a clerk, who was to
be appointed as a bailiff, beadle, reeve, or other officer,
from serving in the office.
quod computet (kwod kom-pya-tet). [Law Latin "that he
account") The first judgment in an action ofaccount,
req~iring the defendant to give an accounting before i
audItors. Also termed judgment quod computet.
"In this action, if the plaintiff succeeds, there are two judg
ments: the first is, that the defendant do account (quod ~
computet) before auditors appointed by the court; and, \
when such account is finished, then the second judgment
is, that he do pay the plaintiff so much as he is found in
arrear:' 3 William Blackstone, Commentaries on the Laws
ofEng/and 163 (1768).
quod cum (kwod k;}m). [Law Latin1For that; whereas.
In common-law pleading, this phrase introduced expla-,
nations for the claims alleged, as in assumpsit actions. quod recuperet
quod ei deforceat (kwod ee-I di-for-see-at), n. [Law
Latin "that he deforces him"] Hist. A writ allowed by
St. Westm. 2, 13 Edw., ch. 4 for the owners ofa particu
lar estate (such as a life estate or fee tail) who had lost
land unwittingly by default in a possessory action. -Up
to that time, only owners in fee simple could recover
property after such a default.
quod erat demonstrandum (kwod er-at dem-<ln-stran
d<)m). See Q.E.D.
quod erat faciendum (kwod er-;)t fay-shee-en-d<)m). See
Q.E.P.
quodfuit concessum (kwod f[y)oo-it bn-ses-<lm). [Law
Latin] Which was granted. -This phrase was used in
old reports to indicate that an argument or point made
by counsel was approved or allowed by the court.
quod jussu (kwod jilS-[yJoo). [Latin "which was done by
order"] Roman law. See actio quod jussu under ACTIO.
quod non fuit negatum (kwod non f[y]oo-it ni-gay
t;)m). [Law Latin] Hist. Which was not denied. -This
phrase usu. signifies that an argument or proposal is
not denied or controverted by the court.
quod nota (kwod noh-t;j). [Latin] Hist. Which note;
which mark . This is a reporter's note directing atten
tion to a point or rule.
quod partes repladtent (kwod pahr-teez ri-plas-i-tant),
n. [Law Latin "that the parties do replead"] Hist. Ihe
judgment ordering repleader when an issue is formed
on so immaterial a point that the court does not know
for whom to give a judgment. The parties must then
reconstruct their pleadings.
quod partitio fiat (kwod pahr-tish-ee-oh fI-at). [Latin
"that partition be made"] Hist. In a partition suit, a |
-tish-ee-oh fI-at). [Latin
"that partition be made"] Hist. In a partition suit, a
judgment granting the partition.
quod permittat (kwod p;)r-mit-it), n. [Latin "that he
permit"] Hist. A writ to prevent an interference in the
exercise ofa right, such as a writ for the heir ofsomeone
disseised of a common of pasture against the heir of
the disseisor.
quod permittat prosternere (kwod par-mit-it proh-star
na-ree), n. [Law Latin "that he permit to abate"] Rist. A
writ to abate a nuisance, similar in nature to a petition
ofright. _ This writ was abolished by the Real Property
Limitation Act of 1833.
"This is a writ commanding the defendant to permit the
plaintiff to abate, quod permittat prosternere. the nuisance
complained of; and, unless he so permits, to summon him
to appear in court, and shew cause why he will not. And
this writ lies as well for the alienee of the party first injured,
as against the alienee of the party first injuring; as hath
been determined by all the judges. And the plaintiff shall
have judgment herein to abate the nuisance, and to recover
damages against the defendant." 3 William Blackstone,
Commentaries on the Laws of Eng/and 222 (1768),
quod recuperet (kwod ri-k!y]oo-par-it), n. [Law Latin
"that he do recover") Hist. The ordinary judgment
for a plaintiff in an action at law . The judgment
might be either final or interlocutory depending on
whether damages had been ascertained at the time the
1370 quod si contingat
judgment was rendered. Also termed judgment quod
recuperet.
quod si contingat (kwod SI kon-ting-at). [Law Latin]
Hist. That if it happen. These words were used to
create a condition in a deed.
quod vide (kwod vI-dee or vee-day). See Q.V.
quod voluit non dixit (kwod vol-yoo-it non dik-sit).
[Latin] Hist. That he did not say what he intended .
This phrase was sometimes used in an argument con
cerning the intention of a lawmaker or testator.
quo jure (kwoh joor-ee). [Law Latin "by what right"]
Hist. A writ for someone holding land to which another
claimed a common, to compel the latter to prove title.
See COMMON (1).
quominus (kwoh-mit-nits or kwoh-mI-nits). [Latin
quo minus "by which the less") Hist. A 14th-century
Exchequer writ alleging that the plaintiff had lent the
defendant a sum of money and that the plaintiff was
unable to repay a debt ofsimilar amount to the Crown
because of the debt to the defendant. In effect, the
plaintiff pleaded the fiction that he was a debtor of
the king who could not repay that debt because of the
defendant's failure to repay him. Also termed writ
ofquominus.
"[W)hat in the beginning had been permitted as a means of
collecting the royal revenue came in the end to be nothing
more or less than permitting any citizen to sue in the
court of the king in order to collect a private debt. The old
pretense that the matter concerned the royal revenue had
to be kept up, and accordingly A had to allege that he was
'less able' to pay the king when his debtors would not pay
him. But everyone, even the court itself, recognized this as
a mere fiction, and that since the suit was in fact between
A and B, B was not permitted to bring in other matters,
such for example as a defense on the ground that A did not
actually owe any taxes to the crown. This fiction came to be
known as the 'quo minus' fiction, because these were the
Latin words used in the litigation, which meant that A was
'less able' to pay the king." Charles Herman Kinnane, A First
Book on AngloAmerican Law 265-66 (2d ed. 1952).
quomodo constat (kwoh-mit-doh kon-stat). [Latin] Hist.
As it appears (from the record, the pleadings, etc.).
quomodo desiit possidere (kwoh-m<i-doh des-ee-it pos
it-dee-ree). [Law Latin] Scots law. In what way he ceased
to possess. In an action to reclaim possession, the
plaintiffwas required to prove previous possession and
quomodo desiit possidere (as by theft, etc.).
quondam (kwon-ddm), adj. Having been formerly;
former <the quondam ruler>.
quondam, n. Archaic. A person who once held an office
or a position, esp. one who was involuntarily removed
or deposed.
quorum, n. (17c) Parliamentary law. The minimum
number of members (usu. a majority of all the members)
who must be present for a deliberative assembly to
legally transact business. PI. quorums. [Cases: Parlia
mentaryLaw
constituency-based quorum. See interest-based
quorum. disappearing quorum. A quorum whose presence may
be more presumptive than actual. See presumption of
a quorum under PRES1JMPTION.
interest-based quorum. A quorum determined accord
ing to the presence or representation of various
constituencies. Also termed constituency-based
quorum.
notice-based quorum. A quorum determined accord
ing to how far in advance of the meeting its call was
circulated. Under a notice-based quorum, the later
the call gets sent out, the larger the quorum grows.
proportional quorum. A quorum calculated with refer
ence to some defined or assumed set, usu. either the
number of seats (including vacancies) or the number
of sitting members (excluding vacancies).
registration-based quorum. A quorum determined
according to how many members have checked in at
the meeting, either at some fixed time or throughout
the time since the meeting began.
quorum bonorum (kwor-itm bit-nor-itm). [Latin] Roman
law. A praetorian interdict by which a person was
allowed to take possession of an estate. See BONORUM
POSSESSIO CONTRA TABULAS.
quorum call. See CALL (1).
quorumless, adj. Lacking a quorum. quorumless
ness, n.
quorum nobis. See CORAM NOBIS.
quorum usus consistit in abusu (kwor-<im yOO-SdS [or
yoo-Z<is] bn-sis-tit in d-byoo-s[y]oo). [Law Latin) Scots
law. The use of which consists in consuming them .
The phrase appeared in reference to fungibles.
quot. Hist. Scots law. Formerly, the 20th part of an estate's
movables, calculated before the decedent's debts are
paid, owed to the bishop ofthe diocese.
quota. (17c) 1. A proportional share assigned to a person
or group; an allotment <the university's admission stan
dards included a quota for in-state residents>. [Cases:
Colleges and Universities 2. A quantitative
restriction; a minimum or maximum number <Faldo
met his sales quota for the month>.
export quota. A restriction on the products that can
be sold to foreign countries . In the United States,
export quotas can be established by the federal gov
ernment for various purposes, including national
defense, price support, and economic stability.
import quota. A restriction on the volume ofa certain
product that can be brought into the country from a
foreign country . In the United States, the President
may establish a quota on an item that poses a threat
of serious injury to a domestic industry.
quot articuli tot libelli (kwot ahr-tik-Yd-h taht li-bel-I).
[Law Latin] Hist. As many points of dispute as libels.
quotation. (l7c) 1. A statement or passage that is exactly
reproduced, attributed, and cited. 2. The amount stated
as a stock's or commodity's current price.
1371
market quotation. The most current price at which
a security or commodity trades. [Cases: Exchanges
13.]
3. A contractor's estimate for a given job. -Sometimes
shortened to quote. [Cases: Contracts ~229(1).1
quot generationes tot gradus (kwot jen-<:l-ray-shee-oh
neez taht gray-d<:ls). [Law Latin] Rist. As many genera- i
Hons as degrees (of relationship) . The phrase appeared
in reference to degrees ofrelationship.
quotient verdict. See VERDICT.
quousque (kwoh-as-kwee). [Latin] Rist. As long as; how
long; until; how far. This term was used in convey
ances as a limitation.
quovis modo (kwoh-vis moh-doh). [Latin] In whatever
manner.
quovis tempore (kwoh-vis tem-p<l-ree). [Latin] Rist. At
whatever time.
quo warranto (kwoh wel-ran-toh also kwoh wahr
an-toh). [Law Latin "by what authority"] (15c) 1. A
common-law writ used to inquire into the author
ity by which a public office is held or a franchise is
claimed. -Also termed writ ofquo warranto. [Cases:
Quo Warranto C=>9.] 2. An action by which the state
seeks to revoke a corporation's charter. -The Federal
Rules of Civil Procedure are applicable to proceedings
for quo warranto "to the extent that the practice in such
proceedings is not set forth in statutes of the United
States and has therefore conformed to the practice
in civil actions." Fed. R. Civ. P. 81(a)(2). [Cases: Quo
Warranto ~15.] q.v.
"There are two modes of proceeding judicially to ascertain
and enforce the forfeiture of a charter for default or abuse
of power. The one is by scire facias: and that process is
proper where there is a legal existing body, capable of
acting, but who have abused their power. The other mode
is by information in the nature of a quo warranto; which
is in form a criminal, and in its nature a civil remedy: and
that proceeding applies where there is a body corporate de
facto only, but who take upon themselves to act, though,
from some defect in their constitution, they cannot legally
exercise their powers. Both these modes of proceeding are
at the instance of and on behalf of the government. The
state must be a party to the prosecution, for the judgment
is that the parties be ousted, and the franchises seised
into the hands of the government." 2 James Kent, Com
mentaries on American Law *313 (George Comstock ed.,
11th ed. 1866).
"Quo warranto means 'by what warrant?' -or authority?
and was a proceeding to inquire whether authority existed
to justify or authorize certain acts of a public character or
interest. Originally the proceeding of quo warranto was a
criminal one instituted by the crown, the purpose of which
was to find out, in the course of a formal inquiry, whether
or not persons or corporations were exercising a privilege
or franchise illegally, or if persons who had no right to do
so were occupying some public office. If it were found that
the person or corporation was in fact illegally interfering
with the prerogative power of the crown, or was in fact
doing some other illegal act, it was ousted from the illegal
practice or office. Accordingly, it can be seen at once that
the proceeding on quo warranto was not one to be used
by private parties in the conduct of ordinary litigation."
Charles Herman Kinnane, A First Book on AngloAmerican
Law 662 (2d ed. 1952).
q.v. abbr. [Latin quod vide] (17c) Which see used in
non-Bluebook citations for cross-referencing. PL qq.v.
R
R. abbr. 1. REX. 2. REGINA. 3. RANGE. 4. Trademarks.
When contained in a circle (and often superscripted),
the symbol indicating that a trademark or servicemark
is registered in the U.S. Patent and Trademark Office.
See registered trademark under TRADEMARK; SERVICE
MARK.
rabbicular trust. See TRUST (3).
rabbinical divorce. See DIVORCE.
rabbi trust. See TRUST (3).
race act. See RACE STATUTE.
race-notice statute. (1968) A recording law providing
that the person who records first, without notice of
prior unrecorded claims, has priority . About half
the states have race-notice statutes. -Also termed
race-notice act; notice-race statute. Cf. RACE STATUTE;
NOTICE STATUTE. [Cases: Vendor and Purchaser C=:'
231(11).]
race ofdiligence. Bankruptcy. A first -come, first-served
disposition of assets. [Cases: Bankruptcy C=:'3442.]
race statute. (1944) A recording act providing that the
person who records first, regardless of notice, has
priority. Only Louisiana and North Carolina have
race statutes. -Also termed pure race statute; race act.
Cf. NOTICE STATUTE; RACE-NOTICE STATUTE. [Cases:
Vendor and Purchaser C=:'231(11).]
race to the courthouse.(l961) 1. Bankruptcy. The com
petition among creditors to make claims on assets,
usu. motivated by the advantages to be gained by those
who act first in preference to other creditors . Chapter
11 of the Bankruptcy Code, as well as various other
provisions, is intended to prevent a race to the court
house and instead to promote equality among credi
tors. [Cases: Bankruptcy C=:'2022, 2391, 2601, 3501.]
2. Civil procedure. The competition between disputing
parties, both ofwhom know that litigation is inevitable,
to prepare and file a lawsuit in a favorable or conve
nient forum before the other side files in one that is less
favor |
to prepare and file a lawsuit in a favorable or conve
nient forum before the other side files in one that is less
favorable or less convenient. A race to the courthouse
may result after one party informally accuses another
ofbreach ofcontract or intellectual-property infringe
ment. When informal negotiations break down, both
want to resolve the matter quickly, usu. to avoid further
business disruption. While the accuser races to sue for
breach of contract or infringement, the accused seeks
a declaratory judgment that no breach or infringement
has occurred. See ANTICIPATORY FILING.
rachat (rah-shah), n. [French] 1. Repurchase; redemp
tion. 2. Ransom.
racheter (rah-sh;l-tay), vb. [French] 1. To repurchase or
buy back. 2. To ransom.
racial discrimination. See DISCRIMINATION. racial profiling. The law-enforcement practice of using
race, national origin, or ethnicity as a salient basis for
suspicion of criminal activity . Originally, the term
referred to the practice of stopping a disproportion
ate number of male African-American drivers on the
assumption that they had a heightened likelihood of
being involved in criminal activity. After the terrorist
attacks ofSeptember 11,2001, the term was frequently
used in reference to searching and interrogating Middle
Eastern men at airports. -Also termed ethnic profil
ing;profiling. Cf. LINGUISTIC PROFILING. [Cases: Arrest
C=:'63.5(4); Civil Rights C=:' 1088(4).]
rack, n. Hist. An instrument oftorture on which a person
was slowly stretched, formerly used to interrogate
someone charged with a crime.
racket, n. (1819) 1. An organized criminal activity; esp.,
the extortion ofmoney by threat or violence. 2. A dis
honest or fraudulent scheme, business, or activity.
[Cases: Racketeer Influenced and Corrupt Organiza
tions C=:'50, 107.]
racketeer, n. (1924) A person who engages in racketeer
ing. [Cases: Racketeer Influenced and Corrupt Orga
nizations C=:'4, 103.] -racketeer, vb.
Racketeer Influenced and Corrupt Organizations Act.
A law designed to attack organized criminal activity
and preserve marketplace integrity by investigating,
controlling, and prosecuting persons who participate
or conspire to participate in racketeering. 18 USCA
1961-1968 . Enacted in 1970, the federal RICO
statute applies only to activity involving interstate
or foreign commerce. Since then, many states have
adopted laws (sometimes called "little RICO" acts)
based on the federal statute. The federal and most
state RICO acts provide for enforcement not only by
criminal prosecution but also by civil lawsuit, in which
the plaintiff can sue for treble damages. -Abbr. RICO.
[Cases: Racketeer Influenced and Corrupt Organiza
tions C=:'2, 101.]
"Before criminal or civil liability can attach under RICO,
it must be shown that the two or more acts of racketeer
ing alleged in the criminal indictment or civil complaint
constitute a pattern of racketeering activity on the part of
the culpable person. The statutory definition of pattern
'requires at least two' predicate acts occurring within
ten years of each other, with one of them occurring after
October 15, 1970. More broadly put, the pattern of rack
eteering activity is a scheme of unlawful conduct with a
nexus to both the culpable person and the enterprise."
David R. McCormack, Racketeering Influenced Corrupt
Organizations 1.04, at 1-20 (1998).
racketeering, n. (1897) 1. A system of organized crime
traditionally involving the extortion of money from
businesses by intimidation, violence, or other illegal
methods. [Cases: Racketeer Influenced and Corrupt
Organizations C=:'4, 103.] 2. A pattern ofillegal activity
1373
(such as bribery, extortion, fraud, and murder) carried
out as part ofan enterprise (such as a crime syndicate)
that is owned or controlled by those engaged in the
illegal activity . The modern sense (sense 2) derives
from the federal RICO statute, which greatly broad
ened the term's original sense to include such activi
ties as mail fraud, securities fraud, and the collection
of illegal gambling debts. See 18 USCA 1951-1960.
[Cases: Racketeer Int1uenced and Corrupt Organiza
tions 102.]
rack rent, n. Rent equal to or nearly equal to the full
annual value ofthe property; excessively or unreason
ably high rent. -rack-rent, vb. rack-renter, n.
radical lawyering. See CAUSE LAWYERING.
raffle, n. A form oflottery in which each participant buys
one or more chances to win a prize. [Cases: Lotteries
raid, n. 1. A sudden attack or invasion by law-enforce
ment officers, usu. to make an arrest or to search for
evidence of a crime. 2. An attempt by a business or
union to lure employees or members from a competi
tor. 3. An attempt by a group of speculators to cause a
sudden fall in stock prices by concerted selling.
raider. See CORPORATE RAIDER.
railroad, vb. 1. To transport by train. 2. To send (a
measure) hastily through a legislature so that there is
little time for consideration and debate. 3. To convict
(a person) hastily, esp. by the use of false charges or
insufficient evidence.
railroad-aid bond. See BOND (3).
railroad company. See railroad corporation under COR
PORATION.
railroad corporation. See CORPORATION.
Railroad Retirement Board. A three-member federal
board that administers the program providing retire
ment, unemployment, and sickness benefits to retired
railroad employees and their families . The Board was
established bv the Railroad Retirement Act of 1934. -
Abbr. RRB. [Cases: Social Security and Public Welfare
(~:)161; Unemployment Compensation (:::>231.]
Railway Labor Act. A 1926 federal law giving transpor
tation employees the right to organize without man
agement interference and establishing guidelines for
the resolution oflabor disputes in the transportation
industry. In 1934, the law was amended to include the
airline industry and to establish the National Media
tion Board. 45 USCA 151-188. See NATIONAL MEDIA
TION BOARD.
rainmaker, n. A lawyer who generates a large amount
of business for a law firm, usu. through wide contacts
within the business community <the law firm fell on
hard times when the rainmaker left and took his clients
with him>. rainmaking, n.
raise, vb. (I2c) 1. To increase in amount or value <the
industry raised prices>. 2. To gather or collect <the
charity raised funds>. 3. To bring up for discussion or
consideration; to introduce or put forward <the party rank
raised the issue in its pleading>. 4. To create or establish
<the person's silence raised an inference ofconsent>. 5.
To increase the stated amount of (a negotiable instru
ment) by fraudulent alteration <the indorser raised the
check>.
raise a question ofprivilege. To offer a question of privi
lege to be considered by the meeting or ruled on by the
chair. See question ofprivilege under QUESTION (3).
raised check. See CHECK.
i raising an instrument. Ihe act of fraudulently altering
a negotiable instrument, esp. a check, to increase
the amount stated as payable. See raised check under
CHECK. [Cases: Banks and Banking ~7'147.]
rake-off, n. (1887) A percentage or share taken, esp. .
! from an illegal transaction; an illegal bribe, payoff, or
skimming of profits. -rake off, vb.
i rally, n. A sharp rise in price or trading (as of stocks)
, after a declining market.
RAM. See reverse annuity mortgage under MORTGAGE.
Rambo lawyer. Slang. A law'yer, esp. a litigator, who uses
aggressive, unethical, or illegal tactics in representing
a client and who lacks courtesy and profeSSionalism
in dealing with other lawyers. Often shortened to
Rambo.
ram raid. Slang. The smashing of a shop window or other
commercial premises with a vehicle in order to break in
and steal cash or goods . The term is most common in
Britain, Ireland, and Australia. -Also termed crash
and-dash. Cf. SMASH-AND-GRAB.
Ramseyer rule. A rule of the U.S. House of Represen
tatives requiring any committee reporting a bill that
amends legislation in force to show in its report what
wording the bill would strike from or insert into the
current law. The rule is named for Representative C.
William Ramseyer (1875-1943) ofIowa, who proposed
it. The analogous rule in the U.S. Senate is the Cordon
rule. See CORDON RULE.
Rand D. abbr. RESEARCH AND DEVELOPMENT.
range, n. Land law. In U.S. government surveys, a strip
of public land running due north to south, consisting
ofa row oftownships, at six-mile intervals. Abbr. R.
[Cases: Public Lands C---=25.]
ranger. 1. Rist. In England, an officer or keeper of a
royal forest, appointed to patrol the forest, drive out
stray animals, and prevent trespassing. 2. An officer or
warden who patrols and supervises the care and pres
ervation of a public park or forest. [Cases: Woods and
Forests (::::7.]3. One of a group ofsoldiers who patrol
a given region; esp., in the U.S. military, a soldier spe
cially trained for surprise raids and dose combat. 4. A
member ofa special state police force.
rank, n. 1. A social or official position or standing, as in
the armed forces <the rank of captain>. [Cases: Armed
Services (~8.1 2. Parliamentary law. A motion's
relative precedence. See PRECEDENCE (3).
1374 rank and file
rank and file. 1. The enlisted soldiers ofan armed force,
as distinguished from the officers. 2. The general mem
bership of a union.
rank-order voting. See preferential voting under
VOTING.
ransom, n. (l3c) 1. Money or other consideration
demanded or paid for the release ofa captured person
or property. See KIDNAPPING. 2. The release of a
captured person or property in exchange for payment
ofa demanded price. [Cases: Kidnapping C-:;;) 19.]
ransom, vb. (l4c) 1. To obtain the release of (a captive)
by paying a demanded price. 2. To release (a captive)
upon receiving such a payment. 3. To hold and demand
payment for the release of(a captive).
ransom bill. Int'/law. A contract by which a vessel
or other property captured at sea during wartime is
ransomed in exchange for release and safe conduct to a
friendly destination. Also termed ransom bond.
ransom factor. Slang. The costliness oflitigation consid
ered as a disincentive to vindicate one's rights in court.
-The term is used mostly in England.
rap, n. (1903) Slang.!. Legal responsibility for a criminal
act <he took the rap for his accomplices>. 2. A criminal
charge <a murder rap>. 3. A criminal conviction; esp., a
prison sentence <a 20-year rap for counterfeiting>.
rape, n. (ISc) 1. At common law, unlawful sexual inter
course committed by a man with a woman not his wife
through force and against her will. -The common
law crime ofrape required at least a slight penetration
of the penis into the vagina. Also at common law, a
husband could not be convicted of raping his wife.
Formerly termed rapture; ravishment. [Cases: RapeC=>
1.) 2. Unlawful sexual activity (esp. intercourse) with
a person (usu. a female) without consent and usu. by
force or threat ofinjury. -Most modern state statutes
have broadened the definition along these lines. Rape
includes unlawful sexual intercourse without consent
after the perpetrator has substantially impaired his
victim by administering, without the victim's knowl
edge or consent, drugs or intoxicants for the purpose
of preventing resistance. It also includes unlawful
sexual intercourse with a person who is unconscious.
Marital status is now usu. irrelevant, and sometimes
so is the victim's gender. Also termed (in some
statutes) unlawful sexual intercourse; sexual assault;
sexual battery; sexual abuse; (in Latin) crimen raptus.
Cf. sexual assault under ASSAVLT; sexual battery under
BATTERY.
"[Another] offence, against the female part also of his maj
esty's subjects, but attended with greater aggravations
than that of forCible marriage, is the crime of rape, raptus
mulierum, or the carnal knowledge of a woman forcibly
and against her will." 4 William Blackstone, Commentaries
on the Laws of England 210 (1769).
"If force is to be declared an element of the crime [of rape]
it becomes necessary to resort to the fiction of 'construe
tive force' to take care of those cases in which no force is
needed beyond what is involved in the very act of inter
course itself. A better analysis is to recognize that the
requirement of force is simply a means of demonstrating that the unlawful violation of the woman was without her
consent and against her will. Therefore, evidence of serious
force need not be shown in many cases. Hence the better
view is that 'force' is not truly speaking an element of the
crime itself, but if great force was not needed to accomplish
the act the necessary |
'force' is not truly speaking an element of the
crime itself, but if great force was not needed to accomplish
the act the necessary lack of consent has been disproved
in other than exceptIOnal situations. The courts today
frequently state the position that a woman's resistance
need not be 'more than her age, strength, the surrounding
facts, and all attending circumstances' make reasonable."
Rollin M. Perkins & Ronald N. Boyce, Criminal Law 211-12
(3d ed. 1982).
acquaintance rape. (1980) Rape committed by someone
known to the victim, esp. by the victim's social com
panion. Cf. date rape; relationship rape.
command rape. Coerced or forced sexual contact
between a superior member and subordinate member
of the armed forces.
date rape. (1975) Rape committed by a person who is
escorting the victim on a social occasion. -Loosely,
date rape also sometimes refers to what is more accu
rately called acquaintance rape or relationship rape.
[Cases: Rape C=>4,]
marital rape. (1936) A husband's sexual intercourse
with his wife by force or without her consent. _
Marital rape was not a crime at common law, but
under modern statutes the marital exemption no
longer applies, and in most jurisdictions a husband
can be prosecuted for raping his wife. -Also termed
spousal rape. [Cases: Rape <:;'::)4.)
prior-relationship rape. See relationship rape.
rape by means offraud. An instance of sexual inter
course that has been induced by fraud. _ Authorities
are divided on the question whether rape can occur
when a woman is induced bv fraudulent statements to
have sexual intercourse. B~t the term rape by means
offraud is not uncommon in legal literature. (Cases:
Justices ofthe Peace C=> 10.]
rape under age. See statutory rape.
relationship rape. (1999) Rape committed by someone
with whom the victim has had a significant associa
tion, often (though not always) of a romantic nature.
-This term encompasses all types of relationships,
including family, friends, dates, cohabitants, and
spouses, in which the victim has had more than brief
or perfunctory interaction with the other person.
Thus it does not extend to those with whom the
victim has had only brief encounters or a nodding
acquaintance. -Also termed prior-relationship rape.
Cf. date rape; acquaintance rape.
spousal rape. See marital rape.
statutory rape. (1873) Unlawful sexual intercourse
with a person under the age of consent (as defined
by statute), regardless of whether it is against that
person's will. -Generally, only an adult may be con
victed ofthis crime. A person under the age of consent
cannot be convicted. Also termed rape under
See age ofconsent under AGE. [Cases: Rape
"Carnal knowledge of a child is frequently declared to
be rape by statute and where this is true the offense is
1375
popularly known as 'statutory rape: although not so des
ignated in the statute." Rollin M. Perkins & Ronald N. Boyce,
Criminal Law 198 (3d ed. 1982).
3. Archaic. The act ofseizing and carrying off a person
(esp. a woman) by force; abduction. 4. The act of plun
dering or despoiling a place. 5. Hist. One of the six
administrative districts into which Sussex, England
was divided, being smaller than a shire and larger than
a hundred.
rape, vb. 1. To commit rape against. 2. Archaic. To
seize and carry off by force; abduct. 3. To plunder or
despoil. rapist, raper, n.
rape shield law. See SHIELD LAW (2).
rape shield statute. See SHIELD LAW (2).
rape uuder age. See statutory rape under RAPE.
rapina (r;:)-pI-n;:). (Latin "robbery, pillage") Roman
& civil law. The forcible taking of another's movable
property with the intent to appropriate it to one's own
use.
"Rapina is the taking away of a thing by violent means. It
gives rise to the praetorian actio vi bonorum raptorum ...."
Rudolph Sohm, The Institutes: A Textbook ofthe History and
System of Roman Private Law 419 Uames Crawford Ledlie
trans., 3d ed. 1907).
rapine (rap-in). 1. Forcible seizure and carrying off
of another's property; pillage or plunder. 2. Archaic.
Rape.
rapport asuccession (ra-por ah sook-ses-syawn), n.
[French "return to succession") Civil law. The restora
tion to an estate of property that an heir received in
advance from the decedent, so that an even distribution
may be made among all the heirs. Cf. HOTCHPOT.
rapporteur (ra-por-tuur or -t3r), n. [French) An official
who makes a report of committee proceedings for a
larger body (esp. a legislature).
rapprochement (ra-prosh-mahn). [French] The estab
lishment or restoration ofcordial relations between two
or more nations. -Also spelled rapprochment.
rap sheet. (1960) Slang. A person's criminal record.
raptu haeredis (rap-t[y]oo h;:)-ree-dis), n. [Latin] Hist.
A writ for taking away an heir held in socage. See
SOCAGE.
rapture. Archaic. 1. Forcible seizure and carrying off
of another person (esp. a woman); abduction. 2. RAPE
(1).
raptu virginum (rap-t[y]oo v3r-ji-n<"lm). See DE RAPTU
VIRGINUM.
rapuit (rap-yoo-it). [Latin) Hist. Ravished. _ The term
was formerly used in indictments for rape. See RAV
ISHMENT.
RAR. abbr. REVENUE AGENT'S REPORT.
rasure (ray-zhar). 1. The scraping or shaving of a docu
ment's surface to remove the writing from it; erasure.
2. Obliteration. rase, vb.
rat. Slang. See STOOL PIGEON (1). rate of return
ratable (ray-t;:)-bal), adj. (l6c) 1. Proportionate <ratable
distribution>. 2. Capable of being estimated, appraised,
or apportioned <because hundreds of angry fans ran
onto the field at the same time, blame for the goalpost's
destruction is not ratable>. 3. Taxable <the government
assessed the widow's ratable estate>. See PRO RATA.
ratchet theory. (1977) Constitutional law. Ihe principle
that Congress, in exercising its enforcement power
under the 14th Amendment, can increase but not dilute
the scope of 14th Amendment guarantees as previously
defined by the Supreme Court. -The thought underly
ing the term is that the enabling clause works in only
one direction, like a ratchet. The theory was stated by
Justice Brennan in Katzenbach v. Morgan, 384 U.S.
641,86 S.Ct. 1717 (1966), but was repudiated by the
Supreme Courtin City ofBoerne v. Flores, 521 U.S. 507,
117 S.Ct.2157 (1997). -Also termed one-way ratchet
theory.
rate, n. (I5c) 1. Proportional or relative value; the pro
portion by which quantity or value is adjusted <rate of
inflation>. 2. An amount paid or charged for a good or
service <the rate for a business-class fare is $550>.
class rate. A single rate applying to the transporta
tion of several articles ofthe same general character.
[Cases: Carriers C=> 189.)
confiscatory rate. A utility rate set so low by the gov
ernment that the utility company cannot realize a
reasonable return on its investment. [Cases: Public
Utilities C;:::, 129.)
freight rate. A rate charged by a carrier for the trans
portation ofcargo, usu. based on the weight, volume,
or quantity of goods but sometimes also on the goods'
value or the mileage. [Cases: Carriers C:)12, 189.]
jOint rate. A single rate charged by two or more carriers
to cover a shipment of goods over a single route.
(Cases: Carriers C=>26, 193.]
union rate. The wage scale set by a union as a minimum
wage to be paid and usu. expressed as an hourly rate
or piecework rate.
3. INTEREST RATE <the rate on the loan increases by
2% after five years>. 4. PREMIUM RATE. 5. English law.
A sum assessed or payable to the local government in
the place where a ratepayer dwells or has property. See
RATEPAYER. rate, vb.
rate base. The investment amount or property value on
which a company, esp. a public utility, is allowed to
earn a particular rate of return. [Cases: Public Utili
ties (;::::> 124.]
rate-base value. See net book cost under COST (1).
rate of interest. See INTEREST RATE.
rate of return. The annual income from an invest
ment, expressed as a percentage ofthe investment. See
RETURN (5).
fair rate ofreturn. The amount of profit that a pUblic
utility is permitted to earn, as determined by a public
utility commission. ICases: Public Utilities Cr-;:, 129.)
1376 ratepayer
internal rate ofreturn. Accounting. A discounted-cash
flow method of evaluating a long-term project, used
to determine the actual return on an investment.
Abbr. IRR.
ratepayer. English law. A person who pays local taxes; a
person liable to pay rates. See RATE (4).
ratification, n. (I5c) 1. Adoption or enactment, esp.
where the act is the last in a series of necessary steps
or consents <The Ratification of the Conventions of
nine States, shall be sufficient for the Establishment of
this Constitution between the States so ratifying the
Same>. In this sense, ratification runs the gamut of
a formal approval of a constitutional amendment to
rank-and-file approval ofa labor union's collective-bar
gaining agreement with management. See ADOPTION
(5). Cf. SANCTION (1). 2. Confirmation and acceptance
of a previous act, thereby making the act valid from
the moment it was done <the board of directors' rati
fication of the president's resolution> . This sense
includes action taken by the legislature to make binding
a treaty negotiated by the executive. [Cases; Estoppel
~90(1).] 3. Contracts. A person's binding adoption
of an act already completed but either not done in a
way that originally produced a legal obligation or
done by a third party having at the time no authority
to act as the person's agent <an adult's ratification of a
contract signed during childhood is necessary to make
the contract enforceable>. [Cases; Contracts C~?97(2);
Infants Principal and Agent ~163-176.]
"Ratification may take place by express words indicating an
intention to confirm the contract. These words may conSist
of a new express promise, or such words as 'I do ratify
and confirm.' A mere acknowledgment that the contract
was in fact made and that it has not been performed is
not sufficient as a ratification. it is sometimes said that
a ratification is ineffective unless made with knowledge
of the possession of a legal power to disaffirm, but the
cases holding the contrary seem to have the better reason."
William R. Anson, Principles ofthe Law ofContract 179-80
(Arthur L. Corbin ed., 3d Am. ed. 1919).
4. Int'llaw. The final establishment of consent by the
parties to a treaty to be bound by it, usu. including the
exchange or deposit of instruments ofratification <the
ratification ofthe nuclear-weapons treaty>. See INSTRU
MENT OF RATIFICATION. Cf. CONFIRMATION. lCases;
Treaties ratify, vb. ratifiable, adj.
ratihabitio (rat-~-hd-bish-ee-oh), n. [Latin ff. ratum
habere "to hold ratified"] Civil law. Ratification or
approval, esp. by a principal of an agent's transaction.
PI. ratihabitiones.
rating. 1. Marine insurance. The determination of a
vessel's state or condition as a factor of insurabil
ity. [Cases: Insurance ~1515, 1540.] 2. INSURANCE
RATING.
ratio. See RATIO DECIDENDI.
ratiocination (rash-ee-os-d-nay-sh~n), n. (16c) The
process or an act of reasoning. -ratiocinative (rash
ee-os-a-nay-tiv), adj. -ratiocinate (rash-ee-os-~
nayt), vb. ratio decidendi (ray-shee-oh des-d-den-dr), n. [Latin
"the reason for deciding"] (I8c) 1. The principle or rule
of law on which a court's decision is founded <many
poorly written judicial opinions do not contain a
dearly ascertainable ratio decidendi>. 2. The rule of
law on which a later court thinks that a previous court
founded its decision; a general rule without which a
case must have been decided otherwise <this opinion
recognizes the Supreme Court's ratio decidendi in the
school desegregation cases>. -Often shortened to
ratio. PI. rationes decidendi (ray-shee-oh-neez des-~
den-dr). Cf. OBITER DICTUM; HOLDING (1).
"The phrase 'the mtio decidendi of a case' is slightly ambig
uous. It may mean either (1) the rule that the judge who
decided the case intended to lay down and apply to the
facts, or (2) the rule that a later court concedes him to have
had the power to lay down." G |
to the
facts, or (2) the rule that a later court concedes him to have
had the power to lay down." Glanville Williams, Learning
the Law 75 (11th ed. 1982).
'There are ... two steps involved in the ascertainment of
the ratio decidendi . ... First, it is necessary to determine
all the facts of the case as seen by the judge; secondly, it
is necessary to discover which of those facts were treated
as material by the judge." Rupert Cross & j.W. Harris, Prec
edent in English Law 65-66 (4th ed. 1991).
ratio legis (ray-shee-oh lee-j~s), n. [Latin] The reason or
purpose for making a law <the Senator argued that the
rapid spread of violent crime was a compelling ratio
legis for the gun-control statute>. Also termed ratio
juris.
rationabiIe estoverium (rash-[ee]-~-nay-b~-lee es-t<)
veer-ee-dm), n. [Law Latin "reasonable necessaries"]
Hist. Alimony.
rationabilibus divisis. See DE RATIONABIUBUS DIVIsrs.
rationabili parte bonorum. See DE RATIONABILI PARTE
BONORUM.
rational-basis test. (1947) Constitutional law. The cri
terion for judicial analysis of a statute that does not
implicate a fundamental right or a suspect or quasi
suspect classification under the Due Process or Equal
Protection Clause, whereby the court will uphold a
law if it bears a reasonable relationship to the attain
ment ofa legitimate governmental objective . Rational
basis is the most deferential of the standards ofreview
that courts use in due-process and equal-protection
analysis. ~Also termed rational-purpose test; ratlonal
relationship test; minimum scrutiny; minimal scrutiny.
Cf. STRICT SCRUTINY; INTERMEDIATE SCRUTINY. [Cases:
Constitutional Law ~3052, 3877.]
rational-choice theory. (1979) The theory that behav
ioral choices, induding the choice to engage in criminal
activity, are based on purposeful decisions that the
potential benefits outweigh the risks. Cf. CONTROL
THEOIc ROUTINE-ACTIVITIES THEORY; STRAIN
THEe".-r.
rational doubt. See REASONABLE DOUBT.
rational interpretation. See logical interpretation under
INTERPRETATION.
rational-purpose test. See RATIONAL-BASIS TEST.
rational-relationship test. See RATIONAL-BASIS TEST.
1377
ratione (ray-shee-oh-nee or rash-ee-oh-nee). [Latin] By
reason; on account.
ratione bonorum (ba-nor-am). By reason ofproperty.
ratione causae (kaw-zee). By reason of the nature of
the case.
ratione contractus (km-trak-tas). By reason of the
contract.
"By entering into a contract, the contracting parties may ...
render themselves amenable to the jurisdiction of ajudge
to whose jurisdiction they would not have been amenable
had the contract not been entered into. Thus, a foreigner,
for the time being domiciled in Scotland, entering into
a contract there with a Scotchman ... renders himself
amenable to the jurisdiction of the Scotch courts in any
question arising out of the contract, for the parties ... are
presumed to have had the law and the courts of Scotland
in view as the forum. . and ajurisdiction thus founded is
said to arise ratione contractus." John Trayner. Trayner's
Latin Maxims 540 (4th ed. 1894).
ratione delicti (di-lik-tI). On account ofthe delict.
ratione domicilii (dom-a-sil-ee-I). By reason of
domicile; on account of residence. The phrase
appeared in reference to the foundation ofjurisdic
tion in many civil cases.
ratione habita (hab-i-t;;). Regard being had (of particu
lar factors or circumstances).
ratione impotentiae (im-pa-ten-shee-ee). By reason
of inability. This was the basis for a property right
in young wild animals that were unable to run or fly.
See FERAE NATURAE.
ratione incidentiae (in-si-den-shee-ee). By reason of
the incident.
ratione loci (loh-sl). By reason ofplace. This was the
basis for a property right in rabbits and hares.
ratione materiae (m;:Heer-ee-ee). By reason of the
matter involved.
ratione originis (a-rij-a-nis). By reason of one's
origin.
ratione personae (par-soh-nee). By reason ofthe person
concerned.
ratione privilegii (priv-a-Iee-jee-I). By reason ofpriv
ilege. This was the basis for a property right in
animals ofwarren. See WARREN.
ratione rei sitae (ree-I sHee). By reason of the situa
tion ofa thing.
ratione soli (soh-h). By reason of the soil. This was
the basis for a property right in bees.
ratione subjectae materiae (sab-jek-tee m;;-teer-ee-ee).
On account of the subject matter.
ratione suspecti judicis (sa-spek-tI joo-di-sis). On
account ofthe judge being suspected. -This referred
to a judge's recusal in a case.
ratione temporis (tem-por-is), adv. By reason of time
or the times. See RATIONE.
ratione tenurae (ten-ya-ree). By reason of tenure. read law
rationes (ray-shee-oh-neez or rash-ee-oh-neez), n. [Latin
"reasons"] Hist. The pleadings in a suit.
ratio pertinens. A pertinent reason (for a question).
ratio scientiae (ray-shee-oh sr-en-shee-ee). [Law Latin]
Hist. 1he ground ofknowledge; esp., the basis for a wit
ness's testimony.
ratio scripta (ray-shee-oh skrip-t;;). [Latin] Roman law.
\-Vritten reason.
rattening (rat-ning). Hist. The practice of taking away
tools, destroying machinery, and the like in an attempt
either to compel a worker to join a union or to enforce
a company's compliance with union rules. Rattening
was formerly a common labor-union tactic in England,
and it was a criminal offense.
ravishment, n. Archaic. 1. Forcible seizure and carrying
offofanother person (esp. a woman); abduction. 2. RAPE
(1). In this sense the term is Widely considered inap
propriate for modern usage. given its romantic C011110
tations (in other contexts) ofecstasy and delight. In the
Restatement (First) ofTorts 65a, the word was defined
as including not just rape but any carnal intercourse of
a criminal nature. See RAPUIT. ravish, vb.
RBS. abbr. RURAL BUSINESS-COOPERATIVE SERVICE.
RCE. abbr. REQUEST FOR CONTINUED EXAMINATION.
rDNA. abbr. RECOMBINANT DNA TECHNOLOGY.
re (ree or ray), prep. (18c) Regarding; in the matter of.
In the title ofa case, it usu. signifies a legal proceeding
regarding the disposition ofreal or personal property
or a change in legal status. In American caselaw, the
abbreviation commonly used is in re <In re Estate of
Kirk>. In business correspondence, the term signals the
subject matter <re: Board Meeting>. See IN RE.
REA. abbr. RURAL ELECTRIFICATION ADMINISTRA
TION.
rea (ree-a), n. [Latin) In civil and canon law, a defendant.
Pi. reae.
reacquired stock. See treasury stock under STOCK.
reading. Parliamentary law. The recitation aloud of a
bill or other main motion, sometimes by title only, usu.
in a series of three such recitations necessary before a
legislative body can pass a bill. See reading clerk under
CLERK (7).
reading clerk. See CLERK (7).
read into, vb. See READ ON.
readjustment, n. (18c) Voluntary reorganization of a
financially troubled corporation by the shareholders
themselves, without a trustee's or a receiver's interven
tion. -readjust, vb.
read law. 1. To prepare for a legal career by working in
a lawyer's office as a clerk while studying legal texts
on one's own time. -Most American lawyers in the
18th and 19th centuries obtained their legal educations
solely by reading law. Today. few American states allow
applicants to take the bar exam without attending law
school. 2. To study law at a law school.
1378 read on
read on, vb. Patents. 1. (Of a patent claim) to contain
all the same features of (a prior-art reference). -Ifthe
patent claim reads on the prior art, the claim has been
anticipated and the patent will be denied. See ANTICI
PATED. [Cases: Patents 072(1).] 2. (Ofa patent claim)
to describe an infringing product or process. -If all the
patent claims read on the other product, that product
infringes the patent. [Cases: Patents ~226.6.1
ready, willing, and able. (1829) (Of a prospective buyer)
legally and finanCially capable of consummating a
purchase. [Cases: Brokers 0S4; Specific Performance
087.]
"'READY, WILLING, AND ABLE' -A phrase referring to a pro
spective buyer of property who is legally capable and
financially able to consummate the deal. Traditionally,
the broker earns a commission upon procuring a 'ready,
willing, and able' buyer on the listing terms, regardless
of whether the seller actually goes through with the sale.
The 'ready and willing' means, generally, that the broker
must in fact produce a buyer who indicates that he or she
is prepared to accept the terms of the seller and is willing
to enter into a contract for sale. The buyer is not 'ready
and willing' when he or she enters into an option with the
seller, but the buyer is 'ready and willing' when the option
is exercised. The buyer is not 'ready and willing' when the
offer is subject to any new conditions, such as making the
closing date an unreasonably long period, for example,
one year from the offer.... The 'able' requires that the
buyer be financially able to comply with the terms of the
sale in both initial cash payment and any necessary financ
ing. The broker is not required to show that the purchaser
has actual cash or assets to payoff the mortgage. But the
broker is required to reveal the identity of the buyer if
requested by the seller." John W. Reilly, The Language of
Real Estate 326 (4th ed. 1993).
reaffirmation, n. (1857) 1. Approval of something pre
viously decided or agreed to; renewal <the Supreme
Court's reaffirmation ofthis principle is long overdue>.
2. Bankruptcy. An agreement between the debtor and a
creditor by which the debtor promises to repay a prepe
tition debt that would otherwise be discharged at the
conclusion of the bankruptcy <the debtor negotiated
a reaffirmation so that he could keep the collateral>.
There are two main requirements for a reaffirmation to
be enforceable: (I) the agreement must contain a clear
and conspicuous provision stating that the debtor may
rescind the reaffirmation agreement anytime before
discharge or within 60 days after the agreement is filed
with the court; and (2) for a debtor who is not repre
sented by counsel, the court must determine that the
reaffirmation is in the debtor's best interest and does
not impose an undue hardship. 11 USCA 524(c).
Also termed (in sense 2) reaffirmation agreement.
[Cases: BankruptcyC=3415.]- reaffirm, vb.
reaffirmation hearing. Bankruptcy. A hearing at which
the debtor and a creditor present a reaffirmation of a
dischargeable debt for the court's approval. -The reaf
firmation hearing is usu. held simultaneously with the
discharge hearing. See DISCHARGE HEARING. [Cases:
Bankruptcy C--='3417.J
real, adj. (ISc) 1. Of or relating to things (such as lands
and buildings) that are fixed or immovable <real
property> <a real action>. 2. Civil law. Ot~ relating to, or attached to a thing (whether movable or immovable)
rather than a person <a real right>. 3. Actual; genuine;
true <real authority>. 4. (Of money, income, etc.)
measured in terms of purchasing power rather than
nominal value; adjusted for inflation <real wages>.
real account. See ACCOUNT.
real action. See ACTION (4).
real asset. See ASSET.
real authority. See actual authority under AUTHORITY
(1).
real burden. See BURDEN (4).
real chattel. See chattel real under CHATTEL.
real contract. See CONTRACT.
real covenant. See covenant running with the land under
COVE~ANT (4).
real damages. See actual damages under DAMAGES.
real defense. See DEFENSE (4).
real earnings. See EARNI~GS.
real estate. See real property under PROPERTY,
real-estate agent. See AGENT (2).
real-estate broker. See BROKER.
real-estate investment trust. A company that invests in
and manages a portfolio of real estate, with the majority
of the trust's income distributed to its shareholders.
Such a trust may qualify for special income-tax treat
ment if it distributes 95% of its income to its share
holders. -Abbr. REIT. See investment company under
COMPANY. Cf. REAL-ESTATE MORTGAGE TRUST. [Cases:
Internal Revenue C~3997 |
Y. Cf. REAL-ESTATE MORTGAGE TRUST. [Cases:
Internal Revenue C~3997.]
umbrella-partnership real-estate investment trust. A
REIT that controls and holds most of its properties
through an umbrella limited partnership, as a result
of which the trust can acquire properties in exchange
for the limited-partnership interests in the umbrella
while triggering no immediate tax obligations for
certain sellers. -This is a structure that many REITs
now use. Abbr. UPREIT. [Cases: Internal Revenue
C--:>3997.]
reaI-estate-mortgage investment conduit. An entity that
holds a fixed pool of mortgages or mortgage-backed
securities (such as collateralized mortgage obligations),
issues interests in itself to investors, and receives favor
able tax treatment by passing its income through to
those investors. -Real-estate-mortgage investment
conduits were created bv the Tax Reform Act of 1986.
They can be organized ~s corporations, partnerships,
or trusts. To qualify for tax-exempt status, the entity
must meet two requirements: (1) almost all the entity's
assets must be real-estate mortgages (though a few
other cash-flow-maintaining assets are allowed); and
(2) all interests in the entity must be classified as either
regular interests (which entitle the holder to principal
and interest income through debt or equity) or residual
interests (which provide contingent income). -Abbr.
REMIC.
1379
real-estate mortgage trust. A real-estate investment
trust that buys and sells the mortgages on real property
rather than the real property itself. Abbr. REMT. Cf.
REAL-ESTATE INVESTMENT TRUST.
real estate owned. Property acquired by a lender, usu.
through foreclosure, in satisfaction ofa debt. -Abbr.
REO. [Cases: Mortgages (:;:;>534.]
Real Estate Settlement Procedures Act. A federal law
that requires lenders to proVide home buyers with infor
mation about known or estimated settlement costs. 12
USCA 2601-2617. -Abbr. RESPA. See REGULATION
x. [Cases: Consumer Credit (:;:;>30.]
real-estate syndicate. A group of investors who pool
their money to buy and sell real property . Most real
estate syndicates operate as limited partnerships or
real-estate investment trusts.
real evidence. See EVIDENCE.
realignment (ree-a-hn-m;mt), n. The process by which
a court, usu. in determining diversity jurisdiction,
identifies and rearranges the parties as plaintiffs and
defendants according to their ultimate interests. [Cases:
Federal Civil Procedure 101; Federal Courts
304.] realign, vb.
real income. See INCOME.
realization, n. (18c) L Conversion of noncash assets
into cash assets. 2. Tax. An event or transaction, such
as the sale or exchange of property, that substantially
changes a taxpayer's economic position so that income
tax may be imposed or a tax allowance granted. Cf.
RECOGNITION (4). [Cases: Internal Revenue
3178; Taxation (:;:;>3466.] -realize, vb.
realized gain. See GAIN (3).
realized loss. See LOSS (2).
real law. The law ofreal property; real-estate law.
real money. See MONEY.
real party in interest. See PARTY (2).
real-party-in-interest rule. The principle that the person
entitled by law to enforce a substantive right should be
the one under whose name the action is prosecuted.
Fed. R. Civ. P. 17(a). [Cases: Federal Civil Procedure
(:;:;> 131; Parties (:;:;>6.]
real property. See PROPERTY.
real rate. See INTEREST RATE.
real right. See RIGHT.
real security. See SECURITY.
real servitude. See servitude appurtenant under SERVI
TUDE (2).
real statute. See STATUTE.
real subrogation. See SUBROGATION.
real suretyship. See SURETYSHIP.
real things. (l8c) Property that is fixed and immovable,
such as lands and buildings; real property. Also
termed things real. See real property under PROPERTY. reasonable-apprehension test
Cf. chattel real under CHATTEL. [Cases: Property
4.]
realtor (reel-tdr). 1. (cap.) Servicemark. A real-estate
agent who is a member of the National Association of
Realtors. [Cases: Brokers (:;:;>3.] 2. Loosely, any real
estate agent or broker. [Cases: Brokers (:;:;>2.]
real treaty. See TREATY (1).
realty. Land and anything growing on, attached to, or
erected on it, that cannot be removed without injury
to the land. -Also termed real property.
quasi-realty. Hist.Things that the law treats as fixed
to realty, but are themselves movable, such as title
deeds.
realty trust. See nominee trust (2) under TRUST.
real wages. See WAGE.
real warrandice. See WARRANDICE.
real wrong. See WRONG.
reapportionment, n. (1874) Realignment ofa legislative
district's boundaries to reflect changes in population
and ensure proportionate representation by elected offi
cials. See u.s. Const. art. I, 2, cl. 3. -Also termed
redistricting. Cf. GERRYMANDERING. [Cases: Elections
G':~~ 12(6); States reapportion, vb.
reargument, n. (I8c) The presentation of additional
arguments, which often suggest that a controlling
legal principle has been overlooked, to a court (usu.
an appellate court) that has already heard initial argu
ments. Cf. REHEARING. [Cases: Appeal and Error G.~
828; Federal Civil Procedure G::J928; Federal Courts
(:;:;>'744; Motions reargue, vb.
rearrest. See ARREST.
reasonable, adj. (14c) 1. Fair, proper, or moderate under
the circumstances <reasonable pay>. 2. According to
reason <your argument is reasonable but not convinc
ing>.
"It is extremely difficult to state what lawyers mean when
they speak of 'reasonableness.' In part the expression
refers to ordinary ideas of natural law or natural justice. in
part to logical thought. working upon the basiS of the rules
of law." John Salmond. Jurisprudence 183 n.(u) (Glanville L.
Williams ed., 10th ed. 1947).
"In one sense the word [reasonable) describes the proper
use of the reasoning power, and in another it is no more
than a word of assessment. Reasoning does not help
much in fixing a reasonable or fair price or a reasonable
or moderate length of time, or in estimating the size of a
doubt. Lawyers say a reasonable doubt, meaning a sub
stantial one; the Court of Appeal has frowned upon the
description of a reasonable doubt as one for which reasons
could be given." Patrick Devlin, The Judge 134 (1979).
3. (Of a person) having the faculty of reason <a rea
sonable person would have looked both ways before
crossing the street>. 4. Archaic. Human <criminal
homicide is traditionally called the unlawful killing of
a "reasonable person">. -reasonableness, n.
reasonable accommodation. See ACCOMMODATION.
reasonable-apprehension test. Patents. A judicial
analysiS to decide whether there is a justiciable
1380 reasonable care
controversy between a patentee and an alleged infringer.
The test has two elements: (1) the patent owner must
make an explicit threat or take other action that makes
another person reasonably believe that an infringement
suit is likely, and (2) the other person must be engaged
in an activity that could constitute infringement or
must be intentionally preparing to engage in possibly
infringing activity. If either element is prospective or
uncertain, the court will not consider the complaint.
[Cases: Declaratory Judgment C:=>234.j
reasonable care. See CARE.
reasonable cause. See PROBABLE CAUSE (1).
reasonable-consumer test. The prevailing test for deter
mining whether advertisement is deceptive, deter
mined by asking whether the reasonable consumer
would believe that the claim is true. Cf. FOOL'S TEST.
[Cases: Antitrust and Trade Regulation
reasonable-development covenant. Oil & gas. The
implied promise in an oil-and-gas lease that once pro
duction is obtained the lessee will continue to develop
the property as would a reasonably prudent operator,
as opposed to merely holding the lease by the produc
tion already obtained. See FURTHER-EXPLORATION
COVENANT. [Cases: Mines and Minerals (;=)78.1(4),
78.1(8).]
reasonable deviation. See DEVIATION.
reasonable diligence. See DILIGENCE.
reasonable doubt. (l8c) The doubt that prevents one
from being firmly convinced ofa defendant's guilt, or
the belief that there is a real possibility that a defen
dant is not guilty. _ "Beyond a reasonable doubt" is
the standard used by a jury to determine whether a
criminal defendant is guilty. See Model Penal Code
1.12. In deciding whether guilt has been proved
beyond a reasonable doubt, the jury must begin with
the presumption that the defendant is innocent. -Also
termed rational doubt. See BURDEN OF PERSUASIOK. Cf.
clear and convincing evidence under EVIDENCE; PRE
PONDERANCE OF THE EVIDENcE.[Cases: Constitutional
Law C:=>266(7); Criminal Law \.;:;:,561.]
"Reasonable doubt ... is a term often used. probably pretty
well understood, but not easily defined. It is not a mere
possible doubt; because every thing relating to human
affairs, and depending on moral evidence, is open to some
possible or imaginary doubt. It is that state of the case,
which. after the entire comparison and consideration of all
the evidence, leaves the minds of jurors in that condition
that they cannot say they feel an abiding conviction. to a
moral certainty, of the truth of the charge." Commonwealth
v. Webster, 59 Mass. (5 Cush.) 295, 320 (1850) (per Lemuel
Shaw,J.).
''The gravamen of lord Goddard's objection to the formula
of 'reasonable doubt' seems to have been the muddle occa
sionally created by an impromptu effort to explain to a
jury the meaning of this phrase. A simple solution would
be to refrain from explaining it, relying on the common
sense of the jury. As Barton J. said in an Australian case,
'one embarks on a dangerous sea if he attempts to define
with precision a term which is in ordinary use with refer
ence to this subject-matter, and which is usually stated to
ajury without embellishment as a well understood expres
sion.' However, some modes of embellishment seem to be unobjectionable. There is probably no harm in telling
the jury. as some judges do, that a reasonable doubt is
one for which a sensible reason can be supplied." Glanville
Williams. Criminal Law 873 (2d ed. 1961).
reasonable excuse. See PROBABLE CAUSE.
reasonable-expectations doctrine. The prinCiple that an
ambiguous or inconspicuous term in a contract should
be interpreted to favor the weaker party's objectively
reasonable expectations from the contract, even though
the explicit language ofthe terms may not support those
expectations. -This principle is most often applied
when interpreting insurance policies, consumer con
tracts, and other types of adhesion contracts. Also
written reasonable-expectation doctrine. [Cases: Insur
ance 1817.]
reasonable force. See FORCE.
reasonable grounds. See PROBABLE CAUSE (1).
reasonable-inference rule. (1945) An evidentiary prin
ciple providing that a jury, in deciding a case, may
properly consider any reasonable inference drawn from
the evidence presented at trial. Cf. PYRAMIDING INFER
ENCES, RULE AGAINST. [Cases: Criminal Law C:=>559;
Evidence C:=>595.]
reasonable man. See REASONABLE PERSON.
reasonable medical probability. (1949) In proving the
cause ofan injury, a standard requiring a showing that
the injury was more likely than not caused by a par
ticular stimulus, based on the general consensus of rec
ognized medical thought. Also termed reasonable
medical certainty. [Cases: Damages C;)185(1); Evidence
(;::J547.5.]
reasonable notice. See NOTICE.
reasonable person. l. A hypothetical person used as
a legal standard, esp. to determine whether someone
acted with negligence; specif., a person who exercises
the degree ofattention, knowledge, intelligence, and
judgment that society requires of its members for the
protection of their own and ofothers' interests . The
reasonable person acts senSibly, does things without
serious delay, and takes proper but not excessive pre
cautions. See Restatement (Second) of Torts 283(b).
Also termed reasonable mall; prudent person; ordinarily
prudent person; reasonably prudent person; highly
prudent person, See reasonable care under CARE. [Cases:
Negligence
"The reasonable man connotes a person whose notions
and standards of behaviour and responsibility correspond
with those generally obtained among ordinary people in
our society at the present time, who seldom allows his
emotions to overbear his reason and whose habits are
moderate and whose disposition is equable. He is not
necessarily the same as the average man a term which
implies an amalgamation of counter-balancing extremes."
R. F.V. Heuston, Salmond on the Law of Torts 56 (17th ed.
1977).
2. Archaic. A human being.
"In the antique phraseology which has been repeated since
the time of lord Coke the actus reus |
. A human being.
"In the antique phraseology which has been repeated since
the time of lord Coke the actus reus of murder (and there
fore of any criminal homicide) was declared to be unlaw
fully killing a reasonable person who is in being and under
1381
the King's peace, the death following within a year and a
day. In this sentence the word 'reasonable' does not mean
'sane', but 'human'. In criminal law, a lunatic is a persona
for all purposes of protection, even when not so treated
for the assessment of liability." j.W. Cecil Turner, Kenny's
Outlines ofCr;minal Law 102 (16th ed. 1952).
reasonable provocation. See adequate provocation under
PROVOCATION.
reasonable royalty. See ROYALTY (1).
reasonable skill. See SKILL.
reasonable support. 1. See SUPPORT (1). 2. See SUPPORT
(2).
reasonable suspicion. See SUSPICION.
reasonable time. (1951) 1. Contracts. The time needed to
do what a contract requires to be done, based on subjec
tive circumstances . If the contracting parties do not
fix a time for performance, the law will usu. presume
a reasonable time. [Cases: Contracts ~-::>212.1 2. Com
merciallaw. The time during which the DCC permits a
party to accept an offer, inspect goods, substitute con
forming goods for rejected goods, and the like. [Cases:
Sales (;::::>22(5), 23(5), 166(1), 168(2), 179(6).]
reasonable use. See USE (1).
reasonable-use theory. (1933) Property. The principle
that owners ofriparian land may make reasonable use
oftheir water ifthis use does not affect the water avail
able to lower riparian owners. [Cases: Waters and Water
Courses (:::)41.J
reasonably believe. See BELIEVE.
reasonably-prudent-operator standard. Oil &gas. The
test generally applied to determine a lessee's compli
ance with implied lease covenants by considering what
a reasonable, competent operator in the oil-and-gas
industry would do under the circumstances, acting in
good faith and with economic motivation, and taking
into account the lessor's interests as well as that of the
operator. -Also termed reasonable-prudent-operator
standard; prudent-operator standard. [Cases: Mines
and Minerals <8=)78.1(2).J
reasonably prudent person. See REASONABLE PERSON.
reasonably suspect. See SUSPECT.
reasons for allowance. See RULE 109 STATEMENT.
reason to know. Information from which a person of
ordinary intelligence -or ofthe superior intelligence
that the person may have -would infer that the fact
in question exists or that there is a substantial enough
chance ofits existence that, ifthe person exercises rea
sonable care, the person can assume the fact exists.
reassurance. See REINSURANCE.
rebate, n. A return of part of a payment, serving as a
discount or reduction. rebate, vb.
rebellion. 1. Open, organized, and armed resistance to
an established government or ruler. 2. Open resistance
or opposition to an authority or tradition. 3. Hist. Dis
obedience ofa legal command or summons. recall election
rebus integris (ree-b~s in-t~-gris). [Latin] Scots law.
Matters being complete; no performance haVing taken
place. For example, a contract could be rescinded if
nothing had been done toward performance.
rebus ipsis etfactis (ree-b~s ip-sis et fak-tis). [Latin] Scots
law. By the facts and circumstances themselves . A
marital contract was sometimes inferred rebus ipsis et
factis.
rebus sic stantibus (ree-b~s sik stan-ti-b;}s). [Latin
"matters so standing"] Civil law & Int'llaw. The prin
ciple that all agreements are concluded with the implied
condition that they are binding only as long as there are
no major changes in the circumstances. See CLAUSA
REBUS SIC STANTIBUS. [Cases: Treaties (;::::>5.)
rebut, vb. (14c) To refute, oppose, or counteract (some
thing) by evidence, argument, or contrary proof <rebut
the opponent's expert testimony> <rebut a presump
tion of negligence>.
rebuttable presumption. See PRESUMPTION.
rebuttal, n. (1830) 1. In-court contradiction of an
adverse party's evidence. 2. lhe time given to a party
to present contradictory evidence or arguments. Cf.
CASE-IN-CHIEF. [Cases: Criminal Law (;::::>683; Federal
Civil Procedure (;::::>2015; Trial (;::::>62.)
"Rebuttal is the hardest argument to make in any court. In
the Supreme Court and in most courts of appeals, petitioner
has to work hard to save any time at all for rebuttal. In the
Supreme Court, rebuttal time comes directly out of the
30 minutes allotted to petitioner's side and, if the justices
keep asking questions that use up petitioner's time, the
case is submitted without rebuttal. Many courts of appeals
permit counsel to reserve time for rebuttal, either through
the clerk in advance of the argument or at the beginning of
the argument itself. It is the rare court of appeals panel that
does not permit counsel at least one minute of rebuttal,
even when counsel's time has expired." David C. Frederick,
Supreme Court and Appellate Advocacy 7.3, at 178 (2003)
(dealing only with oral rebuttals on appeal).
3. The arguments contained in a reply brief. See reply
brief under BRIEF. [Cases: Appeal and Error C='762;
Criminal Law C-=> 1130(6); Federal Courts (~:::::>714.]
rebuttal evidence. See EVIDENCE.
rebuttal witness. See WITNESS.
rebutter. (16c) 1. Common-law pleading. The defendant's
answer to a plaintiff's surrejOinder; the pleading that
followed the rejOinder and surrejoinder, and that might
in turn be answered by the surrebutter. [Cases: Pleading
185.)2. One who rebuts.
rebutting evidence. See rebuttal evidence under
EVIDENCE.
recall, n. (1902) 1. Removal ofa public official from office
by popular vote. [Cases: Officers and Public Employees
(;:'.;::)70.7.J 2. A manufacturer's request to consumers for
the return of defective products for repair or replace
ment. [Cases: Insurance (;::::>2278(24); Products Liabil
ity~-:>144.J 3. Revocation ofa judgment for factual or
legal reasons. recall, vb.
recall election. See ELECTION (3).
recall exclusion. See sistership exclusion under EXCLU
SION (3).
recall ofmandate. The extraordinary action by an appel
late court ofwithdrawing the order it issued to the trial
court upon deciding an appeal, usu. after the deadline
has passed for the losing party to seek a rehearing. _
Because this action can interfere with trial-court pro
ceedings on remand, and also because it clouds the
waters that repose (the finality of a judgment) is meant
to clear, courts are reluctant to use the power. But they
will use it to correct clerical errors or to remedy a fraud
on the court during the appeal. It has also been used
when the original mandate would result in a grave
injustice. See MANDATE (1). [Cases: Appeal and Error
C::J 1218; Criminal Law (;:=> 1193; Federal Courts
956.1.]
recant (ri-kant), vb. (l6c) 1. To withdraw or renounce
(prior statements or testimony) formally or publicly
<the prosecution hoped the eyewitness wouldn't
recant her corroborating testimony on the stand>. 2.
To withdraw or renounce prior statements or testimony
formally or publicly <under grueling cross-examina
tion, the witness recanted>. recantation, n.
recapitalization, n. An adjustment or recasting of a
corporation's capital structure -that is, its stocks,
bonds, or other securities -through amendment of
the articles of incorporation or merger with a parent
or subsidiary. -An example of recapitalization is the
elimination of unpaid preferred dividends and the
creation of a new class of senior securities. Ct: REOR
GANIZA nON (2). [Cases: Corporations <:::::>575,576.]
recapitalize, vb.
leveraged recapitalization. Recapitalization whereby
the corporation substitutes debt for equity in the
capital structure, usu. to make the corporation less
attractive as a target for a hostile takeover. -Also
termed leveraging up.
recaption. (17c) 1. At common law, lawful seizure of
another's property for a second time to secure the per
formance of a duty; a second distress. See DISTRESS. 2.
Peaceful retaking, without legal process, of one's own
property that has been wrongfully taken.
recapture, n. 1. 'The act or an instance of retaking or
reacquiring; recovery. 2. The lawful taking by the gov
ernment of earnings or profits exceeding a specified
amount; esp., the government's recovery of a tax benefit
(such as a deduction or credit) by taxing income or
property that no longer qualifies for the benetlt. [Cases:
Internal Revenue c':::=3089, 3138, 353J.] 3. Int'llaw.
Th.e retaking of a prize or booty so that the property
is legally restored to its original owner. See POSTLIM
INIUM (2). -recapture, vb.
"Upon recapture from pirates, the property is to be restored
to the owner, on the allowance of a reasonable compento restore it." I James Kent, Commentaries on American
Law *1 07-08 (George Comstock ed., 11th ed. 1866).
recapture clause. 1. A contract provision that limits
prices or allows for the recovery of goods if market
conditions greatly differ from what the contract antic
ipated. 2. A commercial-lease provision that grants the
landlord both a percentage ofthe tenant's profits above
a fixed amount of rent and the right to terminate the
lease and thus recapture the property -if those
profits are too low.
recapture rule. Patents. The doctrine that a patentee
cannot regain, in a reissue patent, a claim that the
patentee previously abandoned in order to gain allow
ance of the patent application. _ The rule provides
a defense in an infringement action by allowing the
defendant to attack the validity ofa reissue patent. An
attempt to recapture a strategically abandoned claim
cannot meet the statutory requirement that the error be
made without deceptive intent. 35lJSCA 251. [Cases:
Patents (;:=> 141(6).J
recede, vb. (Of a house in a bicameral legislature) to
withdraw from an amendment in which the other
house has not concurred. See CONCUR (3). [Cases:
Statutes (;:=> 16, 23.]
"A vote to recede from amendments constitutes a final
passage of the bill without the amendments from which the
house has receded, since both houses have then agreed to
the bill in its form prior to amendment." National Confer
ence of State Legislatures, Mason's Manual of Legislative
Procedure 767, at 555 (2000).
receding market. See bear market under MARKET.
receipt, n. (14c) 1. The act of receiving something <my
receipt of the document was delayed by two days>. 2.
A written acknowledgment that something has been
received <keep the receipt for the gift>.
accountable receipt. A receipt in which a person admits
that goods or money were delivered to the person and
that the person is obliged to deliver all or part of the
goods or money to a third person.
interim receipt. The written acknowledgment of a
premium paid on an insurance policy that is pending
final approval. [Cases: Insurance C=) 1746.]
warehouse receipt. Sec WAREHOCSE RECEIPT.
3. (usu, pl.) Something received; INCOME <post the
daily receipts in the ledger>.
receipt, vb. (18c) 1. To acknowledge in writing the receipt
of(something, esp. money) <the bill must be receipted>.
2. To give a receipt for (something, esp. money) <the
bookkeeper receipted the payments>.
receipt clause. In a conveyancing document, a clause
that acts as a receipt for the consideration given. _
This clause typically appears to avoid the necessity of
a separate receipt.
sation to the retaker, in the nature of salvage; for it is a receiptor (ri-see-tdr). (1814) A person who receives from principle of the law of nations, that a capture by pirates a sheriff another's property seized in garnishment anddoes not, like a capture by an enemy in solemn war, change
the title, or devest the original owner of his right to the agrees to return the property upon demand or execu
property, and it does not require the doctrine of postliminy tion. [Cases: Execution (;:=> 150.]
receivable, adj. 1. Capable ofbeing admitted or accepted
<receivable evidence>. 2. Awaiting receipt ofpayment
<accounts receivable>. 3. Subject to a call for payment
<a note receivable>.
receivable, n. (14c) An amount owed, esp. by a business's
customer. See account receivable under ACCOUNT.
unrealized receivable. (1957) An amount earned but
not yet received. _ Unrealized receivables have no
income-tax basis for cash-basis taxpayers. [Cases:
Internal Revenue (;:;::'3931,3935.]
receiver. (18c) 1 |
Internal Revenue (;:;::'3931,3935.]
receiver. (18c) 1. A disinterested person appointed by
a court, or by a corporation or other person, for the
protection or collection of property that is the subject
ofdiverse claims (for example, because it belongs to a
bankrupt or is otherwise being litigated). Cf. LIQUIDA
TOR. [Cases: Corporations C=>552, 621(.5); Receivers
81.]
ancillary receiver. One who is appointed as a receiver
in a particular area to help a foreign receiver collect
the assets ofan insolvent corporation or other entity.
[Cases: Corporations C=>686.]
"An ancillary receiver of a corporation or unincorporated
association may be appointed (a) by a competent court
of a state in which there are assets of the corporation or
unincorporated association at the time of the commence
ment of the action for the appointment of such receiver,
or (b) in the case of a corporation, by a competent court
of the state of incorporation .... The purpose of such an
ancillary receivership is to aid the foreign primary receiver
ship in the collection and taking charge of assets of the
estate being administered." 66 Am. Jur. 2d Receivers 436,
at 239 (1973),
general receiver. See principal receiver.
judgment receiver. A receiver who collects or diverts
funds from a judgment debtor to the creditor. _ A
judgment receiver is usu. appointed when it is difficult
to enforce a judgment in any other manner. -Also
termed receiver in aid ofexecution. [Cases: Execution
(;:::::)404.]
local receiver. Conflict oflaws. A receiver appointed in
the state where property is located or where an act is
done. [Cases: Receivers C=>206.]
principal receiver. A receiver who is primarily respon
sible for the receivership estate . A principal receiver
may ordinarily (1) act outside the state ofappointment,
(2) sue in a foreign court, (3) exercise broad powers of
assignment, and (4) handle all distributions. -Also
termed primary receiver; general receiver; original
receiver. [Cases: Receivers (;:::J205-21O.]
receiver in aid ofexecution. See judgment receiver.
statutory receiver. A receiver whose appointment is
provided for in a statute.
2. Hist. An officer in the royal household who collected
revenues and disbursed them in a lump sum to the trea
surer, and who also acted as an attorney with the power
to appear in any court in England. -The monarch and
his or her consort each had a receiver, thus the full title
was King's Receiver or Queen's Receiver. receiver general. A public official in charge ofa govern
ment's receipts and treasury. PI. receivers general.
receiver's certificate. Bankruptcy. An instrument issued
by a receiver as evidence that the holder is entitled to
! receive payment from funds controlled by the bank
ruptcy court. [Cases: Bankruptcy (;:;'::'3025.1,3035.1.]
receivership. (I5c) 1. The state or condition ofbeing in
the control ofa receiver. [Cases: Corporations C::~'552,
621(.5); Receivers C=::, 1.] 2. 'The position or function of
being a receiver appointed by a court or under a statute.
3. A proceeding in which a court appoints a receiver.
ancillary receivership. A receivership in which a
further administrative proceeding is appointed
in another state to help the principal receivership,
[Cases: Corporations C=>'686; Receivers C=>206.]
dry receivership. A receivership in which there is no
equity available to pay general creditors. [Cases:
Receivers 163.]
receivership estate. The totality of the interests that the
receivers of an association in one or more states are
appointed to protect.
receiving, n. See RECEIVING STOLEN PROPERTY.
receiving order. See ORDER (2).
receiving state. See STATE.
receiving stolen property. (1847) The criminal offense
of acquiring or controlling property known to have
been stolen by another person. _ Some jurisdictions
require the additional element of wrongful intent. In
some jurisdictions it is a felony, but in others it is either
a felony or a misdemeanor depending on the value of
the property. See Model Penal Code 223.1, 223.6.
Sometimes shortened to receiving. -Also termed
receiving stolen goods. See FENCE (1). [Cases: Receiving
Stolen Goods C=> 1.]
recens insecutio (ree-senz in-sd-kyoo-shee-oh). [Latin
"fresh pursuit"] Hist. Pursuit of a thief immediately
after discovery of the theft. See FRESH PURSUIT.
receptator (ree-sep-tay-tor or -t;}r). [Latin fro receptare
"to harbor (a criminal or the proceeds of crime)"] Scots
law, 1. A harborer of a felon. 2. A receiver of stolen
property.
reception. (1931) The adoption in whole or in part ofthe
law ofone jurisdiction by another jurisdiction. -In the
legal idiom, it is most common to speak of the recep
tion ofRoman law.
"In many parts of Europe monarchs encouraged a'recep,
tion' of Roman law at the expense of medieval custom
ary systems. On the continent-in France, Holland, and
Germany-the results of the reception of Roman law have
tended to be permanent; the continental jurist in the twen
tieth century studies Roman law to grasp the jurisprudence
underlying modern codes. And in the British Isles, the law
of Scotland now contains so much borrowing from Roman
law that there, too the road to legal practice leads through
study of the corpus of Roman civil law compiled atJustini
an's direction. But a reception of Roman law never occurred
in England." Arthur R. Hogue, Origins o(the Common Law
242 (1966).
receptitious (ree-sep-tish-;lS), adj. Roman law. 1. (Of a
dowry) returnable by agreement to the donor upon the
dissolution of the marriage. 2. (Of property) retained
by the wife and not included in the dowry.
receptus (ri-sep-t<ls). [Latin "(a person) having been
received"] Civil law. An arbitrator. The term takes
its name from the idea that the arbitrator is "received"
by the parties to settle their dispute.
recess (ree-ses), n. (17c) 1. A brief break in judicial pro
ceedings <the court granted a fifteen-minute recess so
the attorney and plaintiff could confer>. Cf. CONTINU
ANCE (3). [Cases: Criminal Law ~649; Federal Civil
Procedure ~19S1; Trial ~26.]2. Parliamentary law.
A motion that suspends but does not end a meeting,
and that usu. provides for resumption of the meeting
<the meeting had a IS-minute recess> . The motion
to recess, which merely suspends the meeting, differs
from the motion to adjourn, which ends the meeting.
Cf. ADJOURN. [Cases: United States 18.] 3. Parlia
mentary law. The interval between such a motion's
adoption and the meeting's reconvening <Congress
took a monthlong recess>. recess (ri-ses), vb.
recess appointment. See APPOINTMENT.
recession. (1929) A period characterized by a sharp
slowdown in economic activity, declining employment,
and a decrease in investment and consumer spending.
Cf. DEPRESSION.
recessus maris (ri-ses-as mair-as). [Latin] A going back
or retreat of the sea. See RELICTION.
recharacterization. A court's determination that an
insider's loan to an entity in liquidation (such as a cor
poration or partnership) should be treated as a capital
contribution, not as a loan, thereby entitling the insider
to only part of the liquidation proceeds payable after
all the business's debts have been discharged . Factors
influencing this determination include the amount of
capital initially available, the ability of the entity to
obtain loans from outside sources, how long the entity
has existed, the treatment of the loan in the entity's
business records, and past treatment of similar trans
actions made to that entity by an insider. [Cases: Cor
porations (;:='60.]
Recht (rekt). [German "right"] 1. Law generally. 2. A
body oflaw. 3. A right or claim.
Rechtsbesitz (rekts-be-zitz). See possession of a right
under POSSESSION.
Rechtsphilosophie (rekts-f<l-los-;)-fee). See ethical juris
prudence under JURISPRUDENCE.
recidivate (ri-sid-<l-vayt), vb. To return to a habit of
criminal behavior; to relapse into crime. [Cases: Sen
tencing and Punishment (;:::::> 1202.]
recidivation. Archaic. See RECIDIVISM.
recidivism (ri-sid-<l-viz-;)m), n. (1886) A tendency to
relapse into a habit ofcriminal activity or behavior.
Also termed (archaically) recidivation. -recidivous,
recidivist, adj. recidivist (ri-sid-;)-vist), n. (1880) One who has been
convicted of multiple criminal offenses, usu. similar in
nature; a repeat offender <proponents of prison reform
argue that prisons don't cure the recidivist>. -Also
termed habitual offender; habitual criminal; repeater;
career criminal; prior and persistent offender. [Cases:
Sentencing and Punishment (;:;:)1200.]
reciprocal (ri-sip-ra-k;)l), adj. (16c) 1. Directed by each
toward the other or others; MUTUAL <reciprocal trusts>.
2. BILATERAL <a reciprocal contract>. 3. Correspond
ing; equivalent <reciprocal discovery>.
reciprocal contract. See bilateral contract under
CONTRACT.
reciprocal dealing. A business arrangement in which
a buyer having greater economic power than a seller
agrees to buy something from the seller only if the seller
buys something in return. _ Reciprocal dealing usu.
violates antitrust laws. -Also termed reciprocal-deal
ing arrangement. Cf. TYING ARRANGEMENT.
reciprocal discovery. See reverse Jencks material under
JENCKS MATERIAL.
reciprocal exchange. An association whose members
exchange contracts and pay premiums through an
attorney-in-fact for the purpose ofinsuring themselves
and each other. _ A reciprocal exchange can consist of
individuals, partnerships, trustees, or corporations, but
the exchange itself is unincorporated. Also termed
interinsurance exchange; reciprocal insurance exchange;
reciprocal interinsurance exchange. See reCiprocal insur
ance under INSURANCE; EXCHANGE (5). [Cases: Insur
ance (;:;:, 1204.]
reciprocal insurance. See INSURANCE.
reciprocal insurance exchange. See RECIPROCAL
EXCHANGE.
reciprocal interinsurance exchange. See RECIPROCAL
EXCHANGE.
reciprocal negative easement. See EASEMENT.
reciprocal trade agreement. An agreement between two
countries providing for the exchange ofgoods between
them at lower tariffs and better terms than exist between
one ofthe countries and other countries.
reciprocal trust. See TRUST.
reciprocal will. See mutual will under WILL.
reciprocity (res-<l-pros-i-tee). (I8c) l. Mutual or bilateral
action <the Arthurs stopped receiving social invita
tions from friends because of their lack ofreciprocity>.
2. 1he mutual concession of advantages or privileges
for purposes of commercial or diplomatic relations
<Texas and Louisiana grant reciprocity to each other's
citizens in qualifying for in-state tuition rates>. -Also
termed mutuality ofbenefits; quid pro quo; eqUivalence
ofadvantages. [Cases: Colleges and Universities
9.20(2).] 3. Intellectual property. The recognition by
one country of a foreign national's intellectual-prop
erty rights only ifand only to the extent that the other
nation would recognize those same rights for the first
country's citizens . Reciprocity is the most restrictive
approach to international intellectual-property law indifference to the safety of others. [Cases: Automo
rights. Cf. NATIONAL TREATMENT; UNIVERSALITY. biles C:::>330.]
"It has become common when introducing new categories
of rights for them to be granted on the basis of reciprocity.
The advantages of reciprocity are twofold. First. reciprocity
benefits rights owners by providing incentives for non
conforming countries to change their laws. Secondly, it
saves users in one country (A) from paying royalties for
foreign authors from countries that do not pay royalties to
the authors of country A." lionel Bently & Brad Sherman,
Intellectual Property Law 101 (2001).
recision. See RESCISSION.
recission. See RESCISSION.
recital. (16c) 1. An account or description of some fact
or thing <the recital of the events leading up to the
accident>. 2. A preliminary statement in a contract or
deed explaining the reasons for entering into it or the
background of the transaction, or showing the exis
tence of particular facts <the recitals in the settlement
agreement should describe the underlying dispute>.
Traditionally, each recital begins with the word
whereas. Also termed (in sense 2) whereas clause.
[Cases: Contracts 160; Deeds <>34,35,96.]
redte, vb.
'The parries may wish to begin the agreement with a
statement of their intentions. Often they do this through
reCitals, which were traditionally introduced by 'whereas,'
but can simply state the background without this formal
ity." Scott J. Burnham, Contract Drafting Guidebook 8.4,
at 158 (2d ed. 1992).
introductory recital. (usu. pl.) A recital explaining how
and why the |
ed. 1992).
introductory recital. (usu. pl.) A recital explaining how
and why the existing state ofaffairs is to be altered.
narrative recital. (usu. pl.) A recital dealing with
matters such as how the buyer and the seller came
together.
particular recital. A recital that states a fact defi
nitely.
recite, vb. See READ ON.
reckless, adj. (bef. 12c) Characterized by the creation of
a substantial and unjustifiable risk of harm to others
and by a conscious (and sometimes deliberate) disre
gard for or indifference to that risk; heedless; rash.
Reckless conduct is much more than mere negligence:
it is a gross deviation from what a reasonable person
would do. See RECKLESSNESS. Cf. CARELESS; WANTON.
[Cases: Automobiles C:::>330; Negligence <>274.]
recklessly, adv.
"Intention cannot exist without foresight, but foresight can
exist without intention. For a man may foresee the possible
or even probable consequences of his conduct and yet
not desire them to occur; none the less if he persists on
his course he knowingly runs the risk of bringing about
the unwished result. To describe this state of mind the
word 'reckless' is the most appropriate. The words 'rash'
and 'rashness' have also been used to indicate this same
attitude." J.W. Cecil Turner, Kenny's Outlines of Criminal
Law 28 (16th ed. 1952).
reckless disregard. See DISREGARD.
reckless driving. (1902) The criminal offense of operat
ing a motor vehicle in a manner that shows conscious reckless endangerment. (1968) The criminal offense of
putting another person at substantial risk of death or
serious injury. This is a statutory, not a common-law,
offense. [Cases: Assault and Battery <>48.]
reckless homicide. See HOMICIDE.
reckless indifference. See deliberate indifference under
INDIFFERENCE.
reckless knowledge. See KNOWLEDGE.
reckless negligence. See gross negligence under NEGLI
GENCE.
recklessness, n. (bef. 12c) 1. Conduct whereby the actor
does not desire harmful consequence but nonetheless
foresees the possibility and consciously takes the risk.
Recklessness involves a greater degree of fault than
negligence but a lesser degree of fault than intentional
wrongdoing. [Cases: Negligence <>274.1 2. The state of
mind in which a person does not care about the conse
quences ofhis or her actions. Also termed heedless
ness. Cf. WANTONNESS. [Cases: Negligence C=)274.]
"The ordinary meaning of the word [recklessness] is a high
degree of carelessness. It is the doing of something which
in fact involves a grave risk to others, whether the doer
realises it or not. The test is therefore objective and not
subjective." R.F.v. Heuston, Salmond on the Law of Torts
194 (17th ed. 1977).
"An abiding difficulty in discussing the legal meaning of
recklessness is that the term has been given several dif
ferent shades of meaning by the courts over the years. In
the law of manslaughter, 'reckless' was long regarded as
the most appropriate adjective to express the degree of
negligence needed for a conviction: in this sense, it meant
a high degree of carelessness. In the late 1950s the courts
adopted a different meaning of recklessness in the context
of mens rea, referring to D's actual awareness of the risk
of the prohibited consequence occurring: we shall call this
'common-law recklessness.' Controversy was introduced
into this area in the early 1980s, when the House of Lords
purported to broaden the meaning of recklessness so as to
include those who failed to give thought to an obviOUS risk
that the consequence would occur ...." Andrew Ashworth,
Principles ofCriminal Law 154 (1991).
reclamation (rek-l<l-may-sh;m), n. (l848) L The act or an
instance of improving the value ofeconomically useless
land by phYSically changing the land, such as irrigating
a desert. [Cases: Waters and Water Courses C=,"222.]
2. Commercial law. A seller's limited right to retrieve
goods delivered to a buyer when the buyer is insolvent.
DCC 2-702(2). See STOPPAGE IN TRANSITU. [Cases:
Sales C=;316.j 3. The act or an instance of obtaining
valuable materials from waste materials. reclaim,
vb.
i reclusion (ri-kloo-zh;m). Civil law. Incarceration as pun
ishment for a crime; esp. solitary confinement or con
finement at hard labor in a penitentiary.
recognition, n. (16c) 1. Confirmation that an act done
by another person was authorized. See RATIFICATION.
[Cases: Principal and Agent (~::> l70(2).] 2. The formal
admission that a person, entity, or thing has a particu
lar status; esp. a nation's act in formally acknowledging
the existence of another nation or national government.
3. Parliamentary law. The chair's acknowledgment that
a member is entitled to the floor <the chair recognizes
the delegate from Minnesota>. See PRECEDENCE (4).
"When any member desires to speak or deliver any matter
to the house, that person should rise and respectfully
address the presiding officer. When the presiding officer
recognizes the member by calling the member by name
or by indicating recognition, that person is entitled to the
floor and may address the body or present a matter of
business, but may not yield the floor to any other member."
National Conference of State Legislatures, Mason's Manual
ofLegislative Procedure 91, at 76-77 (2000).
4. Tax. The act or an instance of accounting for a
taxpayer's realized gain or loss for the purpose of
income-tax reporting. Cf. NONRECOGNITION PRO
VISION; REALIZATION (2). [Cases: Internal Revenue
~3115, 3178; Taxation ~3466.] 5. An employer's
acknowledgment that a union has the right to act as
a bargaining agent for employees. [Cases: Labor and
Employment ~1160.] 6. Int'llaw. Official action by
a country acknowledging, expressly or by implication,
de jure or de facto, the existence ofa government or a
country, or a situation such as a change of territorial
sovereignty. (Cases: International Law ~4.] 7. RULE
OF RECOGNITION. -recognize, vb.
recognition clause. Real estate. A clause providing that,
when a tract ofland has been subdivided for develop
ment, the ultimate buyers of individual lots are pro
tected ifthe developer defaults on the mortgage . Such
a clause is typically found in a blanket mortgage or a
contract for deed.
recognition picketing. See organizational picketing
under PICKETING.
recognition strike. See STRIKE.
recognitor (ri-kog-mH<Jr), n. 1. Rist. A member ofa jury
impaneled on an assize or inquest. See RECOGNITION
(1), (2). 2. Rare. RECOGNIZOR.
recognizance (ri-kog-n<J-z<Jnts). (14c) 1. A bond or obli
gation, made in court, by which a person promises to
perform some act or observe some condition, such as to
appear when called, to pay a debt, or to keep the peace;
sped!:, an in-court acknowledgment ofan obligation in
a penal sum, conditioned on the performance or non
performance of a particular act . Most commonly, a
recognizance takes the form of a bail bond that guaran
tees an unjailed criminal defendant's return for a court
date <the defendant was released on his own recogni
zance>. See RELEASE ON RECOGNIZANCE. [Cases: Bail
63; Recognizances
"Recognizances are aptly described as 'contracts made
with the Crown in its judicial capacity.' A recognizance is
a writing acknowledged by the party to it before a judge
or officer having authority for the purpose, and enrolled
in a court of record. It usually takes the form of a promise,
with penalties for the breach of it, to keep the peace, to be
of good behaVior, or to appear at the assizes." William R.
Anson, Principles of the Law of Contract 80-81 (Arthur L.
Corbin ed., 3d Am. ed. 1919).
"A recognizance is an acknowledgment of an obligation
in court by the recognizor binding him to make a certain
payment subject to the condition that on the performance of a specified act the obligation shall be discharged." 1
Samuel Williston, A Treatise on the Law ofContracts 6, at
18 (Walter H.E.Jaeger ed., 3d ed. 1957).
personal recognizance. (I8c) The release of a defendant
in a criminal case in which the court takes the defen
dant's word that he or she will appear for a scheduled
matter or when told to appear . This type ofrelease
dispenses with the necessity of the person's posting
money or having a surety sign a bond with the court.
[Cases: Bail <>;)40.]
2. See bail bond under BOND (2).
recognized gain. See GAIN (3).
recognized loss. See LOSS.
recognized market. See MARKET.
recognizee (ri-kog-n<J-zee). (16c) A person in whose
favor a recognizance is made; one to whom someone
is bound by a recognizance.
recognizor (ri-kog-n<J-zor). (16c) A person who is obli
gated under a recognizance; one who is bound by a
recognizance. -Also termed recognitor.
"A recognizance is an acknowledgment upon record of a
former debt, and he who so acknowledges such debt to
be due is termed the recognizor, and he to whom or for
whose benefit he makes such acknowledgment is termed
the recognizee." John Indermaur, Principles of the Common
Law 8 (Edmund H. Bennett ed., 1st Am. ed. 1878).
recollection, n. (l7c) 1. The action ofrecalling something
to the mind, esp. through conscious effort. 2. Some
thing recalled to the mind. See PAST RECOLLECTION
RECORDED; PRESENT RECOLLECTION REFRESHED.
recollect, vb.
recombinant (ri-kom-b<J-mnt), adj. Patents. Of, relating
to, or describing the introduction of DNA from one
living organism into another.
recombinant DNA technology. Patents. The science of
mutating organisms by splicing sections ofone organ
ism's DNA onto that ofanother. -Abbr. rDNA.
recommit. Parliamentary law. To refer (a motion) back
to a committee that has considered it. The motion is
called "recommit" rather than "re-refer" for the sake
of euphony. See REFER. Cf. re-refer under REFER.
recommit, n.
recompensable. See COMPENSABLE.
recompensation. Scots law. In an action for debt, a plain
tiff's allegation that money owed to a defendant has
already been paid and should not be considered as a
setoff against an award to the plaintiff.
recompense (rek-<Jm-pents), n. (15c) Repayment, com
pensation, or retribution for something, esp. an injury
or loss. -recompense, vb.
reconciliation (rek-<Jn-sil-ee-ay-sh,m), n. (14c) 1. Resto
ration ofharmony between persons or things that had
been in conflict <a reconciliation between the plain
tiff and the defendant is unlikely even if the lawsuit
settles before trial>. 2. Family law. Voluntary resump
tion, after a separation, of full marital relations between
spouses <the court dismissed the divorce petition
after the parties' reconciliation>. Cf. CONDONATION
(2). [Cases: Divorce C=~48; Husband and Wife
279(3).] 3. Accounting. An adjustment of accounts so
that they agree, esp. by allowing for outstanding items
<reconciliation of the checking account and the bank
statement>. -reconcile (rek-;ln-srl), vb.
reconciliation agreement. Family law. A contract
between spouses who have had marital difficulties but
who now wish to save the marital relationship, usu.
by specifying certain economic actions that might
ameliorate pressures on the marriage. This type of
agreement serves a limited purpose. In fact. many states
have statutes prohibiting enforcement of contracts for
domestic services. so ifthe agreement governs anything
other than economic behavior. it may be unenforceable.
[Cases: Husband and Wife C='30.]
reconciliation statement. An accounting or financial
statement in which discrepancies are adjusted.
reconduction, n. 1. Civil law. The renewal of a lease.
Also termed relocation. See TACIT RELOCATION. [Cases:
Landlord and Tenant (;:::::90.] 2. Int'llaw. The forcible
return ofaliens (esp. illegal aliens. destitute or diseased
aliens, or alien criminals who have served their pun
ishment) to their country oforigin. Also termed (in
sense 2) renvoi. -reconduct, vb.
reconsider, vb. To discuss or take up (a matter) again
<legislators voted to reconsider the bill>. Under
parliamentary law, a motion to reconsider sets aside a
certain vote already taken and restores the motion on
which the vote is being reconsidered to its status imme
diately before the vote occurred. Making a motion to
reconsider suspends a vote already taken until the
assembly decides whether to reconsider it. recon
sideration, n.
"The motion to reconsider is a distinctively American
motion (it was first made the subject of a rule in the U. S.
House of Representatives in 1 B02).
"This motion was unknown to the early British Parliament |
rule in the U. S.
House of Representatives in 1 B02).
"This motion was unknown to the early British Parliament.
When Parliament (the British Congress) passed an act. that
act then stood as the judgment of the body until another
law or supplementary act was afterward passed explain
ing or amending the previous act - a slowmoving and
time consuming process in the estimation of American
lawmakers.
"Consequently, the American love for celerity invented the
motion to reconsider. and cleverly made it a mere proce
dural or restoratory motion. As a result, the motion to
reconsider now makes possible immediate reconsideration
of a question, even on the same day." George Demeter,
Demeter's Manual of Parliamentary Law and Procedure
1S4 (1969).
reconsider and enter on the minutes. Parliamentary
law. To make a motion to reconsider for the purpose
of suspending a vote already taken and bringing it
back up at the next meeting, Also termed recon
sider and enter; reconsider and have it entered on the
minutes.
reconsignment. (16c) A change in the terms of a con
Signment while the goods are in transit. See CONSIGN
MENT. [Cases: Carriers 178.] reconstruction. 1. Ihe act or process of rebuilding, re
creating, or reorganizing something <an expert in
accident reconstruction>. 2. Patents. A rebuilding of
a broken, worn-out, or otherwise inoperative patented
article in such a way that a new article is created, thus
resulting in an infringement <the replacement of the
machine's essential parts was an infringing recon
struction rather than a permissible repair>. Cf. REPAIR
DOCTRINE. [Cases: Patents (;:::::255.] 3. (cap.) The process
by which the Southern states that had seceded during
the Civil War were readmitted into the Union during
the years follOWing the war (i.e., from 1865 to 1877)
<the 13th, 14th, and 15th Amendments to the U.S. Con
stitution are a lasting legacy of Reconstruction>.
recontinuance. (16c) Hist. 1. Resumption or renewal. 2.
The recovery of an incorporeal hereditament that had
been wrongfully deprived.
reconvention. Civil law. The act or process of making a
counterclaim. See COUNTERCLAIM. [Cases: Set-off and
Counterclaim (;:::::6.)
reconventional demand. See DEMAND (1).
reconventione (ree-bn-ven-shee-oh-nee). [Law Latin]
Hist. By reconvention. See RECONVENTION.
reconversion. The notional or imaginary process by
which an earlier constructive conversion (a change of
personal into real property or vice versa) is annulled
and the converted property restored to its original
character. See equitable conversion under CONVERSION
(1). [Cases: Conversion (;:::::22.]
reconveyance, n. (16c) The restoration or return of
something (esp. an estate or title) to a former owner or
holder. -reconvey, vb.
record, n. (Be) 1. A documentary account of past events,
usu. designed to memorialize those events. 2. Infor
mation that is inscribed on a tangible medium or that,
haVing been stored in an electronic or other medium,
is retrievable in perceivable form. UCC 2A-102(a)(34).
3. MINUTES (2). 4. The official report of the proceed
ings in a case, including the filed papers, a verbatim
transcript of the trial or hearing (if any), and tangible
exhibits. Also termed (in some jurisdictions) clerk's
record; (in BrE) bundle. See DOCKET (1). [Cases: Admin
istrative Law and Procedure <8=>676; Appeal and Error
C-=493-717; Criminal Law 1086.1-1128; Federal
Courts (;:::::691.]
defective record. (I8c) 1. A trial record that fails to
conform to requirements of appellate rules. [Cases:
Appeal and Error (;:::::634-645; Criminal Law
1109; Federal Courts (:::>698.] 2. A flawed real-estate
title resulting from a defect on the property's record
in the registry of deeds. [Cases: Vendor and Purchaser
C='231(6).]
public record. (l6c) A record that a governmental unit
is required by law to keep, such as land deeds kept at
a county courthouse . Public records are generally
open to view by the public. Cf. public document under
DOCUMENT. [Cases: Records <8::;.' 1,30,54.]
record 1388
reporter's record. In some jurisdictions, a trial tran
script. -Also termed stenographer's record.
silent record. Criminal procedure. A record that fails
to disclose that a defendant voluntarily and know
ingly entered a plea, waived a right to counsel, or took
any other action affecting his or her rights. [Cases:
Criminal Law C=>1144.1-1144.20.]
stenographer's record. See reporter's record.
record, vb. To deposit (an original or authentic official
copy of a document) with an authority <she recorded
the deed in the county property office>. [Cases: Records
recorda (ri-kor-d;l). Hist. In England, records that con
tained the judgments and pleadings in actions tried
before the barons ofthe Exchequer. Cf. ORIGINALIA.
record agent. See INSURANCE AGENT.
recordal. See RECORDATION.
recordare (ree-kor-dair-ee), n. [Law Latin] See RECORD
ARI.
recordari (ree-kor-dair-r). A writ to bring up for review,
as a substitute for an appeal, a judgment of a justice
of the peace or other court not of record. -Writs of
recordari are most common in North Carolina but
are used infrequently in other states. -Also spelled
recordare. [Cases: Justices of the Peace (;;=; 164(5).]
recordari facias loquelam (ree-kor-dair-r fay-shee-<'ls
l;l-kwee-l;lm), n. [Law Latin "you cause the plaint to
be recorded"] Hist. In England, a writ by which a suit
or plaint in replevin could be removed from a county
court to a superior court (esp. to one of the courts of
Westminster Hall). -Abbr. reo fa. 10. See PLAINT (1).
recordation (rek-<lr-day-sh;ln), n. The act or process of
recording an instrument, such as a deed or mortgage,
in a public registry . Recordation generally perfects a
person's interest in the property against later purchasers
(including later mortgagees), but the effect ofrecorda
tion depends on the type of recording act in effect.
Also termed recordal. [Cases: Records C=>6.]
recordatur (ri-kor-d<l-tuur). His!. An order to record the
verdict returned in a nisi prius case.
record date. See DATE.
recorded recollection. See PAST RECOLLECTION
RECORDED.
recorder. (15c) 1. Hist. A magistrate with criminal juris
diction in some British cities or boroughs. 2. A munici
pal judge with the criminal jurisdiction ofa magistrate
or a police judge and sometimes also with limited civil
jurisdiction. 3. A municipal or county officer who keeps
public records such as deeds, liens, and judgments.
court recorder. (18c) A court official who records court
activities using electronic recording equipment, usu.
for the purpose ofpreparing a verbatim transcript. Cf.
COURT REPORTER (1). [Cases: Courts
recorder ofdeeds. See register ofdeeds under REGISTER
(1). 4. SECRETARY (3).
recorder's court. See COURT.
recording act. (1802) A law that establishes the require
ments for recording a deed or other property interest
and the standards for determining priorities between
persons claiming interests in the same property (usu.
real property). -Recording acts -the three main types
ofwhich are the notice statute, the race statute, and the
race-notice statute are deSigned to protect bona fide
purchasers from earlier unrecorded interests. -Also
termed recording statute. See NOTICE STATUTE; RACE
STATUTE; RACE-NOTICE STATUTE. [Cases: Deeds
Records (;;=;9; Vendor and Purchaser C=231.]
recording agent. See INSURANCE AGENT.
recording officer. See SECRETARY (3).
recording secretary. See SECRETARY (3).
recording statute. See RECORDING ACT.
record notice. See NOTICE.
recordo et processu mittendis. See DE RECORDO ET
PROCESSU MITTEN DIS.
record of decision. Environmental law. A public
document, generated under CERCLA, describing a
federal agency's decision regarding an environmen
tal problem, identifying the remedies considered and
which one is best, stating whether practical means to
minimize or prevent environmental harms caused by
the chosen remedy have been adopted, and summariz
ing a plan for monitoring and enforcing any measures
required to mitigate environmental harm. -Abbr.
ROD. [Cases: Environmental LawC::~439.1
record on appeal. The record ofa trial-court proceedi ng
as presented to the appellate court for review. Also
termed appellate record. See RECORD (4). [Cases: Appeal
and ErrorC::>493-717; Criminal LawC=>1086.1-1128;
Federal Courts (;;=;691-710.]
record owner. See OWNER.
record title. See TITLE (2).
recordum (ri-kor-d<'lm). [Law Latin] Hist. A record, esp.
a judicial one.
recoupment (ri-koop-m;lnt), n. (17c) 1. The recovery or
regaining ofsomething, esp. expenses. 2. The withhold
ing, for equitable reasons, of all or part of something
that is due. See EQ1;ITABLE RECOUPMENT (1), (2). 3.
Reduction ofa plaintiff's damages because ofa demand
by the defendant arising out of the same transaction.
See EQUITABLE RECOUPMENT (3). Cf. SETOFF (2). [Cases:
Set-off and Counterclaim (;;=;6.]4. The right ofa defen
dant to have the plaintiff's claim reduced or eliminated
because ofthe plaintiffs breach of contract or duty in
the same transaction. 5. An affirmative defense alleging
such a breach. 6. Archaic. A counterclaim arising out of
the same transaction or occurrence as the one on which
the original action is based. -In modern practice, the
recoupment has been replaced by the compulsory coun
terclaim. recoup, vb.
recourse (ree-kors or ri-kors). (14c) 1. The act ofseeking
help or advice. 2. Enforcement of, or a method for
enforcing, a right. 3. The right of a holder of a nego
tiable instrument to demand payment from the drawer
or indorser if the instrument is dishonored. See WITH
RECOURSE; WITHOUT RECOURSE. 4. The right to repay
ment ofa loan from the borrower's personal assets, not
just from the collateral that secured the loan.
recourse loan. See LOAN.
recourse note. See NOTE (1).
recover, vb. (14c) 1. To get back or regain in full or in
equivalence <:the landlord recovered higher operating
costs by raising rent>. 2. To obtain by a judgment or
other legal process <the plaintiff recovered punitive
damages in the lawsuit>. 3. To obtain (a judgment) in
one's favor <the plaintiff recovered a judgment against
the defendant>. 4. To obtain damages or other relief;
to succeed in a lawsuit or other legal proceeding <the
defendant argued that the plaintiff should not be
allowed to recover for his own negligence>.
recoverable, adj. (14c) Capable of being recovered, esp.
as a matter oflaw <court costs and attorney's fees are
recoverable under the statute>. -recoverability, n.
recovered-memory syndrome. See REPRESSED-MEMORY
SYNDROME.
recoveree. Hist. The party against whom a judgment
is obtained in a common recovery. See COMMON
RECOVERY.
recoveror. Hist. The demandant who obtains a judgment
in a common recovery. See COMMON RECOVERY.
recovery. (15c) 1. The regaining or restoration of some
thing lost or taken away. 2. The obtainment of a right
to something (esp. damages) by a judgment or decree.
3. An amount awarded in or collected from a judgment
or decree.
double recovery. (1813) L A judgment that erroneously
awards damages twice for the same loss, based on two
different theories of recovery. [Cases: Damages
15.]2. Recovery by a partyofmore than the maximum
recoverable loss that the party has sustained.
recrimination (ri-krim-i-nay-sh,m), n. 1. Family law.
Archaic. In a divorce suit, a countercharge that the
complainant has been guilty of an offense constitut
ing a ground for divorce . When both parties to the
marriage have committed marital misconduct that
would be grounds for divorce, neither may obtain a
fault divorce. Recriminations are now virtually obsolete
because ofthe prevalence ofno-fault divorce. See COM
PARATIVE RECTITUDE. Cf. COLLUSION (2); CONNIV
ANCE (2); CONDONATION (2). [Cases: Divorce
2. Criminal law. An accused person's counteraccusa
tion against the accuser. The accusation may be for
the same or a different offense. recriminatory, adj.
recross-examination. (1869) A second cross-examina
tion, after redirect examination. -Often shortened to
recross. See CROSS-EXAMINATION. [C |
ina
tion, after redirect examination. -Often shortened to
recross. See CROSS-EXAMINATION. [Cases: Witnesses
(;=291.] recta gubernatio (rek-ta g[y]oo-bar-nay-shee-oh), n.
[Latin "right government"] A government in which the
highest power, however strong and unified, is neither
arbitrary nor irresponsible, and derives from a law that
is superior to itself. Also termed legitima guberna
tio.
rectification (rek-ta-fi-kay-shan), n. (18c) 1. A court's
equitable correction ofa contractual term that is mis
stated; the judicial alteration of a written contract to
make it conform to the true intention of the parties
when, in its original form, it did not reflect this inten
tion. _ As an equitable remedy, the court alters the
terms as written so as to express the true intention of
the parties. The court might do this when the rent is
wrongly recorded in a lease or when the area of land
is incorrectly cited in a deed. [Cases: Reformation of
Instruments C=> LJ 2. A court's slight modification of
words ofa statute as a means of carrying out what the
court is convinced must have been the legislative intent.
-For example, courts engage in rectification when they
read and as or or shall as may, as they frequently must
do because of unfastidious drafting. See REFORMA
TION. rectify, vb.
rectification of boundaries. Hist. An action to deter
mine or correct the boundaries between two adjoining
pieces ofland. [Cases: Boundaries C=>Z7.]
rectification of register. Rist. A process by which a
person whose name was wrongly entered in or omitted
from a record can compel the recorder to correct the
error.
reetitudo (rek-ta-t[yJoo-doh). [Law Latin] A right or legal
due; a tribute or payment.
recto de advocatione. See DE RECTO DE ADVOCATIONE.
recto de rationabili parte. See DE RECTO DE RATIONABILl
PARTE.
recto patens. See DE RECTO PATENS.
rector (rek-tdr). 1. Eccles. law. The spiritual head and
presiding officer of a parish. Also termed parson.
Cf. VICAR.
impropriate rector. A lay rector as opposed to a clerical
rector.
rector sinecure (sI-nee-kyoor-ee). A rector who does
not have the cure of souls.
2. Roman law, A governor or ruler.
rector provinciae (pra-vin-shee-ee). A governor of a
province.
rectum (rek-tam). [Latinl 1. Right. 2. A trial or accusa
tion.
rectus (rek-tas). [Latin "right"] Rist. (Of a line ofdescent)
straight; direct. Cf. OBLIQUUS.
rectus in curia (rek-t<)s in kyoor-ee-d), adj. [Latin "right
in the court") Hist. Free from charge or offense; com
petent to appear in court and entitled to the benefit of
law. See LEGALIS HOMO.
recuperatio (ri-k[y]oo-p;}-ray-shee-oh), n. [Latin
"recovery"] Hist. Judicial restitution ofsomething that
has been wrongfully taken or denied.
recuperator (ri-k[y]oo-p<l-ray-tor), n. [Latin "assessor"]
Roman law. 1. A member of a mixed body ofcommis
sioners, appointed by a convention between two states
tor the purpose of adjusting any claims or disputes
that might arise between the members ofthose states.
2. One of a bank of judges, instead of a single judex,
appointed to hear civil cases that had a publiC-interest
element. PI. recuperatores (ri-k[y]oo-p<l-r<l-tor-eez).
recurrent nuisance. See NUISANCE.
recusable (ri-kyoo-z;:>-b<ll), adj. (1863) 1. (Of an obliga
tion) arising from a party's voluntary act and that can
be avoided. Cf. IRRECUSABLE. 2. (Of a judge) capable of
being disqualified from sitting on a case. [Cases: Judges
(;::J39-56.]3. (Of a fact) providing a basis for disquali
fying a judge from sitting on a case.
recusal (ri-kyoo-z<'ll), n. (1949) Removal of oneself
as judge or policy-maker in a particular matter, esp.
because of a contlict of interest. -Also termed recu
sation; recusement. Cf. DISQUALIFICATION. [Cases:
Administrative Law and Procedure (;::J314; Judges
(;::J39-56.]
recusant (rek-Y<'l-z<lnt or ri-kyoo-z<lnt), adj. (l6c)
Refusing to submit to an authority or comply with a
command <a recusant witness>.
recusant (rek-Y<l-z<'lnt or ri-kyoo-z<'lnt), n. 1. Eccles. law.
A person (esp. a Roman Catholic) who refuses to attend
the services ofthe established Church ofEngland. 2. A
person who refuses to submit to an authority or comply
with a command.
recusatio judicis (reh-kyoo-zay-shee-oh joo-dish-is),
n. [Latin] Eccles. law. The procedure and grounds by
which a judge may be challenged and removed from
hearing a case . The grounds for disqualification tra
ditionally include great friendship or enmity with a
party, close kinship to a party, acceptance of a bribe,
previously giving counsel to a party, or demonstrated
ignorance of the law. A panel ofthree arbiters, chosen
by the challenging party and the judge, decides whether
the party's complaint has merit.
recusation (rek-Y<l-zay-sh<ln). 1. Civil law. An objec
tion, exception, or appeal; esp. an objection alleging a
judge's prejudice or conflict of interest. [Cases: Judges
(;::J39-56.J 2. RECUSAL.
recuse (ri-kyooz), vb. (16c) 1. To remove (oneself) as
a judge in a particular case because of prejudice or
conflict of interest <the judge recused himself from
the trial>. [Cases: Judges (;::J39-56.] 2. To challenge
or object to (a judge) as being disqualified from hearing
a case because ofprejudice or a conflict ofinterest <the
defendant filed a motion to recuse the trial judge>.
recusement. See RECIJSAL.
redaction (ri-dak-sh<ln), n. (18c) 1. The careful editing
of a document, esp. to remove confidential references
or offensive material. [Cases: Criminal Law (,'":::>663; Federal Civil Procedure (;::J2011; Records (;::J66; Trial
<>~)39.J 2. A revised or edited document. -redac
tional, ad}. -redact, vb.
red-cow case. See WHITEHORSE CASE.
reddendo (ri-den-doh). Scots law. 1. A clause in a charter
specifying a duty, rent, or service due from a vassal
to a superior. 2. The duty or service specified in this
clause; feu duty.
reddendo singulasingulis (ri-den-doh sing-gy<l-l<'l sing
gy<'l-lis). [Latin "by rendering each to each"] Assigning
or distributing separate things to separate persons, or
separate words to separate subjects . This was used
as a rule of construction deSigned to give effect to the
intention ofthe parties who drafted the instrument.
Also termed referenda singula singulis.
reddendum (ri-den-d;}m). [Latin "that must be given
back or yielded"] (17c) A clause in a deed by which
the grantor reserves some new thing (esp. rent) out of
what had been previously granted. [Cases: Deeds <:;,----::.
141-143.]
reddidit se (red-<l-dit see). [Latin "he has rendered
himself"] Hist. A person who has personally appeared
in order to discharge bail.
reddition (ri-dish-<ln). Hist. An acknowledgment in
court that one is not the owner of certain property
being demanded, and that it in fact belongs to the
demandant.
redditus. See REDITUS.
redeemable bond. See BOND (3).
redeemable ground rent. See ground rent (1) under RENT
(1).
redeemable security. See SECURITY.
redeemable stock. See STOCK.
redelivery. (15c) An act or instance of giving back or
returning something; restitution.
redelivery bond. See replevin bond under BOND (2).
redemise, n. (18e) An act or instance of conveying or
transferring back (an estate) already demised. See
DEMISE. -redemise, vb.
redemption, n. (l6c) 1. The act or an instance ofreclaim
ing or regaining possession by paying a specific price.
[Cases: Secured Transactions (;:::;241.] 2. Bankruptcy.
A debtor's right to repurchase property from a buyer
who obtained the property at a forced sale initiated by
a creditor. [Cases: Bankruptcy (;::J3034.] 3. Securities.
The reacquisition ofa security by the issuer . Redemp
tion usu. refers to the repurchase of a bond before
maturity, but it may also refer to the repurchase of stock
and mutual-fund shares. -Also termed (in reference to
stock) stock redemption; stock repurchase. [Cases: Cor
porations (;::J68, 376, 468.1.]4. Property. The payment
of a defaulted mortgage debt by a borrower who does
not want to lose the property. -Also termed dismort
gage. See EQUITY OF REDEMPTION. [Cases: Mortgages
(;=>591-624.]- redeemable, redemptive, redemp
tional adj. -redeem, vb.
1391 redlining
statutory redemption. (1851) The statutory right of
a defaulting mortgagor to recover property, within
a specified period, after a foreclosure or tax sale,
by paying the outstanding debt or charges. _ The
purpose is to protect against the sale of property at a
price far less than its value. See REDEMPTION PERIOD.
[Cases: Mortgages (>592.J
tax redemption. (1867) A taxpayer's recovery of
property taken for nonpayment oftaxes, accomplished
by paying the delinquent taxes and any interest, costs,
and penalties. [Cases: Taxation (>3001,3053.]
redemption agreement. See STOCK-REDEMPTION AGREE
MENT.
redemptioner. A person who redeems; esp. one who
redeems real property under the equity ofredemption
or the right ofredemption. See EQUITY OF REDEMPTION;
STATUTORY RIGHT OF REDEMPTION.
redemption period. The statutory period during which
a defaulting mortgagor may recover property after a
foreclosure or tax sale by paying the outstanding debt
or charges. [Cases: Mortgages (;=>599; Taxation
3011.]
redemption price. See PRICE.
redemptio operis (ri-demp-shee-oh op-a-ris), n. [Latin
"'redemption of work" JCivil law. A contract in which a
worker agrees to perform labor or services for a speci
fied price. Cf. locatio opera rum under LOCATIO.
redemptor (ri-demp-tar), n. Roman law. A contractor.
See CONDUCTOR (1).
redeundo (ree-dee-;m-doh). [Latin] Returning; in return
ing; while returning.
redevance (ruu-da-vahns). [French] Hist. Dues payable
by a tenant to the lord, not necessarily in money.
red herring. (1884) 1. An irrelevant legal or factual issue,
usu. intended to distract or mislead <law students
should avoid discussing the red herrings that professors
raise in exams>. 2. See preliminary prospectus under
PROSPECTUS.
red-herring prospectus. See preliminary prospectus
under PROSPECTUS.
redhibere (red-hi-beer-ee), vb. [Latin] Civil law. 1. To
return (a defective purchase) to the seller. 2. (Of a seller)
to take back (a defective purchase).
redhibition (red-[h]i-bish-an), n. Civil law. The voidance
ofa sale as the result ofan action brought on account of
some defect in a thing sold, on grounds that the detect I
renders the thing either useless or so imperfect that the
buyer would not have originally purchased it. La. Civ.
Code art. 2531. [Cases: Sales C~::) 119.] redhibitory
(red-hib-a-tor-ee), adj.
redhibitory action. See ACTION (4).
redhibitory defect. Civil law. A fault or imperfection
in something sold, as a result of which the buyer may
return the item and demand back the purchase price.
La. Civ. Code art. 2520. Also termed redhibitory vice.
[Cases: Sales (;::::-'" 119.] redimere (ri-dim-a-ree), vb. [Latin] 1. To buy back;
repurchase. 2. To obtain the release of by payment;
ransom.
redirect examination. (1865) A second direct exami
nation, after cross-examination, the scope ordinarily
being limited to matters covered during cross-exami
nation. -Often shortened to redirect. -Also termed
(in England) reexamination. See DIRECT EXAMINATION.
[Cases: Witnesses (:::::J285.]
rediscount, n. 1. The act or process ofdiscounting a nego
tiable instrument |
:J285.]
rediscount, n. 1. The act or process ofdiscounting a nego
tiable instrument that has alreadv been discounted, as
by a bank. 2. (usu. pl.) A negoti~ble instrument that
has been discounted a second time. See DISCOUNT.
rediscount, vb.
rediscount rate. See INTEREST RATE.
redisseisin (ree-dis-see-zin), n. (16c) 1. A disseisin by
one who has already dispossessed the same person of
the same estate. 2. A writ to recover an estate that has
been dispossessed by redisseisin. -Also spelled redis
seizin. See DISSEISIN. -redisseise (ree-dis-seez), vb.
redisseisina. See DE REDISSEISINA.
redistribution. The act or process ofdistributing some
thing again or anew <redistribution of wealth>.
redistrict, vb. To organize into new districts, esp. legis
lative ones; reapportion. [Cases: States (>27; United
States 10.]
redistricting. See REAPPORTIONMENT.
reditus (red-a-tas), n. [Latin "return"] A revenue or
return; esp. rent. Also spelled redditus.
reditus albi (al-bI). [Latin "white return"] Rent payable
in silver or other money.
reditus capitales (kap-a-tay-Ieez). [Latin "capital
return"] Chief rent paid by a freeholder to go quit of
all other services. See QUIT RENT.
reditus nigri (nig-n). [Latin "black return"] Rent
payable in goods or labor rather than in money.
reditus quieti (kwl-ee-tI). [Latin "qUiet return"] See
QUIT RENT.
reditus siccus (sik-as). [Latin "dry return"] Rent seck.
See rent seck under RENT (2).
red-light abatement laws. An ordinance or statute
intended to eliminate and prohibit sex-oriented busi
nesses, usu. on grounds that they are public nuisances.
-Brothels were once typically identified by a red light
displayed in a window or in the front yard.
redlining, n. (1973) 1. Credit discrimination (usu.
unlawful discrimination) by an institution that refuses
to provide loans or insurance on properties in areas
that are considered to be poor financial risks or to the
people who live in those areas. [Cases: Civil Rights c:::=-",
1041, 1079; Consumer Credit (>31.]2. The process,
usu. automated, ofcreating, for an existing document,
an interim version that shows, through strike-outs and
other typographical features, all deletions and inser
tions made in the most recent revision. redline, vb.
redraft 1392
redraft, n. (l7c) A second negotiable instrument offered
by the drawer after the first instrument has been dis
honored. -redraft, vb.
redress (ri-dres or ree-dres), n. (14c) 1. Relief; remedy
<money damages, as opposed to equitable relief, is the
only redress available>. [Cases: Damages 3.] 2.
A means ofseeking relief or remedy <if the statute of
limitations has run, the plaintiff is without redress>.
redressable, adj. redress (ri-dres), vb.
penal redress. A form of penal liability requiring full
compensation of the injured person as an instru
ment for punishing the offender; compensation paid
to the injured person for the full value ofthe loss (an
amount that may far exceed the wrongdoer's benefit).
See RESTITUTION.
restitutionary redress. Money paid to one who has
been injured, the amount being the pecuniary value
ofthe benefit to the wrongdoer. See RESTITUTION.
red tape. A bureaucratic procedure required to be
followed before official action can be taken; esp. rigid
adherence to time-consuming rules and regulations;
excessive bureaucracy. _ The phrase originally referred
to the red ribbons that lawyers and government officials
once used to tie their papers together.
redubber. Rist. One who buys stolen cloth and redyes it
or makes it into something so that the cloth is unrec
ognizable.
reductio ad absurdum (ri-d~k-shee-oh or ri-d~k-tee-oh
ad ab-s~r-d;}m). [Latin "reduction to the absurd"] (18c)
In logic, disproof of an argument by showing that it
leads to a ridiculous conclusion.
reduction improbation. See IMPROBATION.
reduction in force. See LAYOFF.
reduction to practice. Patents. The embodiment of the
concept ofan invention, either by physical construction
and operation or by filing a patent application with a
disclosure adequate to teach a person reasonably skilled
in the art how to make and work the invention without
undue experimentation. -The date of reduction to
practice is critical in determining priority between
inventors competing for a patent on the same inven
tion. See INVENTION. [Cases: Patents C--::>90(5).]
actual reduction to practice. The empirical demonstra
tion that an invention performs its intended purpose
and is therefore complete for patent purposes; the
use of an idea or invention as by testing it -to
establish that the idea or invention will perform its
intended purpose. Brunswick Corp. v. U.S., 34 Fed.
Cl. 532,584 (1995).
constructive reduction to practice. The documented
demonstration that an invention will perform its
intended purpose, contained in a patent application
that provides enough detail that a person skilled in
the art could make and test the invention; the filing of
a patent application for an invention or design. Bruns
wick Corp. v. U. S., 34 Fed. Cl. 532, 584 (1995). [Cases:
Patents (;::::J90(5).j vicarious reduction to practice. A doctrine that treats
one party's actual reduction to practice ofan inven
tion as the opposing (usu. complaining) party's actual
reduction to practice. -In a two-party interference,
proofofderivation is usu. sufficient; showing an actual
reduction to practice is unnecessary. The doctrine is
more important in a three-party interference. [Cases:
Patents <':>90 (5).J
reenactment rule. (1941) In statutory construction, the
principle that when reenacting a law, the legislature
implicitly adopts well-settled judicial or administrative
interpretations ofthe law. [Cases: Statutes ~223.5.1
reentry, n. (I5c) 1. The act or an instance ofretaking pos
session ofland by someone who formerly held the land
and who reserved the right to retake it when the new
holder let it go. 2. A landlord's resumption of posses
sion ofleased premises upon the tenant's default under
the lease. See POWER OF TERMINATION reenter, vb.
reeve (reev). Rist. 1. A ministerial officer of high rank
having local jurisdiction; the chief magistrate of a
hundred. _ 'the reeve executed process, kept the peace,
and enforced the law by holding court within the
hundred. 2. A minor officer serving the Crown at the
hundred level; a bailiff or deputy-sheriff. 3. An overseer
ofa manor, parish, or the like. -Also spelled reve.
Also termed greve.
"All the freeholders, unless relieved by special exemption.
'owed suit' at the hundredmoot, and the reeve of the
hundred presided over it. In AngloSaxon times. the reeve
was an independent offiCial, and the hundredmoot was
not a preliminary stage to the shiremoot at all. ... But after
the Conquest the hundred assembly, now called a court as
all the others were. lost its importance very quickly. Pleas
of land were taken from it, and its criminal jurisdiction
limited to one of holding suspects in temporary detention.
The reeve of the hundred became the deputy of the sheriff,
and the chief purpose of holding the hundred court was to
enable the sheriff to hold his tourn and to permit a 'view of
frankpledge,' i.e., an inspection ofthe person who ought to
belong to the frankpledge system." Max Radin, Handbook
ofAngloAmerican Legal History 17475 (1936).
borough reeve. Rist. In England, the head ofan unin
corporated municipality.
shire-reeve. The reeve ofa shire. _ The shire-reeve was a
forerunner of the sheriff. -Also spelled shire-reve.
Also termed shire-gerefa.
reexamination, n. (17c) 1. REDIRECT EXAMINATION <the
attorney focused on the defendant's alibi during reex
amination>. [Cases: Witnesses C--::>285.] 2. Patents. A
proceeding by the U.S. Patent and Trademark Office to
determine whether prior art renders one or more claims
ofan already-issued patent invalid; speci, an adminis
trative procedure by which a party can seek review ofa
patent on the basis ofprior art by the PTO <the alleged
infringer, hoping to avoid liability, sought reexamina
tion ofthe patent to narrow its scope>. - A reexamina
tion may be sought by anyone, even the patentee or an
anonymous informant, at any time during the life ofa
patent. Only patents and publications may be consid
ered as prior art. 35 USCA 301-05. [Cases: Patents
(;::::J 134, 140.] reexamine, vb.
1393
ex parte reexamination. A reexamination procedure,
created in the early 1980s, that allows a challenger to
initiate a review by producing prior art and respond
ing to a patentee's statements regarding the new prior
art, but that excludes the challenger from further
participation in the examination process. -Ex parte
reexamination does not employ discovery mecha
nisms and witnesses are not examined. The chal
lenger also has no right to participate in an appeaL
See 35 USCA 302-07. Cf. inter partes reexamina
tion. [Cases: Patents C~140.J
inter partes reexamination. A reexamination pro
cedure, created in 1999, that allows a challenger to
initiate a review by producing prior art, to respond
to a patentee's statements regarding the new prior
art, to address the patentee's responses to any office
actions, and to request a hearing. -Both parties must
serve each other with documents filed in the proceed
ing, but there is no discovery and witnesses are not
examined. Either party may appeal the PTO's final
decision on patentability. Inter partes reexamination
is available to patents that issue from original applica
tions that were filed on or after November 29, 1999.
See 35 USCA 311-318. Cf. ex parte reexamination.
[Cases: Patents C::o 140.]
reexamination certificate. Patents. A certificate issued
by the U.S. Patent and Trademark Office at the conclu
sion ofa reexamination proceeding, confirming that a
patent has been reexamined and the claims have been
found to be patentable, confirming that claims deter
mined to be unpatentable have been canceled, or incor
porating into the patent any amended or new claims
determined to be patentable. 35 USCA 307. [Cases:
Patents C::o140.]
reexchange, n. 1. A second or new exchange. 2. The
process of recovering the expenses that resulted from
the dishonor ofa bill ofexchange in a foreign country.
3. The expenses themselves.
reexecution. (18c) 1he equitable remedy by which a lost
or destroyed deed or other instrument is replaced. _
Equity compels the party or parties to execute a new
deed or instrument ifa claimant properly proves a right
under one that has been lost or destroyed. [Cases: Lost
Instruments
reexport, n. 1. The act of exporting again something
imported. 2. A good or commodity that is exported
again. -reexport, vb.
reextent. Hist. A second extent made upon complaint
that the earlier extent was improper. See EXTENT.
re.fa.lo. abbr. RECORDARI FACIAS LOQUELAM.
refare (ri-fair-ee), vb. [Latin] To bereave; rob: take
away.
refection. Civil law. Repair or restoration, as of a
building.
refer. Parliamentary law. To send (a motion) to a com
mittee for its consideration or investigation, with a view
to a report from the committee back to the referring referendum
body. -Also termed commit. Cf. RECOMMIT; DIS
CHARGE (g).
re-refer. (Ofthe U.S. House of Representatives) to refer
a bill to a different committee from the one it was
originally referred to.
referee. (17c) 1. A type of master appointed by a court
to assist with certain proceedings. -In some jurisdic
tions, referees take testimony before reporting to the
court. See MASTER (2). [Cases: Federal Civil Procedure
<8=' 1890; Reference C-'J35-77.] 2. See judicial officer
(3) under OFFICER.
referee in bankruptcy. A federal judicial officer who
administers bankruptcy proceedings. -Abolished
by the Bankruptcy Reform Act of 1978, these referees
were replaced by bankruptcy judges. Also termed
register in bankruptcy. See bankruptcy judge under
JUDGE. [Cases: Bankruptcy C::02123.J
reference, n. (16c) 1. The act of sending or directing to
another for information, service, consideration, or
decision; specif., the act of sending a case to a master
or referee for information or decision. [Cases: Federal
Civil Procedure C::o1871; Reference <8=', 1.]
general reference. (18c |
Federal
Civil Procedure C::o1871; Reference <8=', 1.]
general reference. (18c) A court's reference ofa case to
a referee, usu. with all parties' consent, to decide all
issues offact and law. -The referee's decision stands
as the judgment of the court. [Cases: Reference
1.]
special reference. (1831) Acourt's reference ofa case to
a referee for decisions on specific questions offact.
The special referee makes findings and reports them
to the trial judge, who treats them as adVisory only
and not as binding decisions. [Cases: Reference C::o
1.]
2. An order sending a case to a master or referee for
information or decision. [Cases: Federal Civil Proce
dure ~~1888; Reference C:J 29.J 3. Mention or citation
of one document or source in another document or
source. [Cases: Contracts C::o166.J 4. Patents. Infonna
tion such as that contained in a publication, another
patent, or another patent application that a patent
examiner considers to be anticipatory prior art or proof
of unpredictability in the art that forms a basis for one
or more of an applicant's claims to be rejected. See
CITATION (4). [Cases: Patents ~-::>57.1.1 refer, vb.
reference case. See CASE.
reference committee. See resolutions committee under
COMMITTEE.
reference statute. See STATUTE.
referendarius (ref-d-ren-dair-ee-ds), n. [Law Latin]
Roman law. An officer who received petitions to the
emperor and who delivered answers to the petitioners.
See APOCRISARIUS.
referenda singula singulis. See REDDENDO SINGULA
SINGULIS.
referendum. (1847) 1. 1be process of referring a state
legislative act, a state constitutional amendment,
or an important public issue to the people for final
1394 referral
approval by popular vote. [Cases: Constitutional Law
<)::>540-574; Statutes <::=341-367.J 2. A vote taken by
this method. 3. lnt'llaw. An ambassador's request for
instructions on subject matter that the ambassador
does not have sufficient power to address. PI. referen
dums, referenda. Cf. INITIATIVE; PLEBISCITE.
referral. (1927) 'The act or an instance of sending or
directing to another for information, service, consid
eration, or decision <referral of the client to an employ
ment-law specialist> <referral of the question to the
board ofdirectors>.
referral sales contract. A dual agreement consisting
ofan agreement by the consumer to purchase goods
or services (usu. at an inflated price) and an agree
ment by the seller to compensate the consumer for
each customer (or potential customer) referred to the
seller. Also termed referral sales agreement. Cf.
PYRAMID SCHEME. [Cases: Antitrust and Trade Regu
lation (~23L]
"The problem inherent in a referral sales contract is the
problem inherent in a chain letter -the success of the
arrangement depends on an inexhaustible supply of cus
tamers. For example, if each buyer submits 25 names and
each of these 'referrals' becomes a buyer under a similar
agreement, the completion of the seventh round of refer
rals requires 6.1 trillion persons .... Both courts and leg
islatures have acted agai nst referral sales .... The Uniform
Consumer Credit Code prohibits the use of referral sales
schemes in which the rebate is conditioned on 'the occur
rence of an event after the time the consumer agrees to
buy or lease.' In other words, a referral scheme keyed to
the consumer merely furnishing names is not affected: a
referral scheme keyed to the consumer furnishing names
of people who actually become customers is prohibited."
David G. Epstein & Steve H. Nickles, Consumer Law in a
Nutshell 39 (2d ed. 1981).
refinancing, n. An exchange of an old debt for a new
debt, as by negotiating a different interest rate or term
or by repaying the existing loan with money acquired
from a new loan. -refinance, vb.
reformation (reL:lr-may-sh~n), n. (1829) An equitable
remedy by which a court will modify a written agree
ment to reflect the actual intent of the parties, usu. to
correct fraud or mutual mistake in the writing, such as
an incomplete property description in a deed . In cases
of mutual mistake, the actual intended agreement must
usu. be established by clear and convincing evidence.
In cases of fraud, there must be clear evidence of what
the agreement would have been but for the fraud. See
RECTIFICATION. [Cases: Reformation of Instruments
-reform, vb.
"The standard explanation of reformation is that the parties
had an actual agreement, and that the writing does not
reflect that agreement .... If the parties made a mistake
about the premises of their agreement, about some fact
in the world outside their word-processing machines, ref
ormation is not a solution. The court cannot reform the
contract because it cannot know what the parties would
have agreed to but for the mistake." Douglas Laycock,
Modern American Remedies 39 (3d ed. 2002).
reformation condition. See conditional bequest under
BEQUEST.
reformative punishment. See PUNISHMENT. reformatory, n. (1834) A penal institution in which
young offenders, esp. minors, are diSciplined and
trained or educated. Also termed reform school.
[Cases: Infants C=271.]
refoulement (ri-fowl-mant). [French] Expulsion or
return ofa refugee from one state to another. Cf. NON
REFOULEMENT.
refreshing memory. See PRESENT RECOLLECTION
REFRESHED.
refreshing recollection. See PRESENT RECOLLECTION
REFRESHED.
refugee. A person who flees or is expelled from a
country, esp. because of persecution, and seeks haven
in another country. Cf. displaced person under PERSON
(1); EVACUEE. [Cases: Aliens, Immigration, and Citizen
ship C=:>504-543.]
refugeeism. The state ofbeing a refugee.
refund, n. 1. The return of money to a person who
overpaid, such as a taxpayer who overestimated tax
liability or whose employer withheld too much tax from
earnings. [Cases: Internal Revenue <::='4950; Taxation
(;:;;>2773, 2. The money returned to a person who
overpaid. 3. The act of refinancing, esp. by replacing
outstanding securities with a new issue of securities.
refund, vb.
refund annuity. See ANNUITY.
refunding. See FUNDING (2).
refunding bond. See BOND (2).
re-funding bond. See BOND (3).
refusal. (15c) 1. The denial or rejection of something
offered or demanded <the lawyer's refusal to answer
questions was based on the attorney-client privilege>.
2. An opportunity to accept or reject something before
it is offered to others; the right or privilege of haVing
this opportunity <she promised her friend the first
refusal on her house>. See RIGHT OF FIRST REFUSAL
[Cases: Contracts 16.5; Sales C=24; Vendor and
Purchaser C=18(.5).]
refusal to deal. A company's decision not to do business
with another company . A business has the right to
refuse to deal only ifit is not accompanied by an illegal
restraint oftrade. [Cases: Antitrust and Trade Regula
tion <::=657.]
refusal to pay. See VEXATIOUS DELAY.
refus de justice (ruu-foo dJ zhoos-tees). See DENIAL OF
JUSTICE.
refutantia (ref-yoo-tan-shee-<'l), n. [Law Latin] Hist. An
acquittance or an acknowledgment renouncing all
future claims.
refute, vb. (16c) 1. To prove (a statement) to be false. 2.
To prove (a person) to be wrong. Cf. REBUT.
Reg. abbr. 1. REGGLATIOK. 2. REGISTER.
reg, n. (usu. pl.) (1904) Slang. REGULATION (3) <review not
only the tax code but also the accompanying regs>.
1395
regale episcoporum (ri-gay-Iee <l-pis-b-por-<lm). Eccles.
law. The temporal rights and privileges of a bishop.
regalem habens dignitatem (ri-gay-l<lm hay-benz dig-ni
tay-tam). [Law Latin] Hist. Having royal dignity.
regalia (ri-gay-Iee-<l). 1. Hist. Rights and privileges held
by the Crown under feudal law . Regalia is a shortened
form ofjura regalia.
regalia majora (m<l-jor-<l). [Latin "greater rights"] The
Crown's greater rights; the Crown's dignity, power,
and royal prerogatives, as distinguished from the
Crown's rights to revenues.
regalia minora (mi-nor-<l). [Latin "lesser rights") The
Crown's lesser rights; the Crown's lesser prerogatives
(such as the rights ofrevenue), as distinguished from
its royal prerogatives.
2. Hist. Feudal rights usu. associated with royalty, but
held by the nobility.
"Counties palatine are so called a palatio; because the
owners thereof, the earl of Chester, the bishop of Durham,
and the duke of Lancaster, had in those counties jura
regalia, as fully as the king hath in his palace ...." 1
William Blackstone, Commentaries on the Laws ofEng/and
113 (1765).
3. Emblems of royal authority, such as a crown or
scepter, given to the monarch at coronation. 4. Loosely,
finery or special dress, esp. caps and gowns worn at
academic ceremonies.
regard, n. (l4c) 1. Attention, care, or consideration
<without regard for the consequences>. 2. Hist. In
England, an official inspection ofa forest to determine
whether any trespasses have been committed. 3. Hist.
The office or position of a person appointed to make
such an inspection.
regardant (ri-gahr-d,mt), adj. His/. Attached or annexed
to a particular manor <a villein regardant>. See
VILLEIN.
regarder. An official who inspects a forest to determine
whether any trespasses have been committed. -Also
termed regarder ofthe forest.
reg. brev. abbr. REGISTRUM BREVIUM.
rege inconsulto (ree-jee in-k<ln-s;.ll-toh). [Latin] Hist. A
writ issued by a sovereign directing one or more judges
not to proceed, until advised to do so, in a case that
might prejudice the Crown.
regency. 1. The office or jurisdiction ofa regent or body
of regents. 2. A government or authority by regents. 3.
The period during which a regent or body of regents
governs.
regent. 1. A person who exercises the ruling power in a
kingdom during the minority, absence, or other dis
ability of the sovereign. 2. A governor or ruler. 3. A
member of the governing board of an academic insti
tution, esp. a state university. 4. Eccles. law. A master
or professor ofa college.
Reg. FD. See REGULATION PAIR DISCLOSURE.
reg. gen. abbr. REGULA GENERALIS. register
Regiam Majestatem (ree-jee-<lm maj-a-stay-t;}m). [Latin
"the (books of the) Royal Majesty"] Scots law. An
ancient collection of Scottish laws, so called from its
opening words . The four-book collection is generally
believed to be genuine, although its origins are Widely
disputed. It was partly copied from Glanville's treatise
De Legibus et Consuetudinibus A.ngliae, as appears from
the works' similarities and the fact that the Glanville
treatise opens with the words Regiam potestatem. It was
at one time believed to have been compiled by David I,
but this supposition is unfounded. Still others believed
that Edward I was responsible for the compilation as
part of his efforts to take over Scotland and assimi
late the laws ofthat country and England, but modern
scholars reject this view. It was probably compiled by
an unknown cleric shortly before 1320.
regicide (rej-<l-sId). 1. The killing or murder of a king.
2. One who kills or murders a king, esp. to whom one
is subject. regiddal, adj.
regime (r;}-zheem or ray-zheern). (18c) 1. A system of
rules, regulations, or government <the community
property regime>. 2. A particular administration or
government, esp. an authoritarian one. -Also spelled
regime.
international regime. A set of norms of behavior and
rules and policies that cover international issues and
that facilitate substantive or procedural arrangements
among countries.
legal regime. A set of rules, policies, and norms of
behavior that cover any legal issue and that facilitate
substantive or procedural arrangements for deciding
that issue.
regime dotal (ray~zheem doh-tahl). Hist. Civil law.
The right and power of a husband to administer his
wife's dotal property, the property being returned to
the wife when the marriage is dissolved by death or
divorce. See dotal property under PROPERTY.
regime en communaute (ray-zheem on koh~moo-noh
tay or kom-yoo-). Hist. Civil law. The community of
property between husband and wife arising auto
matically upon their marriage, unless excluded by
marriage contract.
regina (d-jI-n<l). (usu. cap.) 1. A queen. 2. The official
title of a queen. 3. In a monarchy ruled by a queen, the |
1. A queen. 2. The official
title of a queen. 3. In a monarchy ruled by a queen, the
prosecution side in criminal proceedings. Abbr. R.
Cf. REX.
regia assensu (ree-jee-oh ;}-sen-s[y]oo). [Latin] Eccles.
law. A writ by which a sovereign assents to the election
ofa bishop.
regional fund. See MUTUAL FUND.
regional securities exchange. See SECURITIES EX
CHANGE.
regional stock exchange. See regional securities exchange
under SECURITIES EXCHANGE.
register, n. (I6c) 1. A governmental officer who keeps
official records <each county employs a register of
1396 register
deeds and wills>. Cf. REGISTRAR. [Cases: Registers of
Deeds (;:::::>1.]
probate register. (1887) One who serves as the clerk of
a probate court and, in some jurisdictions, as a quasi
judicial officer in probating estates.
register ofdeeds. (I8c) A public official who records
deeds, mortgages, and other instruments affect
ing real property. -Also termed registrar ofdeeds;
recorder ofdeeds. [Cases: Registers of Deeds (;:::::> 1.]
register ofland office. Hist. A federal officer appointed
for each federal land district to take charge ofthe local
records and to administer the sale, preemption, or
other disposition of public lands within the district.
[Cases: Public Lands (;:::::>95.]
register of wills. (I8c) A public official who records
probated wills, issues letters testamentary and letters
ofadministration, and serves generally as clerk ofthe
probate court. _ The register ofwills exists only in
some states. [Cases: Executors and Administrators
2. See probate judge under JUDGE. 3. A book in which
all docket entries are kept for the various cases pending
in a court. Also termed (in sense 3) register ofactions.
4. Eccles. law. A record book ofsignificant events occur
ring in a parish, including marriages, births, chris
tenings, and burials. -Registers became required in
England around 1530. -Abbr. Reg.
register, vb. (l4c) 1. To enter in a public registry <register
a new car>. [Cases: Records (;:::::>9.] 2. To enroll formally
<five voters registered yesterday>. [Cases: Elections (;:::::>
95-119.J 3. To make a record of <counsel registered
three objections>. 4. (Of a lawyer, party, or witness)
to check in with the clerk of court before a judicial
proceeding <please register at the clerk's office before
entering the courtroom>. 5. To file (a new security
issue) with the Securities and Exchange Commission or
a similar state agency <the company hopes to register
its securities before the end ofthe year>. [Cases: Securi
ties Regulation (;:::::> 11.10-11.50.]
registered agent. See AGENT (2).
registered bond. 1. See BOND (2). 2. See BOND (3).
registered broker. See BROKER.
registered check. See CHECK.
registered corporation. See CORPORATION.
registered dealer. See DEALER.
registered mail. See MAIL.
registered mark. See registered trademark under TRADE
MARK.
registered offering. See OFFERING.
registered organization. An organization created under
state or federal law, for which the state or federal gov
ernment must maintain a public record showing
that the organization has been duly organized. UCC
9-1D2(a)(47). registered patent agent. See patent agent under AGENT
(2).
registered public offering. See registered offering under
OFFERING.
registered representative. See REPRESENTA TIVB.
registered security. See SECURITY.
registered stock. See registered security under
SECURITY.
registered tonnage. See REGISTER TONNAGE.
registered trademark. See TRADEMARK.
registered voter. See VOTER.
register in bankruptcy. See referee in bankruptcy under
REFEREE.
register ofactions. See REGISTER (3).
Register of Copyrights. The federal official who is in
charge of the U.S. Copyright Office, which issues
regulations and processes applications for copyright
registration. -Also termed (erroneously) Registrar
of Copyrights. [Cases: Copyrights and Intellectual
Property (;:::::>50.30.]
register of deeds. See REGISTER (1).
register ofland office. See REGISTER (1).
register of ships. Maritime law. A record kept by a
customs collector containing the names and owners
of commercial vessels and other key information
about the vessels. _ When a ship logs in with customs,
it receives a certificate of registry. Cf. REGISTRY (2).
[Cases: Shipping
Register ofthe Treasury. An officer ofthe U.S. Treasury
whose duty is to keep accounts of receipts and expen
ditures of public money, to record public debts, to
preserve adjusted accounts with vouchers and certifi
cates, to record warrants drawn on the Treasury, to sign
and issue government securities, and to supervise the
registry ofvessels under federallaw. 31 USCA 161.
register ofwills. See REGISTER (1).
register'S court. See COURT.
register tonnage. The volume of a vessel available for
commercial use, officially measured and entered in a
record for purposes of taxation. -Also termed regis
tered tonnage.
registrant. (1890) One who registers; esp., one who reg
isters something for the purpose ofsecuring a right or
privilege granted by law upon official registration.
registrar. (l7c) A person who keeps official records; esp.,
a school official who maintains academic and enroll
ment records. Cf. REGISTER (1).
registrarii liber (rej-d-strair-ee-I h-b..r). [LatinJ Hist. The
register's book in chancery, containing all decrees. -
Abbr. reg. lib.
registrarius (rej-;:J-strair-ee-;:Js). [Latin] Hist. A registrar
or register; a notary.
Registrar of Copyrights. See REGISTER OF COPY
RIGHTS.
1397
registrar of deeds. See register ofdeeds under REGISTER
(1).
registration, n. 1. The act of recording or enrolling <the
county clerk handles registration of voters>. [Cases:
Elections C=>95-119.]
criminal registration. The requirement in some com
munities that any felon who spends any time in
the community must register his or her name with
the police. Since the late 19805, many states have
adopted strict registration laws for convicted sex
offenders. See MEGAN'S LAW. [Cases: Criminal Law
C=> 1222.1; Mental Health C=>469.]
special registration. Voter registration for a particular
election only.
2. Securities. The complete process ofpreparing to sell
a newly issued security to the public <the security is
currently in registration>. [Cases: Securities Regulation
11.10-11.50.] register, vb.
shelfregistration. Registration with the SEC ofsecuri
ties to be sold over time, the purpose being to avoid
the delays and market uncertainties of individual
registration.
"It is generally contemplated that the entire allotment of
securities covered by a registered offering will be made
available for purchase on the effective date. This is not
always the case, however. For example, insiders, promot
ers or underwriters might receive securities directly from
the issuer with an intent to resell at a later date.... [IJ
t may be desirable to get a debt offering all ready to go
but wait for a propitious moment to release it. These and
other delayed offerings have led to what is known as shelf
registration. In a shelf registration the registration state
ment is filed but the securities are put on the shelf until the
manner and date of the offering are determined." Thomas
Lee Hazen, The Law of Securities Regulation 3.8, at 119
(2d ed. 1994).
registration and community-notification law. See
MEGAN'S LAW.
registration-based quorum. See QUORUM.
registration rights. Securities. A securities owner's enti
tlement to have the securities registered for public sale
or to participate in a public sale or resale of securities
by the issuer or by another securities owner.
demand registration rights. A securities holder's right
to force the issuing company to register all or part of
the securities so that the holder can resell them.
piggyback registration rights. A securities holder's
option to require the issuing company to include all
or part of the holder's securities in a registration of
other securities ofthe same class when a third party,
such as a lender, requests the registration.
registration statement. A document containing detailed
information required by the SEC for the public sale
of corporate securities . The statement includes the
prospectus to be supplied to prospective buyers. See
PROSPECTUS. [Cases: Securities Regulation C:::;25.10
25.35.J
registration system. Patents. A patent system in which
an invention is given patent protection when it is regula
registered, without being subjected to official exami
nation. The United States operated under a registra
tion system from 1790 until 1793. Cf. EXAMINATION
SYSTEM.
registrum brevium (ri-jis-trdm bree-vee-dm). [Latin)
Hist. The register of writs. Abbr. reg. brev.
registrum judicale (ri-jis-trdm joo-di-kay-Iee). [Latin]
Hist. The register of judicial writs. Abbe. reg. judo
registrum originale (ri-jis-tr<lm d-rij-<l-nay-lee). [Latin]
Hist. The register oforiginal writs. -Abbr. reg. orig.
registry. 1. See probate judge under jeDGE. 2. REGISTER
(2). 3. Maritime law. The list or record ofships subject to
a particular country's maritime regulations . A ship is
listed under the nationality of the flag it flies. See CER
TIFICATE OF REGISTRY. Cf. REGISTER OF SHIPS; enroll
ment ofvessels under ENROLLMENT. [Cases: Shipping
C=>5.]
reg.jud. abbr. REGISTRUM JUDICALE.
reg. lib. abbr. REGISTRARII LIBER.
regnal (reg-n<ll), adj. Ofor relating to a monarch's reign
<the regnal years of Henry II are 1154-1159>.
regnal year. A year of a monarch's reign, marked from
the date or anniversary of the monarch's accession .
Before 1962, British statutes were cited by the regnal
years in which they were enacted. Since 1962, British
statutes have been cited by calendar year rather than
regnal year. (A table of British regnal years is listed in
Appendix F ofthis book.)
regnant (reg-ndnt), adj. Exercising rule, authority, or
influence; reigning <a queen regnant>.
reg. orig. abbr. REGISTRUM ORIGINALE.
reg. pl. abbr. REGULA PLACITANDI.
regrant, n. The act or an instance of granting some
thing again; the renewal of a grant (as ofproperty).
regrant, vb.
regrating, n. Hist. 1. The purchase ofmarket commodi
ties (esp. necessary provisions) for the purpose of
reselling them in or near the same market at a higher
price. 2. The resale of commodities so purchased. In
England, regrating was a criminal offense. regrater,
n.-regrate, vb.
"Regrating is described by [5 & 6 Edw. 6, ch. 14] to be the
buying of corn, or other dead Victual, in any market, and
selling them again in the same market, or within four miles
of the place. For this also enhances the price of the provi
sions, as every successive seller must have a successive
profit." 4 William Blackstone, Commentaries on the Laws
of England 158 (1769).
regress, n. (14c) 1. The act or an instance of going or
coming back; return or reentry <free entry, egress, and
regress>. 2. The right or liberty of going back; reentry.
Cf. EGRESS; INGRESS. 3. Hist. The right to repayment or
compensation; recourse. -regress (ri-gres), vb.
regressive tax. See TAX.
regula (reg-Yd-Id). [Latin] A rule.
1398 regula Catoniana
regula generalis (reg-ya-l;~ jen-a-ray-lis). [Latin] A
general rule, esp. of a court. -Abbr. reg. gen.; r.g. PI.
regulae generales.
regula placitandi (reg-ya-la plas-a-tan-dI). [Latin]
Hist. A rule of pleading. -Abbr. reg. pl.
regula regulans (reg-ya-la reg-y;l-lanz). [Law Latin]
Hist. The governing rule.
regula Catoniana (reg-ya-la kay-toh-nee-ay-na or
ka-toh-). [Latin "rule attributed to Cato"] Roman law.
The principle that the lapse oftime does not cure some
thing void at the outset. This principle, named for
the Roman legal scholar Cato, was ordinarily used to
set aside a bequest when the testator did not have the
capacity to make the bequest.- Also termed Catoni
ana regula.
regular army. See ARMY.
regular course ofbusiness. See COURSE OF BUSINESS.
regular election. See general election (1) under ELECTION
(3).
regular income. See INCOME.
regular life policy. See life policy under INSUR |
under ELECTION
(3).
regular income. See INCOME.
regular life policy. See life policy under INSURANCE
POLlCY.
regular meeting. See MEETING.
regular process. See PROCESS.
regular session. See SESSION (1).
regular term. See TERM (5).
regular use. See USE (1).
regulation, n. (l7c) l. The act or process ofcontrolling by
rule or restriction <the federal regulation ofthe airline
industry>.
self-regulation. The process by which an identifiable
group of people, such as licensed lawyers, govern or
direct their own activities by rules; specif., an orga
nization's or industry's control, oversight, or direc
tion of itself according to rules and standards that it
establishes. Self-regulation is often subject to the
oversight of various governmental agencies, such as
the Securities Exchange Commission and the Com
modities Futures Trading Commission.
2. BYLAW (1) <the CEO referred to the corporate regula
tion>. 3. A rule or order, having legal force, usu. issued
by an administrative agency <Treasury regulations
explain and interpret the Internal Revenue Code>.
Abbr. (usu. cap.) reg. Also termed (in sense 3) agency
regulation; subordinate legislation; delegated legislation.
See MERIT REGULATION. [Cases: Administrative Law
and Procedure regulatory, regulable,
adj. -regulate, vb.
proposed regulation. A draft administrative regula
tion that is circulated among interested parties for
comment. Abbr. prop. reg. [Cases: Administrative
Law and Procedure (;::-:>392.]
Regulation A. An SEC regulation that exempts stock
offerings of up to $5 million from certain registration requirements. [Cases: Securities Regulation
IS.1S.J
Regulation D. An SEC regulation that exempts certain
stock offerings (such as those offered by private sale)
from registration under the Securities Act of 1933.
[Cases: Securities Regulation 18.11.]
Regulation Fair Disclosure. An October 2000 SEC rule
requiring companies to disclose material information
to all investors at the same time. The regulation is
intended to prevent some investors from receiving
advance information about earnings, mergers and
acquisitions, product discoveries, changes in auditors,
and any other information that a reasonable investor
would consider in making an investment decision.
Often shortened to Regulation FD; Reg. FD.
Regulation PD. See REGULATION FAIR DISCLOSURE.
Regulation J. A Federal Reserve Board regulation that
governs the collection of checks by and the transfer
of funds through member banks. [Cases: Banks and
Banking C=IS8.5, 356.]
Regulation Q. A Federal Reserve Board regulation that
sets interest-rate ceilings and regulates advertising of
interest on savings accounts . The Banking Act of
1933 is the basis ofthis regulation, which applies to all
commercial banks. [Cases: Banks and Banking
132,359.]
Regulation T. A Federal Reserve Board regulation that
limits the amount ofcredit that a securities broker or
dealer may extend to a customer, and that sets initial
margin requirements and payment rules for securities
transactions . The credit limit and margin rules usu.
require the customer to provide between 40 and 60% of
the purchase price. [Cases: Securities Regulation
45.11.]
Regulation U. A Federal Reserve Board regulation that
limits the amount of credit that a bank may extend to
a customer who buys or carries securities on margin.
Securities Regulation C=45.26.]
Regulation X. A HUD regulation that implements the
provisions of the Real Estate Settlement Procedures
Act. See REAL ESTATE SETTLEMENT PROCEDURES ACT.
[Cases: Consumer Credit C:::>50.]
Regulation Z. A Federal Reserve Board regulation that
implements the provisions of the federal Consumer
Credit Protection Act for member banks. See CONSUMER
CREDIT PROTECTION ACT. [Cases: Consumer Credit
32,50,51.]
regulatory agency. See AGENCY (3).
regulatory offense. See OFFENSE (1).
regulatory-out clause. See FERC-OUT CLAUSE.
regulatory search. See administrative search under
SEARCH.
rehabere facias seisinam. See HABERE FACIAS SEISINAM.
rehabilitation, n. (1940) 1. Criminal law. The process of
seeking to improve a criminal's character and outlook
so that he or she can function in society without
1399
committing other crimes <rehabilitation is a tradi
tional theory of criminal punishment, along with
deterrence and retribution>. Cf. DETERRE~CE; RETRI
BUTION (1). [Cases: Sentencing and Punishment
45.] 2. Evidence. The restoration ofa witness's credibil
ity after the witness has been impeached <the inconsis
tencies were explained away during the prosecution's
rehabilitation of the witness>. [Cases: Witnesses
410-416.] 3. Bankruptcy. The process of reorganizing
a debtor's financial affairs -under Chapter 11, 12, or
13 of the Bankruptcy Code -so that the debtor may
continue to exist as a financial entity, with creditors sat
isfying their claims from the debtor's future earnings
<the corporation's rehabilitation was successful>.
Also termed debtor rehabilitation. Cf. LIQUIDATION (4).
[Cases: Bankruptcy(:=::: 3501,3671, 3701.] rehabilita
tive, ad). -rehabilitate, vb.
rehabilitative alimony. See ALIMOKY.
rehearing. (I7c) A court's second or subsequent hearing
ofa case, a motion, or an appeal, usu. to consider an
alleged error or omission in the court's judgment or
opinion <the appellant, dissatisfied with the appellate
court's ruling, filed a motion for rehearing>. -Abbr.
reh'g. Cf. REARGUMENT. [Cases: Administrative Law
and Procedure (:=::::480; Appeal and Error (:=:::829;
Criminal Law (;::::: 1133; Federal Civil Procedure (:=:::
928; Federal Courts (;:~744; Motions (:=:::39.J
reh'g. abbr, REHEARING.
rei (ree-I), pl. REUS,
reif (reef). Scots law. Robbery,
reification (ree-a-fi-kay-sh.m), n. (1846) 1. Mental con
version of an abstract concept into a material thing.
2. Civil procedure. Identification ofthe disputed thing
in a nonpersonal action and attribution of an in-state
situs to it for jurisdictional purposes. 3. Commercial
law. Embodiment of a right to payment in a writing
(such as a negotiable instrument) so that a transfer of
the writing also transfers the right. reify (ree-i"l-fr
or ray-), vb.
rei interitus (ree-I in-ter-a-tas). [Latin] Hist.The destruc
tion of a thing.
rei interventus (ree-l in-ti"lr-ven-ti"ls), n. [Latin "things
intervening"] Actions or efforts by one party to a
contract with the consent ofthe other party, so that
the one party has made a partial performance and the
other cannot repudiate without being in breach.
reimbursement, n. 1. Repayment. 2. Indemnification.
reimburse, vb,
reimbursement alimony. See ALIMONY.
re infecta (ree in-fek-ti"l). [Latin] Hist. The thing not
having been done; the performance having failed.
reinscription, n, Civil law. A second or renewed recor
dation of a mortgage or other title document. [Cases:
Mortgages <:-~'96.] -reinscribe, vb.
reinstate, vb. To place again in a former state or position;
to restore <the judge reinstated the judgment that had
been vacated>. reinstatement, n. reinsured
reinsurance. Insurance ofall or part ofone insurer's risk
by a second insurer, who accepts the risk in exchange
for a percentage of the original premium, -Also
termed reassurance. [Cases: Insurance (::::::>3593.]
'The term 'reinsurance' has been used by courts, attor
neys, and textwriters with so little discrimination that
much confusion has arisen as to what that term actually
connotes. Thus, it has so often been used in connection
with transferred risks, assumed risks, consolidations and
mergers, excess insurance, and in other connections that
it now lacks a cleancut field of operation. Reinsurance, to
an insurance lawyer, means one thing only the ceding
by one insurance company to another of all or a portion of
its risks for a stipulated portion of the premium, in which
the liability of the reinsurer is solely to the reinsured, which
is the ceding company, and in which contract the ceding
company retains all contact with the original insured, and
handles all matters prior to and subsequent to loss," 13A
John Alan Appleman &Jean Appleman, Insurance Law and
Practice 7681, at 479-80 (1976).
"The laying off of risk by means of reinsurance traditionally
serves three basic purposes, First, reinsurance can increase
the capacity of the insurer to accept risk. The insurer may
be enabled to take on larger individual risks, or a large
number of smaller risks, or a combination of both....
Secondly, reinsurance can promote financial stability by
ameliorating the adverse consequences of an unexpected
accumulation of losses or of single catastrophic losses,
because these will, at least in part, be absorbed by rein
surers. Thirdly, reinsurance can strengthen the solvency
of an insurer from the point of view of any regulations
under which the insurer must operate which provide for a
minimum 'solvency margin,' generally expressed as a ratio
of net premium income over capital and free reserves."
P.T. O'Neill & J.w. Woloniecki, The Law of Reinsurance in
England and Bermuda 4 (1998),
excess reinsurance. Reinsurance in which a reinsurer
assumes liability only for an amount ofinsurance that
exceeds a specified sum. See excess insurance under
INSURANCE.
facultative reinsurance. Reinsurance of an individ
ual risk at the option (the "faculty") ofthe reinsurer.
[Cases: Insurance (:=:::')3593.J
flat reinsurance. Reinsurance (esp. of marine insur
ance) that cannot be canceled or modified.
treaty reinsurance. Reinsurance under a broad agree
ment of all risks in a given class as soon as they are
insured by the direct insurer. [Cases: Insurance (';=)
3593.J
reinsurance treaty. A contract ofreinsurance (usu.long
term) covering different classes or lines of business of
the reinsured (such as professional liability, property,
etc.) and obligating the reinsurer in advance to accept
the cession ofcovered risks . Rather than receive indi
vidual notice of each specific claim covered, the treaty
reinsurer will generally receive periodic reports provid
ing basic information on the losses paid. -Also termed
treaty ofreinsurance, See BORDEREAU. Cf. FACULTATIVE
CERTIFICATE. [Cases: Insurance (;=:>3593.J
reinsured, n. An insurer that transfers all or part ofa risk
it underwrites to a reinsurer, usu. along with a percent
age of the original premium. -Also termed cedent;
cedant. [Cases: Insurance (;::=::7' 3593.]
1400 reinsurer
reinsurer. An insurer that assumes all or part of a risk
underwritten by another insurer, usu. in exchange for
a percentage of the original premium. [Cases: Insur
ance (;::>3593.]
reinvested dividend. See DIVIDEND.
reinvestment. L The addition of interest earned on a
monetary investment to the principal sum. 2. A second,
additional, or repeated investment; esp., the application
ofdividends or other distributions toward the purchase
ofadditional shares (as ofa stock or a mutual fund).
reissuable error. Patents. A type of nondeceptive mistake
in a patent that may be corrected in a reissue patent. 35
USC A 252. [Cases: Patents
reissuable note. See NOTE (1).
reissne. 1. An abstractor's certificate attesting to the
correctness ofan abstract. - A reissue is an important
precaution when the abstract comprises an original
abstract brought down to a certain date and then several
later continuations or extensions. [Cases: Abstracts of
Title 2. See reissue patent under PATENT (3).
reissue patent. See PATENT (3).
rei suae providus (ree-I s[y]oo-ee prJ-vI-dJs). [Latin]
Hist. Careful ofone's property.
"Interdiction, whether voluntary or judicial, can only be
recalled or removed by an interlocutor of Court, and it
affords a good ground on which to apply for the removal
of the restraint imposed by interdiction that the interdicted
has become rei suae providus." John Trayner, Trayner's
Latin Maxims 546-47 (4th ed. 1894).
REIT (reet). abbr. REAL-ESTATE INVESTMENT TRUST.
reject, assume or. See ASSUME OR REJECT.
rejecting, n. A parent's or caregiver's pattern ofrefusing
to acknowledge a child's worth or legitimate needs. Cf.
ISOLATING; IG:.!ORI:.!G.
rejection. (16c) L A refusal to accept a contractual
offer. [Cases: Contracts ~21.12. A refusal to accept
tendered goods as contractual performance. _ Under
the UCC, a buyer |
.12. A refusal to accept
tendered goods as contractual performance. _ Under
the UCC, a buyer's rejection of nonconforming goods
mU$t be made within a reasonable time after tender or
delivery, and notice of the rejection must be given to
the seller. [Cases: Sales C=>168(4),179(6).] Cf. REPUDIA
TION (2); RESCISSION; REVOCATION (1). 3. Parliamen
tary law. Failure of adoption or ratification. See LOST
(3).4. Patents. A patent examiner's finding in an office
action that a claim in an application is unpatentable.
Cf. OBJECTION (4); RESTRICTION (4). [Cases: Patents C:::;, ,
108.) reject, vb.
aggregation rejection. Rejection ofa patent claim on
the ground that it is a list of unrelated elements that,
taken together, do not assert a claim. [Cases: Patents
alternativeness rejection. Rejection of a patent claim
on the ground that it seeks a broad monopoly on the
invention as disclosed and on other unspecified varia
tions. -For example, a claim using a phrase such as
"and similar materials" would probably be too broad
to be allowed. [Cases: Patents C=>124.] duplicate-claiming rejection. The nonart rejection of
a patent claim because it is not substantially different
from another claim.
exhausted-combination rejection. See old-combina
tion rejection.
failure-to-disclose-best-mode rejection. Rejection ofa
patent application on the ground that the inventor has
not disclosed the best way to use the invention. -To
warrant rejection, the examiner must find deliberate
concealment or a description so poorly drafted as to
amount to concealment. [Cases: Patents
final rejection. A patent examiner's finding, in a second
or subsequent office action, that a claim in an applica
tion is unpatentable on the merits. - A final rejection
is made in the final office action. Despite the mislead
ing name, a final rejection need not end the prosecu
tion. The rejection can be appealed, or the application
can be reexamined or continued in another applica
tion. A rejection may also be appealed to the Board of
Patent Appeals and Interferences. A decision of that
Board may be reviewed by the U.S. District Court
for the District of Columbia or appealed to the U.S.
Court of Appeals for the Federal Circuit. 35 USCA
141-45. [Cases: Patents C=> 108.)
formal rejection. Rejection of a patent claim because
of an error in format rather than substance. _ A
formal rejection is actually an objection rather than
a rejection, since it requires no substantive change in
the claim. Also termed nonart rejection. [Cases:
Patents 104.]
functional rejection. Rejection ofa patent claim on the
grounds that it broadly claims a function but does not
disclose enough structure to account for achieving
that function. Cf. FUNCTIONAL LIMITATION. [Cases:
Patents 101(8).]
inaccuracy rejection. Rejection ofa patent claim on the
ground that it is not consistent with the description.
incompleteness rejection. Rejection ofa patent applica
tion on the ground that an element ofthe device or a
step in the process has been left out.
interference-estoppel rejection. Rejection of a patent
claim on the ground that the applicant failed to bring
the claim into a previous interference contest where
its priority could have been determined. [Cases:
Patents ~112.4.]
judicially-created-double-patenting rejection. Rejec
tion of a patent application on the ground that the
invention is an obvious variation ofanother patented
invention by the same inventor. -Also termed
obViousness-type double-patenting rejection. [Cases:
Patents (;:::' 120.J
lack-of-antecedent-basis rejection. Rejection of a
patent application on the ground that a reference
either in the specification or in the claim is missing.
lack-of-enablement rejection. See nonenablement
rejection.
1401
lack-of-utility rejection. Rejection ofa patent claim on
the ground that the invention is inoperative, frivolous,
fraudulent, or against the public interest. The classic
examples are perpetual-motion machines (inopera
tive), cures for the common cold (frivolous because
believed impossible, and also probably fraudulent),
and gambling devices (formerly seen as against the
public interest). [Cases: Patents (;::::46.)
new-matter rejection. Rejection of a patent claim on
the ground that an amendment contains new matter.
[Cases: Patents (;:::: 109.]
nonart rejection. Seeformal rejection.
nonenablement rejection. Rejection ofa patent appli
cation claim on the ground that its specification does
not teach enough to enable a person skilled in the art
to make and use the invention. -Also termed lack
of-enablement rejection. [Cases: Patents (;::::99.J
obviousness-type double-patenting rejection. See judi
cially created double-patenting rejection.
old-combination rejection. Rejection ofa patent claim
on the ground that, despite the fact that one or more
elements perform in a different way, all the elements
perform the same function as a previously patented
invention. The improved element may be patent
able, but the combination may not be. Also termed
exhausted-combination rejection. [Cases: Patents
26(1.1).]
prolixity rejection. Rejection ofa patent application on
the ground that the language is so wordy and tedious
that it tends more to hide than to disclose the inven
tion.
rejection on issues ofinterference. Rejection of a patent
claim on the ground that the applicant has lost a final
judgment of priority regarding the claim in an inter
ference contest. [Cases: Patents <~=J112.4.]
same-invention double patenting rejection. See statu
tory double patenting rejection.
Section 101 rejection. Rejection of a patent application
on the ground that it is based on nonstatutory subject
matter. 35 USCA 101.
Section 102 rejection. Rejection of a patent application
for lack of novelty. 35 USCA 102. [Cases: Patents
Section 103 rejection. Rejection of a patent applica
tion for obviousness. 35 USCA 103. [Cases: Patents
16.1.]
Section 112 rejection. See vague-and-indefinite rejec
tion.
shotgun rejection. Slang. Denial of all or almost all
claims in a patent application by the U.S. Patent and
Trademark Office, esp. in the first office action.
statutory double patenting rejection. Rejection of a
patent application on the ground that the invention is
the same subject matter as an already-patented inven
tion by the same inventor . This rejection is based on relationship
35 USCA 101. -Also termed same-invention double
patenting rejection. [Cases: Patents (;:::: 120.]
undue-breadth rejection. Rejection of a patent claim
on the ground that it seeks a patent monopoly on
more than the invention . For instance, a functional
claim is too broad ifit purports to include every other
possible way ofaccomplishing that function. A claim
on a chemical is more likely to be rejected for undue
breadth than a claim on a machine, because future
discoveries are less predictable. [Cases: Patents
124.J
undue-multiplicity-of-claims rejection. Rejection of
a patent application on the ground that it makes an
unreasonable number of claims. See AGGREGATION
OF CLAIMS. [Cases: Patents ~124.)
vague-and-indefinite rejection. Rejection of a patent
claim on the ground that a person of ordinary skill in
the art could not clearly understand it. For example,
terms used in more than one sense could make the
meaning unclear. Also termed Section 112 rejec
tion. [Cases: Patents (;:::: 101(6).]
rejoinder, n. (15c) Common-law pleading. The defen
dant's answer to the plaintiff's reply (or replication).
[Cases: Pleading (';.~ 183.) rejoin, vb.
related good. Trademarks. A good that infringes a trade
mark because it appears to come from the same source
as the marked good, despite not competing with the
marked good. For example, a cutting tool named
"McKnife" might infringe the "McDonald's" trademark
as a related good.
related proceeding. Bankruptcy. A proceeding that
involves a claim that will affect the administration
of the debtor's estate (such as a tort action between
the debtor and a third party), but that does not arise
under bankruptcy law and could be adjudicated in a
state court . A related proceeding must be adjudicated
in federal district court unless the parties consent to
bankruptcy-court jurisdiction or unless the district
court refers the matter to the bankruptcy court or to
state court. -Also termed noncore proceeding. Cf.
CORE PROCEEDING (1). [Cases: Bankruptcy (;:::: 2043
2063.]
related right. See NEIGHBORING RIGHT.
relation. See RELATIVE.
relation back, n. (ISc) 1. The doctrine that an act done at
a later time is, under certain circumstances, treated as
though it occurred at an earlier time . In federal civil
procedure, an amended pleading may relate back, for
purposes ofthe statute oflimitations, to the time when
the original pleading was filed. Fed. R. Civ. P. 15(c).
lCases: Limitation of Actions 127.] 2. A judicial
application ofthat doctrine. -Also termed doctrine of
relation back. Cf. NUNC PRO TUNC. relate back, vb.
relationship. The nature ofthe association between two
or more people; esp., a legally recognized association
that makes a difference in the participants' legal rights
and duties ofcare.
1402 relationship rape
attorney-client relationship. 1he formal legal repre
sentation of a person by a lawyer. -An attorney-client
relationship may be found, for disciplinary purposes,
without any formal agreement. [Cases: Attorney and
Client C:::c64.]
confidential relationship. 1. See fidUciary relation
ship. 2. Trade secrets. A relationship in which one
person has a duty to the other not to disclose pro
prietary information. - A confidential relationship
can be expressly established, as by the terms of an
employment contract. It can also be implied when
one person knows or should know that the informa
tion is confidential, and the other person reasonably
believes that the first person has consented to keep the
information confidential. A confidential relationship
might be implied, for instance, between two people
negotiating the sale of a business. [Cases: Antitrust
and Trade Regulation Labor and Employ
ment C:::c304.]
doctor-patient relationship. The association between
a medical provider and one who is being diagnosed
or treated. _ The relationship imposes a duty on the
doctor to ensure that the patient gives informed
consent for treatment. Health (':::=>576, 615.]
employer-employee relationship. The association
between a person employed to perform services in
the affairs of another, who in turn has the right to
control the person's physical conduct in the course of
that service. -At common law, the relationship was
termed "master-servant." That term is still used often,
but "employer-employee" dominates in modern legal
usage. [Cases: Labor and Employment C:::c 23.]
fiducial relationship. See trust relationship.
fiduciary relationship. (l846) A relationship in which
one person is under a duty to act for the benefit of
another on matters within the scope of the relation
ship. _ Fiduciary relationships such as trustee
beneficiary, guardian-ward, principal-agent, and
attorney-client -require an unusually high degree
of care. Fiduciary relationships usu. arise in one of
four situations: (1) when one person places trust
in the faithful integrity of another, who as a result
gains superiority or influence over the first, (2) when
one person assumes control and responsibility over
another, (3) when one person has a duty to act for
or give advice to another on matters falling within
the scope of the relationship, or (4) when there is a
specific relationship that has traditionally been rec
ognized as involving fiduciary duties, as with a lawyer
and a client or a stockbroker and a customer. -Also
termed fidUciary relation; confidential relationship.
Cf. special relationship. [Cases: Fraud <8:::>7.]
master-servant relationship. The association between
one in authority and a subordinate, esp. between an
employer and an employee . At common law, this
term also designated the husband-wife relationship
for purposes of analyzing loss of consortium, but
that usage is now obsolete. Also termed employer-employee relationship. See MASTER AND SERVANT.
[Cases: Labor and Employment
parent-child relationship. The association between an
adult and a minor in the adult's care, esp. an offspring
or an adoptee. _ Ihe relationship imposes a high duty
of care on the adult, including the duties to support,
to rescue, to supervise and control, and to educate.
lCases: Parent and Child
professional relationship. An association that involves
one person's reliance on the other person's specialized
training. _ Examples include one's relationship with a
lawyer, doctor, insurer, banker, and the like.
special relationship. A nonfiduciary relationship
having an element of trust, arising esp. when one
person trusts another to exercise a reasonable degree
of care and the other knows or ought to know about
the reliance. Cf. fidUciary relationship. [Cases: Negli
gence 220.]
trust relationship. An association based on one person's
reliance on the other person's specialized training.
Also termed fiducial relationship. [Cases: Fraud~"")
7.]
relationship rape. See RAPE.
relative, n. (14c) A person connected |
")
7.]
relationship rape. See RAPE.
relative, n. (14c) A person connected with another by
blood or affinity; a person who is kin with another.
Also termed relation; kinsman. Cf. NEXT OF KIN (1).
blood relative. (1863) One who shares an ancestor with
another.
collateral relative. (18c) A relative who is not in the
direct line of descent, such as a cousin. [Cases:
Descent and Distribution C:::c 32-41.]
relative by affinity. (1821) A person who is related
solely as the result of a marriage and not by blood
or adoption. _ A person is a relative by affinity (1)
to any blood or adopted relative ofhis or her spouse,
and (2) to any spouse ofhis or her blood and adopted
relatives. Based on the theory that marriage makes
two people one, the relatives of each spouse become
the other spouse's relatives by affinity. See AFFINITY.
[Cases: Descent and Distribution C:::c21; Wills
502.]
relative ofthe halfblood. A collateral relative who
shares one common ancestor. - A half brother, for
example, is a relative ofthe halfblood. See halfblood
under BLOOD. [Cases: Descent and Distribution
35; Wills C::~506(2).]
relative confession. See CONFESSION.
relative-convenience doctrine. The principle that an
injunction or other equitable relief may be denied if
granting it would cause one party great inconvenience
but denying it would cause the other party little or no
inconvenience. [Cases: Injunction C:::c 12,23,138.15.]
relative fact. See FACT.
relative nullity. See NULLITY.
relative power. See POWER (5).
1403 releaser
relative-responsibility statute. A law requiring adult
children to support or prOVide basic necessities for their
indigent elderly parents. [Cases: Parent and Child
4.]
relative right. See RIGHT.
relative simulated contract. See CONTRACT.
relator. (17c) 1. The real party in interest in whose name
a state or an attorney general brings a lawsuit. See EX
REL. [Cases: Attorney General C:>9.] 2. lhe applicant
for a writ, esp. a writ of mandamus, prohibition, or quo
warranto. [Cases: Mandamus ~-:>144; Prohibition C:>
19; Quo Warranto C:>30.]3. A person who furnishes
information on which a civil or criminal case is based;
an informer.
relatrix (ri-Iay-triks). Archaic. A female relator.
relaxatio (ree-Iak-say-shee-oh). [Law Latin] Hist. An
instrument by which one relinquishes a right or claim
to another; a release.
release, n. (14c) 1. Liberation from an obligation, duty,
or demand; the act of giving up a right or claim to the
person against whom it could have been enforced <the
employee asked for a release from the noncompete
agreement>. Also termed discharge; surrender. 2.
The relinquishment or concession of a right, title, or
claim <Benson's effective release of the claim against
Thompson's estate precluded his filing a lawsuit>.
[Cases: Release C:> 1.] 3. A written discharge, acquit
tance, or receipt; specif., a writing -either under seal
or supported by sufficient consideration stating that
one or more of the worker's contractual or compen
satory rights are discharged <Jones Signed the release
before accepting the cash from Hawkins>. _ Beneficia
ries ofan estate are routinely required to sign a release
discharging the estate from further liability before the
executor or administrator distributes the property. 4.
A written authorization or permission for publication
<the newspaper obtained a release from the witness
before printing his picture on the front page>. 5. 1be act
of conveying an estate or right to another, or oflegally
disposi ng ofit <the release ofthe easement on February
14>.6. A deed or document effecting a conveyance
<the legal description in the release was defective>.
See deed ofrelease under DEED. [Cases: Deeds
7. The action of freeing or the fact of being freed from
restraint or confinement <he became a model citizen
after his release from prison>. 8. A document giving
formal discharge from custody <after the sheriff Signed
the release, the prisoner was free to go>. -release,
vb.
conditional release. (lSc) 1. A discharge from an obli
gation based on some condition, the failure ofwhich
defeats the release. 2. An early discharge of a prison
inmate, who is then subject to the rules and regula
tions ofparole. [Cases: Prisons C:>24S.]
marginal release. Property. An entry made in the
margin ofa property record by the recorder ofdeeds
to show that a claim against the property has been
satisfied. mutual release. A simultaneous exchange ofreleases of
legal claims held by two or more parties against each
other. [Cases: Prisons C:> 14.]
partial release. (lS37) A release of a portion of a
creditor's claims against property; esp., a mortgag
ee's release of specified parcels covered by a blanket
mortgage. [Cases: Mortgages C:>310.]
Pierringer release. A release that allows a defendant in
a negligence suit to settle with the plaintiff for a share
of the damages and insulates the settling defendant
against contribution claims by nonsettling defen
dants. -'This type of release was first described in
Pierringer v. Hoger, 124 N.W.2d 106, 110-11 (Wis.
1963). It is used in some jurisdictions that do not have
contribution statutes. ~Also spelled (incorrectly)
Perringer release. [Cases: Release (~29(4).]
study release. (1970) A program that allows a prisoner
to be released for a few hours at a time to attend classes
at a nearby college or technical institution. Also
termed study furlough. [Cases: Convicts (;~2.]
unconditional release. (1871) The final discharge of a
prison inmate from custody. [Cases: Release C=)14.J
9. Environmental law. The injection ofcontaminants or
pollutants into the environment as a side effect ofoper
ations such as manufacturing, mining, or farming.
release clause. Real estate. 1. A blanket-mortgage provi
sion that enables the mortgagor to obtain a release from
the mortgage ofa specific portion ofthe property upon
paying a specific (usu. more than pro rata) portion of
the loan. -Mortgagees commonly include a clause that
disallows a partial release ifthe mortgagor is in default
on any part of the mortgage. [Cases: Mortgages
310.] 2. A purchase-agreement provision that allows a
seller who has accepted an offer containing a contin
gency to continue to market the property and accept
other offers. _ Ifthe seller accepts another buyer's offer,
the original buyer typically has a specified time (such as
72 hours) to waive the contingency (such as the sale of
the buyer'S present house) or to release the seller from
the agreement. [Cases: Vendor and Purchaser
release deed. See DEED.
releasee. 1. One who is released, either phYSically or by
contractual discharge. [Cases: Release C:>26.]2. One
to whom an estate is released.
release ofmortgage. A written document that discharges
a mortgage upon full payment by the borrower and
that is publicly recorded to show that the borrower has
full equity in the property. [Cases: Mortgages C:>309,
314.]
release on recoguizance. (1913) The pretrial release of
an arrested person who promises, usu. in writing but
without supplying a surety or posting bond, to appear
for trial at a later date. -Abbr. ROR. -Also termed
release on own recognizance. See RECOGNIZANCE.
[Cases: Bail C=>40.]
releaser. See RELEASOR.
release to uses 1404
release to uses. (1830) Conveyance of property, by deed
of release, by one party to another for the benefit ofthe
grantor or a third party. See deed ofrelease under DEED;
STATUTE OF USES; USE (4). [Cases: Deeds C=>23.]
releasor. (17c) One who releases property or a claim to
another. -Also spelled releaser. [Cases: Release C=>
1.]
relegatio (rel-;l-gay-shee-oh), n. [ff. Latin relegare "to
send away"] Roman law. Temporary or permanent ban
ishment ofa condemned criminal from Rome and the
criminal's native province, without loss of citizenship
or forfeiture of all the criminal's property. Cf. DEPOR
TATIO.
"Relegatio. The expulsion of a citizen ordered either by
an administrative act of a magistrate or by judgment in a
criminal trial. In the latter case the relegatiowas sometimes
combined with additional punishments, such as confis
cation of the whole or of a part of the property of the
condemned person, loss of Roman Citizenship, confine
ment in a certain place. A milder form of relegatio was the
exclusion of the wrongdoer from residence in a specified
territory. Illicit return was punished with the death penalty."
Adolf Berger, Encyclopedic Dictionary of Roman Law 673
(1953).
relegation, n. (16c) 1. Banishment or exile, esp. a tem
porary one. 2. Assignment or delegation. -relegate,
vb.
relevance. The fact, quality, or state of being relevant;
relation or pertinence to the issue at hand. -Also
termed relevancy. [Cases: Criminal Law C=> 338;
Evidence C=>99.]
relevancy. See RELEVANCE.
relevant, adj. (16c) Logically connected and tending to
prove or disprove a matter in issue; having appreciable
probative value -that is, rationally tending to persuade
people ofthe probability or possibility ofsome alleged
fact. Cf. MATERIAL (2), (3). [Cases: Criminal Law C=>
338; Evidence C=>99.]
"The word 'relevant' means that any two facts to which it
is applied are so related to each other that according to
the common course of events one either taken by itself or
in connection with other facts proves or renders probable
the past, present, or future existence or non-existence of
the other." James Fitzjames Stephen, A Digest of the Law
of Evidence 2 (4th ed. 1881).
relevant art. See ART.
relevant evidence. See EVIDENCE.
relevant market. See MARKET.
reliance, n. (l7c) Dependence or trust by a person, esp.
when combined with action based on that dependence
or trust. -rely, vb.
detrimental reliance. (1941) Reliance by one party
on the acts or representations of another, causing a
worsening ofthe first party's position . Detrimental
reliance may serve as a substitute for consideration
and thus make a promise enforceable as a contract.
See promissory estoppel under ESTOPPEL. [Cases:
Estoppel C=>55, 85, 87.]
reliance damages. See DAMAGES. reliance interest. See INTEREST (2).
reliance-loss damages. See DAMAGES.
reliance materials. See EXPERT-RELIANCE MATERIALS.
relict (rel-ikt). Archaic. A surviving spouse; esp., a
widow.
relicta verificatione (ri-lik-t;l ver-;l-fi-kay-shee-oh-nee).
[Latin "his pleading being abandoned"] Hist. A confes
sion ofjudgment accompanied by a withdrawal of the
plea. See COGNOVIT ACTIONEM.
reliction (ri-lik-sh;ln). (17c) 1. A process by which a river
or stream shifts its location, causing the recession of
water from its bank. [Cases: Navigable Waters C=>44;
Waters and Water Courses C=>93.] 2. The alteration
of a boundary line because of the gradual removal of
land bv a river or stream. See ACCRETION; DERELICTION
(2). [C~ses: Navigable Waters C=>44; Waters and Water
Courses C=>93.]
relief. (14c) 1. A payment made by an heir of a feudal
tenant to the feudal lord for the privilege ofsucceeding
to the ancestor's tenancy.
"A mesne lord could, upon the death of his tenant, accept
the tenant's heir as tenant; but he was not required to
do so. When he did accept his deceased tenant's heir as
tenant, it was typically because the heir had paid the mesne
lord a substantial sum (known as a relieD for the re-grant
of the tenancy." Thomas F. Bergin & Paul G. Haskell, Preface
to Estates in Land and Future Interests 8 (2d ed. 1984).
2. Aid or assistance given to those in need, esp., finan
cial aid provided by the state. [Cases: Social Security
and Public Welfare C=)4.]3. The redress or benefit, esp.
equitable in nature (such as an injunction or specific
performance), that a party asks of a court. -Also
termed remedy. Cf. REMEDY.
affirmative relief (1842) The relief sought by a defen
dant by raising a counterclaim or cross-claim that
could have been maintained independently of the
plaintiff's action.
alternative relief (1851) Judicial relief that is mutually
exclusive with another form of judicial relief . In
pleading, a party may request alternative relief, as by
asking for both specific performance and damages
that would be averted by specific performance. Fed.
R. Civ. P. 8(a). Cf. ELECTION OF REMEDIES. [ |
specific performance. Fed.
R. Civ. P. 8(a). Cf. ELECTION OF REMEDIES. [Cases:
Specific Performance C=> 127.]
coercive relief (1886) Judicial relief, either legal or
equitable, in the form ofa personal command to the
defendant that is enforceable by physical restraint.
declaratory relief A unilateral request to a court to
determine the legal status or ownership of a thing.
[Cases: Declaratory Judgment C=>385.]
extraordinary relief Judicial relief that exceeds what is
typically or customarily granted but is warranted by
the unique or extreme circumstances of a situation.
The types of extraordinary relief most frequently
sought are injunctions and extraordinary writs, esp.
mandamus. See INJUNCTION; MANDAMUS. Cf. extraor
dinary writ under WRIT. [Cases: Courts C=>207.]
1405
interim relief. (1886) Relief that is granted on a pre
liminary basis before an order finally disposing of a
request for relief.
therapeutic relief. (1889) The relief, esp. in a settlement,
that requires the defendant to take remedial measures
as opposed to paying damages. An example is a
defendant-corporation (in an employment-dis
crimination suit) that agrees to undergo sensitivity
training. Often shortened to therapeutics.
religion. A system offaith and worship usu. involving
beliefin a supreme being and usu. containing a moral
or ethical code; esp., such a system recognized and
practiced by a particular church, sect, or denomination.
In construing the protections under the Establish
ment Clause and the Free Exercise Clause, courts have
interpreted the term religion quite broadly to include a
wide variety oftheistic and nontheistic beliefs. [Cases:
Religious Societies 1.]
state religion. A religion promoted, taught, or enforced
by a government's acts to the exclusion ofother reli
gions.
religion, freedom of. See FREEDOM OF RELIGION.
Religion Clause. In the Bill of Rights, the provision
stating that "Congress shall make no law respecting
an establishment of religion or prohibiting the free
exercise thereof." U.S. Const. amend. 1. Some writers
use the plural form, "Religion Clauses," to mean both
the Establishment Clause and the Free Exercise Clause,
thus emphasizing the asserted common purpose ofthe
two provisions. [Cases: Constitutional Law C==', 1290
1428.J
religious-affinity fraud. See PRAUD.
religious corporatiou. See CORPORATION.
religious-exemption statute. See FAITH-HEALING
EXEMPTION.
religious liberty. See LIBERTY.
Religious Test Clause. The clause ofthe U.S. Constitu
tion that prohibits the use ofa religious test as a quali
fication to serve in any office or public trust. U.S. Const.
art. VI, par. 3, cl. 2. -Also termed No Religious Test
Clause.
relinquishment, n. (I5c) The abandonment ofa right or
thing. -relinquish, vb.
reliqua (reJ-<'l-kw<'l). [Latin] Civil law. The remainder ofa
debt after balancing or liquidating an account; money
left unpaid.
relitigate, vb. (1826) To litigate (a case or matter) again
or anew <relitigate the issue in federal court>. -reliti
gation, n.
relocatio (ree-Ioh-kay-shee-oh). [Latin] Civil law. The
renewal of a lease; RECONDUCTION (I).
relocation. 1. Removal and establishment of someone
or something in a new place. 2. Mining law. Appro
priation of a new tract ofland for a mining claim, as
by an owner who wishes to change the boundaries of
the original tract or by a stranger who wishes to claim remainder
an abandoned or forfeited tract. [Cases: Mines and
Minerals (;=>26.]3. Civil law. RECONDUCTION (1).
rem. See IN REM.
remainder. (lSc) Property. 1. A future interest arising
in a third person that is, someone other than the
estate's creator, its initial holder, or the heirs ofeither
who is intended to take after the natural termination of
the preceding estate . For example, if a grant is "to A
for life, and then to B," B's future interest is a remainder.
Ifthere is only one preceding estate and the remainder
vests on that estate's expiration, the remainder is also
termed an executed estate. -Also termed remainder
estate; estate in remainder. Cf. EXECUTORY INTEREST;
REVERSION; POSSIBILITY OF REVERTER. [Cases: Remain
ders (;=> 1.]
"Whether a remainder is vested or contingent depends
upon the language employed. If the conditional element
is incorporated into the description of, or the gift to the
remainder man, then the remainder is contingent; but
if. after words giving a vested interest, a clause is added
divesting it, the remainder is vested. Thus, on a devise to
A. for life, remainder to his children, but if any child dies in
the lifetime of A. his share to go to those who survive, the
share of each child is vested, subject to be divested by his
death. But on a devise to A. for life, remainder to such of his
children as survive him. the remainder is contingent." John
Chipman Gray, The Rule Against Perpetuities 66 (1886).
"Under the names of 'remainders' and 'executory limita
tions,' various classes of interests in land could be created
in expectancy. either at the Common Law or under the
Statute of Uses. The differences between the two classes
were highly technical; and the learning involved in acquir
ing a knowledge of the rules of determining them [is] quite
out of proportion to the value obtained." Edward Jenks, The
Book ofEnglish Law 263 (P.S. Fairest ed., 6th ed. 1967).
accelerated remainder. (1901) A remainder that has
passed to the remainderman, as when the gift to the
preceding beneficiary fails. [Cases: Remainders
5.J
alternative remainder. (1830) A remainder in which
the disposition of property is to take effect only if
another disposition does not take effect.
charitable remainder. (1932) A remainder, usu. from
a life estate, that is given to a charity; for example, "to
Jane for life, and then to the American Red Cross.
[Cases: Internal Revenue (;=>4172(3); Taxation
3328.]
contingent remainder. (I8c) A remainder that is either
given to an unascertained person or made subject to
a condition precedent. An example is "to A for life,
and then, ifB has married before A dies, to B." Also
termed executory remainder; remainder subject to a
condition precedent. [Cases: Remainders (->1, 4.)
"Unlike a vested remainder, a contingent remainder is either
subject to a condition precedent (in addition to the natural
expiration of a prior estate), orowned by unascertainable
persons, or both. But the contingent remainder, like the
vested remainder, 'waits patiently' for possession. It is so
created that it can become a present estate (if ever it does)
immediately upon, and no sooner than, the natural expira
tion of particular estates that stand in front of it and were
created simultaneously with it." Thomas F. Bergin & Paul
G. Haskell, Preface to Estates in Land and Future Interests
73 (2d ed. 1984).
1406 remainder bequest
cross-remainder. (I8c) A future interest that results
when particular estates are given to two or more
persons in different parcels of land, or in the same
land in undivided shares, and the remainders of all
the estates are made to vest in the survivor or sur
vivors. _ Two examples of devises giving rise to
cross-remainders are (1) "to A and B for life, with
the remainder to the survivor and her heirs," and (2)
"Blackacre to A and Whiteacre to B, with the remain
der of A's estate to B on A's failure of issue, and the
remainder of B's estate to A on B's failure ofissue."
If no tenants or issue survive, the remainder vests in a
third party (sometimes known as the ulterior remain
derman). Each tenant in common has a reciprocal,
or cross, remainder in the share of the others. This
type ofremainder could not be created by deed unless
expressly stated. It could, however, be implied in a
will. [Cases: Remainders C=: 1.]
"By a will also an estate may pass by mere implication,
without any express words to direct its course.... So also,
where a devise of black-acre to A and of white-acre to B in
tail, and if they both die without issue, then to C in fee: here
A and B have cross remainders by implication, and on the
failure of either's issue, the other or his issue shall take the
whole: and C's remainder over shall be postponed till the
issue of both shall fail." 2 William Blackstone, Commentar
ies on the Laws ofEngland 381 (1766).
defeasible remainder. (18c) A vested remainder that
will be destroyed if a condition subsequent occurs.
-An example is "to A for life, and then to B, but if
B ever sells liquor on the land, then to c." -Also
termed remainder subject to divestment. [Cases:
Remainders 10.]
executed remainder. See vested remainder.
executory remainder. See contingent remainder.
indefeasible remainder. (1898) A vested remainder
that is not subject to a condition subsequent; specif.,
a remainder in which the remainderman is certain to
acquire a present interest sometime in the future and
will be entitled to retain the interest permanently.
Also termed indefeaSibly vested remainder; remainder
indefeasibly vested.
remainder subject to a condition precedent. See contin
gent remainder.
remainder subject to divestment. See defeasible remain
der.
remainder subject to open. (1838) A vested remainder
that is given to a class ofpersons whose numbers may
change over time and that is to be shared equally by
each member of the class. -An example is "to A for
life, and then equally to all of B's children." The class
must have at least one member, but more can be added
over time. Also termed remainder subject to partial
divestment; remainder vested subject to open_
vested remainder. (18c) A remainder that is given to
an ascertained person and that is not subject to a
condition precedent. An example is "to A for life,
and then to B." Also termed executed remainder.
[Cases: Remainders 1.] 2. The property in a decedent's estate that is not other
wise specifically devised or bequeathed in a will. See
residuary estate under ESTATE (3). [Cases: Wills
586.]
remainder bequest. See residuary bequest under
BEQUEST.
remainderer. See REMAINDERMAN.
remainder estate. See REMAINDER (I).
remainder indefeasibly vested. See indefeasible remain
der under REMAINDER.
remainder interest. (1815) 1he property that passes to
a beneficiary after the expiration of an intervening
j ncome interest. _ For example, ifa grantor places real
estate in trust with income to A for life and remainder
to B upon A's death, then B has a remainder interest.
remainderman. (18c) A person who holds or is entitled
to receive a remainder. Also termed remainderer;
remainderperson; remainor. [Cases: Remainders
1.]
ulterior remainderman. A third party whose future
interest in a property vests only jf all the preceding
reciprocal interests See cross-remainder under
REMAINDER.
remainder subject to partial divestment. See remainder
subject to open under REMAINDER.
remainder vested subject to open. See remainder subject
to open under REMAINDER.
remainor, n. See REMAINDERMAN.
remake rights. Copyright. The rights to produce one or
more additional movies or screenplays based on what
is substantially the same story as is contained in the
original movie or screenplay for which the rights have
been granted. [Cases: Copyrights and Intellectual
Property <):::::>38.)
remancipate, vb. To mancipate (a thing or person)
again.
remand (ri-mand also ree-mand), n. (18c) 1. The act or
an instance of sending something (such as a case, claim,
or person) back for further action. 2. An order remand
ing a case, claim, or person.
fourth-sentence remand. In a claim for SOcial-security
benefits, a court's decision affirming, reversing, or
modifying the decision of the Commissioner of Social
Security. -This type of remand is called a fourth
sentence remand because it is based on the fourth
sentence of 42 USCA 405(g): "The court shall have
power to enter, upon the pleadings and transcript
of the record, a judgment affirming, modifying, or
reversing the decision ofthe Commissioner ofSocial
Security, with or without remanding the cause for a
rehearing." See Melkonyan v. Sullivan, 501 U.S. 89, 111
S.Ct. 2157 (1991). [Cases: Social Security and Public
Welfare C:-149.]
sixth-sentence remand. In a claim for social-security
benefits, a court's decision that the claim should
be reheard by the Commissioner of Social Security
1407 remedy
because new evidence is available, which was not
available before, that might change the outcome of
the proceeding. This type of remand is called a
sixth-sentence remand because it is based on the sixth
sentence of 42 USCA 405(g): "The court may, on
motion of the Commissioner of Social Security made
for good cause shown before the Commissioner files
the Commissioner's answer, remand the case to the
Commissioner of Social Security for further action
by the Commissioner of Social Security, and it may |
, remand the case to the
Commissioner of Social Security for further action
by the Commissioner of Social Security, and it may
at any time order additional evidence to be taken
before the Commissioner of Social Security, but only
upon a showing that there is new evidence which is
material and that there is good cause for the failure to
incorporate such evidence into the record in a prior
proceeding ...." See Melkonyan v. Sullivan, 501 U.S.
89, 111 S.Ct. 2157 (1991). [Cases: Social Security and
Public Welfare (;:::;, 149.)
remand (ri-mand), vb. (15c) 1. To send (a case or claim)
back to the court or tribunal from which it came for
some further action <the appellate court reversed the
trial court's opinion and remanded the case for new
trial>. Cf. REMOVAL (2). [Cases: Administrative Law and
Procedure (;::::::>817; Appeal and Error 1106,1178,
1186; Criminal Law c?1181.5; Federal Courts (;:::;'937,
943; Removal of Cases C-:> 107(8).) 2. To recommit (an
accused person) to custody after a preliminary exami
nation <the magistrate, after denying bail, remanded
the defendant to custody>.
remanentia (rem-~-nen-shee-~). [Law Latin] Rist. A
remainder or perpetuity.
remanent pro defectu emptorum (rem-~-n<mt proh di
fek-t[y]oo emp-tor-~m). [Latin] Hist. Remains unsold
for want of buyers . This language was used in a return
ofa writ of execution when the sheriff could not sell the
seized property. [Cases: Execution (;:::;,334.J
remanet (rem-<}-net). (16c) 1. A case or proceeding
whose hearing has been postponed. 2. A remainder or
remnant.
remargining, n. Securities. The act or process ofdeposit
ing additional cash or collateral with a broker when the
equity in a margin account falls to an insufficient leveL
See margin account under ACCOUNT. remargin,
vb.
remarry, vb. To marry a second or later time, after a
divorce or the death of one's spouse. [Cases: Divorce
(;:::;,319.]
remediable, adj. (l5c) Capable ofbeing remedied, esp. by
law <remediable wrongs>. remediability, n.
remedial, adj. (17c) 1. Affording or providing a remedy;
providing the means of obtaining redress <a remedial
action>. 2. Intended to correct, remove, or lessen a
wrong, fault, or defect <a remedial statute>. 3. Of or
relating to a means of enforcing an existing substantive
right <a remedial right>.
remedial action. 1. Environmental law. An action
intended to bring about or restore long-term envi
ronmental quality; esp., under CERCLA, a measure intended to permanently alleviate pollution when a
hazardous substance has been released or might be
released into the environment, so as to prevent or
minimize any further release ofhazardous substances
and thereby minimize the risk to public health or to the
environment. 42 USCA 9601(24); 40 CFR 300.6.
Also termed remedy. See CERCLA. Cf. REMOVAL ACTION.
[Cases: Environmental Law (;:::;,439.J 2. See personal
action (1) under ACTION (4).
remedial enforcement. See secondary right under
RIGHT.
remedial law. (l7c) 1. A law providing a means to enforce
rights or redress injuries. 2. A law that corrects or
modifies an existing law; esp., a law proViding a new
or different remedy when the existing remedy, if any,
is inadequate. [Cases: Statutes (;:::;,236.]
remedial liability. See LIABILITY.
remedial promise. See PROMISE.
remedial right. See RIGHT. . remedial statute. See STATUTE.I
remedial trust. See constructive trust under TRUST.
remediation. Environmental law. 1he restoration of
polluted land, water, or air to its former state, or as
nearly so as is practicaL [Cases: Environmental Law
'~J366, 439.]
remedies, n. The field of law dealing with the means of
enforcing rights and redressing wrongs.
remediis praetoriis (ri-mee-dee-is pri-tor-ee-is). [Latin]
Hist. By praetorian remedies.
remedium extraordinarium (ri-mee-dee-~m ek-stror
di-nair-ee-<}m or ek-str<}-or-). [Latin] Hist. An extraor
dinary remedy.
remedy, n. (l3c) 1. The means of enforcing a right or
preventing or redressing a wrong; legal or equita
ble relief. -Also termed civil remedy. 2. REMEDIAL
ACTIO;'\[. Cf. RELIEF. -Also termed (in both senses)
law ofremedy. -remedy, vb.
"A remedy is anything a court can do for a litigant who has
been wronged or is about to be wronged. The two most
common remedies are judgments that plaintiffs are entitled
to collect sums of money from defendants and orders to
defendants to refrain from their wrongful conduct or to
undo its consequences. The court decides whether the
litigant has been wronged under the substantive law; it
conducts its inquiry in accordance with the procedural law.
The law of remedies falls somewhere between substance
and procedure, distinct from both but overlapping with
both." Douglas Laycock, Modern American Remedies 1 (3d
ed.2002).
adequate remedy atlaw. (l8c) A legal remedy (such as
an award ofdamages) that provides sufficient relief to
the petitioning party, thus preventing the party from
obtaining equitable relief. See IRREPARABLE INJURY
RULE. [Cases: Equity Specific Performance
administrative remedy. (1880) A nonjudicial remedy
provided by an administrative agency . Ordinar
ily, if an administrative remedy is available, it must
be exhausted before a court will hear the case. See
EXHAUSTION OF REMEDIES. [Cases: Administrative
Law and Procedure C=>229.]
civil remedy. See REMEDY (1).
concurrent remedy. (1Sc) One of two or more legal or
equitable actions available to redress a wrong.
cumulative remedy. (1Sc) A remedy available to a party
in addition to another remedy that still remains in
force.
equitable remedy. (lSc) A remedy, usu. a nonmonetary
one such as an injunction or specific performance,
obtained when available legal remedies, usu. monetary
damages, cannot adequately redress the injury . His
torically, an equitable remedy was available only from
a court ofequity. -Also termed equitable relief See
IRREPARABLE-INJURY RULE. [Cases: Injunction C=>
15, 13S.9; Specific Performance C=> 1.]
extrajudicial remedy. A remedy not obtained from a
court, such as repossession. -Also termed self-help
remedy.
extraordinary remedy. (16c) A remedy -such as a
writ of mandamus or habeas corpus -not available
to a party unless necessary to preserve a right that
cannot be protected by a standard legal or equitable
remedy. Because there is no agreed list of extraor
dinary remedies, some standard remedies -such as
preliminary and permanent injunctions -are some
times described as extraordinary. [Cases: Injunction
C=> 1, 132; Mandamus C=>3(1)-3(2.1).]
judicial remedy. (ISc) A remedy granted by a court.
legal remedy. (17c) A remedy historically available in
a court of law, as distinguished from a remedy his
torically available only in equity. After the merger
oflaw and equity, this distinction remained relevant
in some ways, such as in determining the right to
jury trial and the choice between alternate remedies.
[Cases: Action C=>21.]
provisional remedy. (1Sc) A temporary remedy awarded
before judgment and pending the action's disposition,
such as a temporary restraining order, a preliminary
injunction, a prejudgment receivership, or an attach
ment. Such a remedy is intended to maintain the
status quo by protecting a person's safety or preserv
ing property. [Cases: Attachment C=> 1; Injunction
C=> 132, 13S.3, 150.]
remedy over. (1Sc) A remedy that arises from a right of
indemnification or subrogation . For example, ifa
city is liable for injuries caused by a defect in a street,
the city has a "remedy over" against the person whose
act or negligence caused the defect. [Cases: Indemnity
C=>20, 91; Subrogation C=> 1.]
self-help remedy. See extrajudicial remedy.
specific remedy. (1Sc) A remedy whereby the injured
party is awarded the very performance that was con
tractually promised or whereby the injury threatened
or caused by a tort is prevented or repaired. A court
awards a specific remedy by ordering a defaulting seller of goods to deliver the specified goods to the
buyer (as opposed to paying damages). [Cases: Specific
Performance C=> 126.]
speedy remedy. (1Sc) A remedy that, under the cir
cumstances, can be pursued expeditiously before the
aggrieved party has incurred substantial detriment.
"Speedy remedy" is an informal expression with no
fixed meaning -that is, what is considered speedy
in one context may not be considered speedy in other
contexts. For example, the Federal Tax Injunction Act
requires a "plain, speedy, and efficient remedy" in state
courts. But the Act does not require preliminary or
injunctive relief -or even interest for delay.
"'Speedy' is perforce a relative concept, and we must
assess the 2-year delay against the usual time for similar
litigation." Rosewell v. LaSalle Nat'l Bank, 450 U.S. 503,
518 (1981).
substitutional remedy. (19S7) A remedy intended to
give the promisee something as a replacement for the
promised performance or to give the plaintiff some
thing in lieu of preventing or repairing an injury .
A court awards a substitutional remedy by ordering a
defaulting seller ofgoods to pay the buyer damages (as
opposed to delivering the promised goods). -Also
termed substitutionary remedy. [Cases: Contracts
324(1).]
"With substitutionary remedies, plaintiff suffers harm
and receives a sum of money. SpeCific remedies seek to
avoid this exchange. They seek to prevent harm, or undo
it, rather than let it happen and compensate for it....
[Money damages] are substitutionary both in the sense
that the sum of money is substituted for plaintiff's original
entitlement, and in the less obvious sense that the fact
finder's valuation of the loss is substituted for plaintiff's
valuation. Specific relief seeks to avoid both these substitu
tions, giving plaintiff the very thing he lost if that is what
he wants." Douglas Laycock, The Death of the Irreparable
Injury Rule 13 (1991).
remedy, mutuality of. See MUTUALITY OF REMEDY.
remere (ray-may-ray), n. [French] The right of repur
chase.
REMIC (rem-ik or ree-mik). abbr. REAL-ESTATE-MORT
GAGE INVESTMENT CONDUIT.
remise (ri-mlz), vb. (1Sc) To give up, surrender, or release
(a right, interest, etc.) <the quitclaim deed provides that
the grantor remises any rights in the property>.
remissio injuriae (ri-mis[h]-ee-oh in-joor-ee-ee). [Latin]
Hist. Forgiveness of the offense.
remission. (13c) 1. A cancellation or extinguishment of
all or part of a financial obligation; a release of a debt
or claim. [Cases: Release C=> 1.]
conventional remission. Civil law. A remission
expressly granted to a debtor by a creditor having
capacity to alienate. La. Civ. Code art. IS40.
tacit remission. Civil law. A remission arising by opera
tion oflaw, as when a creditor surrenders an original
title to the debtor. La. Civ. Code art. ISSS.
2. A pardon granted for an offense. 3. Relief from a for
feiture or penalty. [Cases: Controlled Substances C=>
1409
lS9; Forfeitures Penalties l.] 4. A diminu
tion or abatement ofthe symptoms ofa disease,
remit, vb, (I4c) 1. To pardon or forgive <the wife could not
remit her husband's infidelity>, 2. To abate or slacken;
to mitigate <the receipt ofmoney damages remitted the
embarrassment ofbeing fired>, 3. To refer (a matter for
decision) to some authority, esp, to send back (a case) to
a lower court <the appellate court remitted the case to
the trial court for further factual determinations>, See
REMAND, [Cases: Administrative Law and Procedure
~817;Appeal and Error (~1106, 1178; Criminal Law
(:::=~ 11Sl.5; Federal Courts ~943,1.]4. To send or put
back to a previous condition or position <a landlord's
breach ofa lease does not justify the tenant's refusal to
pay rent; instead, the tenant is remitted to the right to
recover damages>, 5. To transmit (as money) <upon
|
, the tenant is remitted to the right to
recover damages>, 5. To transmit (as money) <upon
receiving the demand letter, she promptly remitted the
amount due>. -remissible (for senses 1-4), adj,
remittable (for sense 5), adj,
remittance. (ISc) 1. A sum of money sent to another as
payment for goods or services, 2. An instrument (such
as a check) used for sending money, 3. The action or
process ofsending money to another person or place,
remittance advice. See ADVICE,
remittee. (18c) One to whom payment is sent,
remitter. (16c) 1. The principle by which a person having
two titles to an estate, and entering on it by the later or
more defective title, is deemed to hold the estate by the
earlier or more valid title. 2. The act of sending back
a case to a lower court 3. One who sends payment to
someone else. -Also spelled (in sense 3) remittor,
remitting bank. See BANK.
remittit damna (ri-mit-it dam-nJ), [Latin] Hist, An entry
on the record by which a plaintiff declares that he or she
remits part of the damages that have been awarded.
Also termed remittitur damna; remittitur damnum.
remittitur (ri-mit-i-tJr), (ISc) 1. An order awarding a new
trial, or a damages amount lower than that awarded by
the jury, and requiring the plaintiff to choose between
those alternatives <the defendant sought a remit
titur of the $100 million judgment>. 2. The process by
which a court requires either that the case be retried,
or that the damages awarded by the jury be reduced,
Cf. ADDITUR, [Cases: Federal Civil Procedure C:J2377;
Federal Courts ~'94S; New Trial (;::J 162.]
remittitur damna. See REMITTIT DAMNA,
remittitur damnum. See REMITTIT DAMNA,
remittitur of record, (1848) The action of sending the
transcript of a case back from an appellate court to a
trial court; the notice for doing so.
remittor. See REMITTER (3),
remnants and surpluses. Maritime law, 1he proceeds
remaining from the sale of a ship after claims for
seamen's wages, bottomry bonds, salvage services, and
supplies have been paid, [Cases: Admiralty ~lOL] remuneration
remonetization, n. The restoration of a precious
metal (such as gold or silver) to its former use as legal
tender. -remonetize, vb.
remonstrance (ri-mon-str;:mts), n, (l6c) 1. A presenta
tion ofreasons for opposition or grievance. 2. A formal
document stating reasons for opposition or grievance, 3.
A formal protest against governmental policy, actions,
or officials. remonstrate (ri-mon-strayt), vb,
remote, adj. (ISc) 1. Far removed or separated in time,
space, or relation, 2. Slight. 3. Property. Beyond the 21
years after some life in being by which a devise must
vest. See RULE AGAINST PERPETUITIES. [Cases: Perpe
tuities ~4(3).1
remote cause. See CAUSE (1),
remote damages. See speculative damages (1) under
DAMAGES.
remoteness ofconsequence, Torts, The lack ofproximate
causation with respect to an alleged act by a defendant.
Even if the plaintiff proves every other element for
tortious liability, the defendant will not be liable if the
harm suffered by the plaintiffis too far removed from
the defendant's conduct, -Also termed remoteness
afdamage.
remote possibility. See POSSIBILITY.
remotis testibus (ri-moh-tis tes-ti-bds), [Latin] Hist. The
witnesses being absent
removal, n. (l6c) 1. The transfer or moving of a person
or thing from one location, position, or residence to
another. 2. The transfer of an action from state to
federal court. In removing a case to federal court, a
litigant must timely file the removal papers and must
show a valid basis for federal-court jurisdiction. 28
USCA 1441. Cf. REMAND (1). [Cases: Removal of
Cases c:r-:;::, 16.] -remove, vb.
civil-rights removal. (1964) Removal of a case from
state to federal court because a person: (1) has been
denied or cannot enforce a civil right in the state
court, (2) is being sued for performing an act under
color of authority derived from a law providing
for equal rights, or (3) is being sued for refUSing to
perform an act that would be inconsistent with equal
rights. [Cases: Removal ofCases C='70.]
removal action. Environmental law. An action, esp,
under CERCLA, intended to bring about the short-term
abatement and cleanup of pollution (as by removing
and disposing of toxic materials). See CERCLA, Cf.
REMEDIAL ACTION, [Cases: Environmental Law
439, 441.J
removal bond. See BOND (2).
rem pupilli salvam fore (rem pyoo-pil-I sal-vdm
for-ee). [Latin] Roman law. The guarantee reqUired of
a guardian that the estate ofthe person under puberty
will be safe,
REMT. abbr, REAL-ESTATE MORTGAGE TRUST,
remuneration (ri-myoo-nd-ray-shJn), n, (ISc) 1.
Payment; compensation, 2. The act of paying or
1410 remunerative donation
compensating. -remunerative, adj. -remunerate,
vb.
remunerative donation. See DONATION.
rencounter (ren-kown-t;)r). (16c) A hostile meeting or
contest; a battle or combat. -Also spelled rencontre
(ren-kon-t;)r).
render, n. (14c) Hist. 1. A payment in money, goods, or
services made by a feudal tenant to the landlord. 2. A
return conveyance made by the grantee to the grantor
in a fine. See FINE (1).
render, vb. 1. To transmit or deliver <render payment>.
2. (Of a judge) to deliver formally <render a judgment>.
3. (Of a jury) to agree on and report formally <render a
verdict>. 4. To pay as due <render an account>.
rendezvous, n. 1. A place designated for meeting or
assembly, esp. of troops or ships. 2. The meeting or
assembly itself.
rendition, n. (17c) 1. The action of making, delivering,
or giving out, such as a legal decision. 2. lhe return ofa
fugitive from one state to the state where the fugitive is
accused or was convicted ofa crime. Also termed (in
sense 2) interstate rendition. Cf. EXTRADITIO>l. [Cases:
Extradition and Detainers 30.]
erroneous rendition. See EXTRAORDINARY RENDITION.
extraordinary rendition. The transfer, without formal
charges, trial, or court approval, ofa person suspected
of being a terrorist or supporter ofa terrorist group
to a foreign nation for imprisonment and interroga
tion on behalf ofthe transferring nation . When an
innocent person is subjected to extraordinary rendi
tion, it is also termed erroneous extradition. When
a transfer is made to a nation notorious for human
rights violations, it may be colloquially termed torture
by proxy or torture flight.
rendition ofjudgment. (18c) The judge's oral or written
ruling containing the judgment entered. Cf. ENTRY OF
JUDGMENT. [Cases; Federal Civil Procedure (;:::::>2621;
Judgment (;:::::>215.]
rendition warrant. See WARRANT (1).
renege (ri-nig or ri-neg), vb. (16c) To fail to keep a
promise or commitment; to back out ofa deal.
renegotiable-rate mortgage. See MORTGAGE.
renegotiation, n. (1934) 1. The act or process of negoti
ating again or on different terms; a second or further
negotiation. 2. The reexamination and adjustment of
a government contract to eliminate or recover excess
profits by the contractor. [Cases: United States
70(35).] -renegotiate, vb.
renewable term insurance. See INSURA>lCE.
renewal, n. (17c) 1. The act ofrestoring or reestablishing.
2. Parliamentary law. The introduction or consider
ation ofa question already disposed of. -Also termed
renewal oj a motion. See restorative motion under
MOTION (2). Cf. RECONSIDER. 3. The re-creation of a
legal relationship or the replacement ofan old contract
with a new contract, as opposed to the mere extension of a previous relationship or contract. Cf. EXTENSION
(1); REVIVAL (1). [Cases: Contracts C-=>217.J -renew,
vb.
renewal note. See NOTE (1).
renewal ofa motion. See RENEWAL (2).
renounce, vb. (14c) 1. To give up or abandon formally
(a right or interest); to disclaim <renounce an inheri
tance>. [Cases: Descent and Distribution Wills
(;:::::>717.] 2. To refuse to follow or obey; to decline to
recognize or observe <renounce one's allegiance>.
renovare (ren-;)-vair-ee), vb. [Latin] Hist. To renew.
renovatio (ren-d-vay-shee-oh). [Latin] Hist. A renewal
(as ofa lease).
rent, n. (Be) l. Consideration paid, usu. periodically, for
the use or occupancy of property (esp. real property).
[Cases: Landlord and Tenant (;:::::> 181.]
ceiling rent. The maximum rent that can be charged
under a rent-control regulation. [Cases: Landlord and
Tenant (:::=::0200.46.]
crop rent. The portion of a harvest given by a share
cropper to a landlord as rent . Specific crop names,
such as grain rent and potato rent, are commonly
used. [Cases: Landlord and Tenant (;:::::>215.]
double rent. Twice the amount ofrent agreed to; specif.,
a penalty oftwice the amount ofrent against a tenant
who holds possession ofthe leased property after the
date provided in the tenant's notice to quit. The
penalty was provided by the Distress for Rent Act,
1737, 11 Geo. 2., ch. 19, 13. [Cases: Landlord and
Tenant
dry rent. 1. Rent reserved without a distress clause
allOWing the rent to be collected by distress; rent that
can be collected only by an ordinary legal action.
Formerly also termed rent seck. 2. See rent seck under
RENT (2).
economic rent. See ECONOMIC RENT.
grain rent. See crop rent.
ground rent. 1. Rent paid by a tenant under a long-term
lease for the use ofundeveloped land, usu. for the con
struction of a commercial building. -Also termed
redeemable ground rent. See ground lease under LEASE.
2. A heritable interest, in rental income from land,
reserved by a grantor who conveys the land in fee
simple . This type ofground rent is found primarily
in Maryland and Pennsylvania. -Also termed (in
Scots law) irredeemable ground rent; ground annual.
[Cases: Estates in Property (;:::::> 13.]
guild rent. Hist. Rent payable to the Crown by a
guild. Also spelled gild-rent.
irredeemable ground rent. See ground rent (2).
net rent. The rental price for property after payment of
expenses, such as utilities, and taxes. [Cases;
Landlord and Tenant 210.]
rack-rent. See RACK-RENT.
redeemable ground rent. See ground rent (1).
1411
2. Hist. A compensation or return made periodically
by a tenant or occupant for the possession and use of
lands or corporeal hereditaments; money, chattels, or
services issuing usu. annually out of lands and tene
ments as payment for use.
peppercorn rent. A nominal rent that is far below the
market rate. -The rent may be a mere token payment.
Historically in English law, some lease agreements
called for a token annual rent payment of a Single
dried berry ofblack pepper. See PEPPERCORN.
quit rent. See QUIT RENT.
rent charge. The right to receive an annual sum from
the income ofland, usu. in perpetuity, and to retake
possession if the payments are in arrears. -Also
spelled rent-charge; rentcharge. -Also termed
fee-farm rent.
"Rentcharge is a rent with liberty to distrain. As when a
man seised of land granteth by a deed poll, or by indenture,
a yearly rent going out of the same land to another in fee
or feetail, or for a term of life, etc. with clause of distress,
or maketh a feoffment in fee by indenture, reserving to
himself a certain yearly rent, with clause of distress." Sir
Henry Finch, Law, or a Discourse Thereof 155 (1759).
"A rentcharge is an annual or periodic payment charged
upon, and payable by the owner of, land. Unlike a rent
service, in the case of a rentcharge there is no tenure
or privity of estate between the parties. The owner of a
rentcharge has no tenurial relationship with the land upon
which it is charged, A rentcharge is a species of incorporeal
property, but, unlike an easement, is incorporeal property
in gross, being enjoyed by the owner personally and not
in the capacity of proprietor of land," Peter Butt, Land Law
330 (2d ed, 1988),
rent |
capacity of proprietor of land," Peter Butt, Land Law
330 (2d ed, 1988),
rent seck. Hist, A rent reserved by deed but without
any clause ofdistress. -Also spelled rent-seck; rent
sec. -Also termed dry rent. PI. rents seck.
"But rents-seck have long ceased to exist, because the
inability of their owners to distrain was abolished by the
Landlord and Tenant Act, 1730 (4 George II), which enacted
that the owners of rents' seck, rents of assize and chief
rents should have the same remedy by distress as existed
in the case of rent reserved upon lease." G.c. Cheshire,
Modern Law ofReal Property 199 (3d ed, 1933),
"At common law, the relationship of lord and tenant carried
with it an automatic right of distress for any rent. If no such
relationship existed, there was no common law right of
distress, and consequently an express clause of distress
was frequently inserted when reserving the rent. A rent
supported by no right of distress was known as a rent seck
(from the Latin siccus, dry, barren) . , .. Rent seck ceased
to exist many years ago, for by the landlord and Tenant
Act 1730, the owners of rents seck were given the same
rights of distress as a landlord has against his tenant under
a lease, namely, a right to distrain as soon as the rent is
in arrear." Robert E, Megarry & p,v. Baker, A Manual of the
Law ofReal Property 409 (4th ed, 1969),
rent service. A rent with some corporeal service incident
to it (as by fealty) and with a right ofdistress, Also
written rent-service,
"[Rjentservice exists only where the relation of landlord
and tenant is found, and in such a case rent derives its
name from the fact that it was given as a substitute for
the services to which the land was originally liable," G,c'
Cheshire, Modern Law ofReal Property 198 (3d ed, 1933), rentcharge
3. Civil law. A contract by which one party conveys
to another party a tract ofland or other immovable
property, to be held by the other party as owner and
in perpetuity, in exchange for payment of an annual
sum of money or quantity of fruits. -Under Louisi
ana law, the rent is essentially redeemable even though
stipulated to be perpetual. The seller may set the terms
of the redemption, which must take place after a stip
ulated time (not to exceed 30 years) La. Civ. Code
art. 2788. See FRUIT (2), -Also termed rent oflands.
[Cases: Landlord and Tenant ~l81.] 4. 1he difference
between the actual return from a commodity or service
and the cost of supplying it; the difference between
revenue and opportunity cost. -rent, vb.
rentage. (17c) Rent or rental.
rent-a-judging. See PRIVATE JUDGI~G.
rental, n, (14c) 1. The amount received as rent.
crescendo rental. A rent payment that gradually
increases at fixed periods during the lease term.
delay rental. Oil & gas. A periodic payment made by
an oil-and-gas lessee to postpone exploration during
the primary lease term. See DRILLING-DELAY RENTAL
CLAUSE; "or" lease, "unless" lease under LEASE; PAID-UP
LEASE. [Cases: Mines and Minerals ~78.1(3).]
net rental. The amount remaining after deducting all
expenses from the gross rental income.
2. The income received from rent. 3. A record of
payments received from rent. rental, adj.
rent, vb. 1. To pay for the use of another's property.
[Cases: Landlord and Tenant 181.] 2. Hist. Slang.
EXTORT (2),
Rental and Related Rights Directive. See DIRECTIVE
ON RENTAL, LENDING A~D CERTAIN NEIGHBORING
RIGHTS.
Rental Directive. See DIRECTIVE O~ RENTAL, LE~mING
AND CERTAIN NEIGHBORING RIGHTS.
rental division order. Oil & gas. A stipulation signed by
those entitled to delay rentals, stating what interest each
owns and how much rental each is to receive. [Cases:
Mines and Minerals ~79.1(3).]
rental right. Copyright, The power ofa copyright owner
to control the use of copies of the work beyond the
first sale, when that use involves offering the copy
to the public for temporary use for a fee (as at a store
renting DVDs and videotapes) or some other commer
cial advantage (as at a hotel offering the loan ofDVDs
or videotapes). -Rental rights are recognized among
members of the European Commission and under
TRIPs. The right also applies to the rental of computer
software. [Cases: Copyrights and Intellectual Property
C--=38.5,)
rentcharge. The right to receive an annual sum from the
income ofland, usu. in perpetuity, and to retake pos
session ifthe payments are in arrears. Also spelled
rent-charge; rent charge. -Also termed fee-farm rent.
"Rent-charge is a rent with liberty to distrain. As when a
man seised of land granteth by a deed poll, or by indenture,
rent control 1412
a yearly rent going out of the same land to another in fee
or fee-tail, or for a term of life, etc with clause of distress,
or maketh a feoffment in fee by indenture, reserving to
himself a certain yearly rent, with clause of distress_" Sir
Henry Finch, Law, or a Discourse Thereof 155 (1759).
"A rentcharge is an annual or periodic payment charged
upon, and payable by the owner of, land. Unlike a rent
service, in the case of a rentcharge there is no tenure
or privity of estate between the parties. The owner of a
rentcharge has no tenurial relationship with the land upon
which it is charged. A rentcharge is a species of incorporeal
property, but, unlike an easement, is incorporeal property
in gross, being enjoyed by the owner personally and not
in the capacity of proprietor of land." Peter Butt, Land Law
330 (2d ed. 1988).
ecclesiastical-tithe rentcharge. Hist. English law. A
rentcharge attached to a benefice or ecclesiastical cor
poration. Under the Tithe Act 1925, a landowner
liable for an ecclesiastical-tithe rentcharge could
redeem the land and discharge the tithe obligation
by making an annual sinking-fund payment to Queen
Anne's Bounty. The tithe was due for 81.5 years ifthe
rentcharge was attached to a corporation or 85 years
if the rentcharge was attached to a benefice. The law
was repealed in 1998. See QUEEN ANNE'S BOUNTY;
BENEFICE.
rent control. (1931) A restriction imposed, usu. by
municipal legislation, on the maximum rent that a
landlord may charge for rental property, and often on
a landlord's power of eviction. [Cases: Landlord and
Tenant C:=>200.10-200.83, 278.1.]
rente (rawnt), n. [French "income, rent"] French law. L
Annual income or rent.
rente fonciere (fawn-syair) [French "ground rent"] A
rent that is payable for the use of land and is per
petual.
rente viagere (vee-ah-zhair). [French "life rent"] A rent
charge or annuity that is payable for life; a life interest
or annuity.
2. (usu. pl.) Interest paid annually by the French gov
ernment on the public debt; a government stock, bond,
or annuity.
rentee. Rare. A tenant.
rente fonciere. See RENTE.
rente viagere. See RENTE.
rentier (rawn-tyay). [French]l. A person who owns or
holds rentes. See RENTE. 2. A person who makes or lives
off an income from property or investment; a stock
holder or annuitant.
rent oflands. See RENT (3).
rent seck. See RENT (2).
rent-seeking, n. Economic behavior motivated by an
incentive to overproduce goods that will yield a return
greater than the cost ofproduction . The term is often
used in the field oflaw and economics. See RENT (4).
rent service. See RENT (2).
rents, issues, and profits. (17c) The total income or profit
arising from the ownership or possession of property. rent strike. (1964) A refusal by a group of tenants to
pay rent until grievances with the landlord are heard
or settled.
renunciation (ri-ndn-see-ay-sh;m), n. (l4c) 1. The express
or tacit abandonment of a right without transferring
it to another. 2. Wills & estates. The act of waiving a
right under a will. At one time, one renounced an
inheritance by intestacy and disclaimed a gift by will.
Today disclaim is common in both situations. -Also
termed (in sense 2) disclaimer. See RIGHT OF ELECTION.
Cf. DISCLAIMER. [Cases: Descent and Distribution ~
72; Wills ~717.] 3. Criminal law. Complete and vol
untary abandonment of criminal purpose -some
times coupled with an attempt to thwart the activity's
success -before a crime is committed . Renuncia
tion can be an affirmative defense to attempt, conspir
acy, and the like. Model Penal Code 5.01(4). -Also
termed withdrawal; abandonment. [Cases: Conspir
acy ~40.4.] 4. See anticipatory repudiation under
REPUDIATION. -renunciative, renunciatory, adj.
renounce, vb.
renvoi (ren-voy), n. [French "sending back"] 1. The
doctrine under which a court in resorting to foreign law
adopts as well the foreign law's conflict-of-Iaws prin
ciples, which may in turn refer the court back to the
law ofthe forum. [Cases: Action C:=> 17.] 2. The problem
arising when one state's rule on conflict oflaws refers a
case to the law ofanother state, and that second state's
conflict-of-Iaw rule refers the case either back to the
law of the first state or to a third state. See CONFLICT
OF LAWS. 3. RECONDUCTION (2).
REO. abbr. REAL ESTATE OWNED.
reo absente (ree-oh ab-sten-tee). [Latin] The defendant
being absent; the absence of the defendant.
reopen. (Of a court) to review (an otherwise final and
nonappealable judgment) for the purpose of possibly
granting or modifying relief. A court will reopen a
judgment or case only in highly unusual circumstances.
See Fed. R. Civ. P. 60. [Cases: Federal Civil Procedure
~2641; Judgment ~336.]
reo praesente (ree-oh pri-zen-tee). [Latin] Hist. The
defendant being present; the presence of the defen
dant.
reorganization, n. 1. Bankruptcy. A financial restruc
turing ofa corporation, esp. in the repayment ofdebts,
under a plan created by a trustee and approved by a
court. See CHAPTER 11. [Cases: Bankruptcy~3501.]
haircut reorganization. A restructuring that reduces
the principal amount ofindebtedness owed to credi
tors. The more common usage is simply haircut <we
took a haircut on that deal>.
2. Tax. A restructuring ofa corporation, as by a merger
or recapitalization, in order to improve its tax treat
ment under the Internal Revenue Code . The Code
classifies the various types ofreorganizations with dif
ferent letters. IRC (26 USCA) 368(a)(I). Cf. RECAPI
TALIZATION.
1413 replevin
A reorganization. A reorganization involving a merger
or consolidation under a specific state statute. [Cases:
Internal Revenue (;=3668.]
B reorganization. A reorganization in which one cor
poration exchanges its voting shares for another cor
poration's voting shares. [Cases: Internal Revenue
3669.]
C reorganization. A reorganization in which one cor
poration exchanges its voting shares for substantially
all the assets ofanother corporation. [Cases: Internal
Revenue (;:::>3670.]
D reorganization. A reorganization in which the cor
poration transfers some or all of its assets to another
corporation that is controlled by the transferor or
its shareholders, and then the stock of the transferee
corporation is distributed. [Cases: Internal Revenue
C::::>3670.J
E reorganization. A reorganization involVing a recapi
talization. [Cases: Internal Revenue (;:::>3671.)
F reorganization. A reorganization involving a mere
change in a corporation's identity, form, or place of
organization. [Cases: Internal Revenue C=:>3672.J
Greorganization. A reorganization involving a transfer
of all or part of the corporation's assets to another
corporation in a bankruptcy or similar proceeding.
[Cases: Internal Revenue C=~; 3673.]
reorganization bond. See adjustment bond under BOND
(3).
reorganization plan. Bankruptcy. A plan of restruc
turing submitted by a corporation for approval by the
court in a Chapter 11 case. See CHAPTER 11. [Cases:
Bankruptcy (;=3531-3570. J
rep. abbr. 1. REPORT. 2. REPORTER. 3. REPRESENTATIVE.
4. REPUBLIC.
repair-and-replace provision. A contractual clause
proViding that a product's defect will be remedied by
repairing or replacing the defective part or product.
[Cases: Sales (;:::>286, 41S(6).]
repair |
part or product.
[Cases: Sales (;:::>286, 41S(6).]
repair doctrine. Patents. The rule that a licensee
who is authorized to produce, use, or distribute a
patented device also has the right to repair and replace
unpatented components. Also termed permissible
repair doctrine. Cf. RECONSTRUCTION. [Cases: Patents
C=:>255.)
reparable injury. See INJURY.
reparation (rep-d-ray-sh;m). (14c) 1. The act of making
amends for a wrong. 2. (usu. pl.) Compensation for an
injury or wrong, esp. for wartime damages or breach
of an international obligation.
reparationefacienda. See DE REPARATIONE FACIENDA.
reparative injunction. See INJUNCTION.
reparole. (1916) A second release from prison on parole,
served under the same sentence for which the parolee
served the first term of parole. [Cases: Pardon and
Parole (;:::>72.1.] repeal, n. (16c) RESCIND (3); esp., abrogation of an
existing law by legislative act. [Cases: Statutes
149-170, 232.J repeal, vb.
express repeal. (17c) Repeal by specific declaration in
a new statute or main motion. [Cases: Statutes
151.]
implied repeal. (ISc) Repeal by irreconcilable conflict
between an old law or main motion and a more recent
law or motion. Also termed repeal by implication.
[Cases: Statutes (;=159.J
repeal by implication. See implied repeal.
repealer. 1. A legislative act abrogating an earlier law.
Also termed repealing act. [Cases: Statutes (;=149-170,
2. One who repeals.
repealing clause. (17c) A statutory provision that repeals
an earlier statute.
repealing statute. See STATUTE.
repeater. See RECIDIVIST.
repeat offender. See OFFENDER.
repetition. Civil law. A demand or action for restitution
or repayment. See SOLUTIO INDEBITI.
repetitum namium (ri-pet-d-t<lm nay-mee-dm). [Law
Latin] Hist. A second, repeated, or reciprocal distress;
WITHERNAM.
repetundae (rep-<l-t<ln-dee). [Latin "things or money
claimed back"] Roman law. See RES REPETUNDAE.
replacement cost. See COST (1).
replacement-cost depreciation method. See DEPRECIA
TION METHOD.
replacement insurance. See INSURANCE.
replead, vb. (l6c) 1. To plead again or anew; to file a new
pleading, esp. to correct a defect in an earlier pleading.
[Cases: Federal Civil Procedure (;:::> 1S38; Pretrial Pro
cedure (;=695.] 2. To make a repleader.
repleader (ree-plee-ddr). (17c) Common-law pleading. A
court order or judgment -issued on the motion of a
party who suffered an adverse judgment -requiring
the parties to file new pleadings because ofsome defect
in the original pleadings. Also termed judgment of
repleader. See MOTION FOR REPLEADER.[Cases: Pleading
C=>286.]
replegiare (ri-plee-jee-air-ee), vb. [Law Latin] Hist. To
take back on pledge or surety; to replevy.
repleviable (ri-plev-ee-d-b<ll), adj. (16c) Capable of
being replevied; recoverable by replevin <repleviable
property>. Also spelled replevisable (ri-plev-d-sd
b<ll). Cf. IRREPLEVIABLE. [Cases: Replevin (;:::>3.)
replevin (ri-pJev-in), n. (17c) 1. An action for the repos
session of personal property wrongfully taken or
detained by the defendant, whereby the plaintiff gives
security for and holds the property until the court
decides who owns it. Also termed claim and delivery.
[Cases: Replevin (;:::>1.) 2. A writ obtained from a court
authorizing the retaking of personal property wrong
fully taken or detained. -Also termed (in sense 2)
1414 replevin
writ ofreplevin. Cf. DETINUE; TROVER. [Cases: Replevin
(;=>34.)
"The action of replevin lies, where specific personal
property has been wrongfully taken and is wrongfully
detained, to recover possession of the property, together
with damages for its detention. To support the action it
is necessary' (a) That the property shall be personal. (b)
That the plaintiff, at the time of suit, shall be entitled to the
immediate possession. (c) That (at common law) the defen
dant shall have wrongfully taken the property (replevin in
the cepit). But, by statute in most states, the action will now
also lie where the property is wrongfully detained, though
it was lawfully obtained in the first instance (replevin in the
detinet). (d) That the property shall be wrongfully detained
by the defendant at the time of suit." Benjaminj. Shipman,
Handbook of Common-Law Pleading 49, at 120 (Henry
Winthrop Ballantine ed., 3d ed. 1923).
"In rare cases, the plaintiff might seek equitable relief to
secure return of a chattel. More commonly, the claim for
recovery of the chattel was pursued at common law under
forms of action such as Detinue or Replevin. American
statutes or court rules tracked the common law generally,
referring to the recovery variously as replevin, detinue,
claim-anddelivery, or sequestration. The statutes usually
allowed the plaintiff to recover the disputed chattel before
trial, though this is now subject to constitutional limits
which have led to procedural revisions in many of the
statutes." 1 Dan B. Dobbs, Law of Remedies 5.17(1), at
917 (2d ed. 1993).
personal replevin. (1844) At common law, an action
to replevy a person out of prison or out of another's
custody. - Personal replevin has been largely super
seded by the writ of habeas corpus as a means of
investigating the legality of an imprisonment. See
HABEAS CORPUS.
replevin in cepit (in see-pit). (18c) An action for the
repossession ofproperty that is both wrongfully taken
and wrongfully detained. [Cases: Replevin C::-9.]
replevin in detinet (in det-i-net). (18c) An action for the
repossession of property that is rightfully taken but
wrongfully detained. [Cases: Replevin C::-9.]
replevin, vb. Archaic. REPLEVY.
replevin bond, See BOND (2).
replevisable. See REPLEVIABLE.
replevisor (ri-plev-<'l-s<'lr). The plaintiff in a repleVin
action.
replevy (ri-plev-ee), n. Archaic. REPLEVIN.
replevy, vb. (16c) 1. To recover possession of (goods) by a
writ of replevin. [Cases: Replevin C::=> 1.J 2. To recover
(goods) by replevin. 3. Archaic. To bail (a prisoner).
replevy bond. See replevin bond under BOND (2).
repliant (ri-ph-<'lnt). (16c) A party who makes a replica
tion (Le., a common-law reply). -Also termed repli
cant.
replicare (rep-l<'l-kair-ee), vb. [Latin] Hist. To reply; to
answer a defendant's plea.
replicatio (rep-li-kay-shee-oh), n. [Latin] Roman law. A
plaintiff's rejection of what a defendant asserted in an
exceptio; a counterexception. PL replicationes (rep-li
kay-shee-oh-neez). Cf. TRIPLICATIO; QUADRUPLICA
no. replication (rep-l<'l-kay-sh<'ln). (lSc) A plaintiff's or com
plainant's reply to a defendant's plea or answer; REPLY
(2). [Cases: Pleading
anticipatory replication. Equity pleading. In an
original bill, the denial of defensive matters that the
defendant might assert. - A defendant who relies on
the anticipated defense must traverse the anticipatory
matter in addition to setting up the defense. [Cases:
Equity C::-133.)
general replication. Equity pleading. A replication con
Sisting ofa general denial of the defendant's plea or
answer and an assertion of the truth and sufficiency
of the bill. [Cases: Equity (;':::"207.J
replication de injuria. Common-law pleading. A
traverse occurring only in the replication whereby
the plaintiff is permitted to traverse the whole sub
stance of a plea consisting merely of legal excuse,
when the matter does not involve a title or interest in
land, authority oflaw, authority of fact derived from
the opposing party, or any matter of record. -Also
termed replication de injuria sua propria, absque tali
causa. [Cases: Pleading (;':=) 179.)
replication perfraudem. Common-law pleading. A rep
lication asserting that the discharge pleaded by the
defendant was obtained by fraud.
special replication. Equity pleading. A replication that
puts in issue a new fact to counter a new matter raised
in the defendant's plea or answer. [Cases: EquityC::
209.J
reply, n. (18c) 1. Civil procedure. In federal practice, the
plaintiff's response to the defendant's counterclaim
(or, by court order, to the defendant's or a third party's
answer). Fed. R. Civ. P. 7(a). [Cases: Federal Civil Proce
dure C::-80I-81S.]2. Common-law pleading.1he plain
tiff's response to the defendant's plea or answer. -The
reply is the plaintiff's second pleading, and it is followed
by the defendant's rejoinder. Also termed (in sense
2) replication. [Cases: Pleading C::-162, 164.] -reply,
vb.
reply brief. See BRlEF.
repo (ree-poh). 1. REPOSSESSION. 2. REPURCHASE AGREE
MENT.
report, n. (14c) 1. Aformal oral or written presentation
offacts or a recommendation for action <according to
the treasurer's report, there is $300 in the bank>.
committee report. Parliamentary law. A report from
a committee to a deliberative assembly on business
referred to the committee or on a matter otherwise
under its charge.
informational report. Parliamentary law. A report
without a recommendation for action.
insider report. Securities. A monthly report that must
be filed with the SEC when more than 10% of a com
pany's stock is traded.
majority report. Parliamentary law. A committee
report, as distingUished from a minority report. See
committee report. Cf. minority report.
1415
minority report. Parliamentary law. A report by a
member or members who dissent from a commit
tee report, setting forth their views, and sometimes
proposing an alternative recommendation . Some
organizatiom require that a minority must reach a
certain size (or obtain permission) before it can file a
report. A typical minimum is one-fourth ofthe com
mittee's members, which guarantees that not more
than one minority report will result.
officer's report. Parliamentary law. A report from an
officer to an organization or deliberative assembly on
business relating to the officer's duties or on a matter
otherwise under the officer's charge.
report with recommendation. Parliamentary law.
A report accompanied by a recommendation for
action.
2. A written account of a court proceeding and
judicial decision <the law clerk sent the court's report
to counsel for both sides>. [Cases: Courts 103.] 3.
(usu. pl.) A published volume of judicial decisions by
a particular court or group of courts <u.s. Reports> .
Generally, these decisions are first printed in tem
porary paperback volumes, and then printed in hard
bound reporter volumes. Law reports may be either
official (published by a government entity) or unoffi
cial (published by a private publisher). Court citations
frequently include the names of both the official and
unofficial reports. -Also termed reporter; law report;
law reporter. Cf. ADVANCE SHEETS. [Cases: Courts (::::>
103; Reports
official report. (usu. pI.) The governmentally approved
set of reported cases within a jurisdiction.
[Cases: Courts 103; Reports
"[lIt may justly be said that all reports are in a sense
'official,' or that to use the term 'official reports' as refer
ring to any particular series of reports is a misnomer, for
it is certainly misleading. The mere fact that each state
authorizes or requires publication of reports of its Supreme
Court decisions, and, to insure such publication, agrees to
purchase a stated number of each volume of the reports,
cannot be said to give such a series pre-eminence as an
'official' publication," William M. Lile et aI., Brief Making
and the Use ofLaw Books 33 (3d ed. 1914).
4. (usu. pl.) A collection of administrative decisions by
one or more administrative agencies. [Cases: Adminis
trative Law and Procedure (::::>507.]5. MINUTES (2).
Abbr. rep. -report, vb.
report agenda. See report calendar under CALENDAR
(4).
report calendar. See CALENDAR (4).
reporter. (14c) 1. A person responsible for making and
publishing a report; esp., a lawyer |
4).
reporter. (14c) 1. A person responsible for making and
publishing a report; esp., a lawyer-consultant who
prepares drafts of official or semi-official writings
such as court rules or Restatements <the reporter to the
Advisory Committee on Bankruptcy Rules explained
the various amendments>. [Cases: Reports (::::>3.J 2.
REPORTER OF DECISIONS. 3. REPORT (3) <Supreme
Court Reporter>. -Abbr. rep.; rptr.
"It may not come amiss to remark that the National Report
System is usually spoken of as the 'Reporters,' and one representation
of the component parts of that system is in like manner
spoken of as a 'Reporter.' Wherever, in this or the succeed
ing chapters of this work, the word is used with a capital, it
refers to one or more of the parts of the National Reporter
System. When the word 'reporter' is used without capital
ization, it refers to the person who reports or edits the
cases in any series of reports to which reference is being
made." William M. Lile et aI., Brief Making and the Use of
Law Books 37 (3d ed, 1914).
reporter of decisions. (1839) Ihe person responsible for
publishing a court's opinions . The position began
historically -in the years before systematic reporting
of decisions was introduced -when lawyers attended
the sessions ofparticular courts, were accredited to
them by the judges, and reported the decisions ofthat
court. Today, the reporter of decisions holds an admin
istrative post as a court employee. The reporter often
has duties that include verifying citations, correcting
spelling and punctuation, and suggesting minor edito
rial improvements before judicial opinions are released
or published. -Often shortened to reporter. -Also
termed court reporter. See COURT REPORTER. [Cases:
Courts <8:::> 103; Reports
reporter's privilege. See journaliSt's privilege (1) under
PRIVILEGE (3).
reporter's record. 1. See RECORD. 2. See TRANSCRIPT.
reporter's syllabus. See HEADNOTE.
reporting company. See COMPANY.
report ofproceedings. See TRANSCRIPT.
reports, n. See REPORT.
Reports, The. A series of13 volumes of caselaw published
in the 17th century by Sir Edward Coke.
report with recommendation. See REPORT (1).
repose (ri-pohz), n. (16c) 1. Cessation of activity; tem
porary rest. 2. A statutory period after which an action
cannot be brought in court, even ifit expires before the
plaintiff suffers any injury. See STATUTE OF REPOSE.
[Cases: Limitation of Actions 165.]
repository (ri-poz-a-tor-ee). (15c) A place where some
thing is deposited or stored; a warehouse or store
house.
repossession, n. (15c) The act Of an instance ofretaking
property; esp., a seller's retaking ofgoods sold on credit
when the buyer has failed to pay for them. Often
shortened to repo. Cf. FORECLOSURE; RESCUE (3).
[Cases: Secured Transactions C-=>228.] -repossess,
vb.
representation, n. (16c) 1. A presentation offact -either
by words or by conduct made to induce someone to
act, esp. to enter into a contract; esp., the manifestation
to another that a fact, including a state of mind, exists
<the buyer relied on the seller's representation that the
roof did not leak>. Cf. MISREPRESENTATION. [Cases:
I'raud
"Representation ... may introduce terms into a contract
and affect performance: or it may induce a contract and so
affect the intention of one of the parties, and the formation
of the contract.. , . At common law, . , , if a representa
tion did not afterwards become a substantive part of the
1416 representation, estoppel by
contract, its untruth (save in certain excepted cases and
apart always from fraud) was immaterial. But if it did. it
might be one of two things: (I) it might be regarded by
the parties as a vital term going to the root of the contract
(when it is usually called a 'condition'); and in this case its
untruth entitles the injured party to repudiate the whole
contract; or (2) it might be a term in the nature only of an
independent subsidiary promise (when it is usually called a
'warranty'), which is indeed a part of the contract, but does
not go to the root of it; in this case its untruth only gives
rise to an action ex contractu for damages, and does not
entitle the injured party to repudiate the whole contract."
William R. Anson, Principles ofthe Law ofContract 218, 222
(Arthur L. Corbin ed., 3d Am. ed. 1919).
affirmative representation. (1842) A representation
asserting the existence ofcertain facts to
a given subject matter. [Cases: Contracts
Fraud C:~)9.)
false representation. See MISREPRESENTATION.
material representation. (lBc) A representation to
which a reasonable person would attach importance
in deciding his or her course of action in a transac
tion. Material representation is a element
of an action for fraud, [Cases: Contracts
Fraud C=::' lB.)
promissory representation. (1842) A representation
about what one will do in the future; esp" a repre
sentation made by an insured about what will happen
during the time of coverage, stated as a matter
of expectation and amounting to an enforceable
promise, [Cases: Fraud C=:) 12; Insurance
2. The act or an instance of standing for or acting on
behalf of another, esp, by a lawyer on behalf ofa client
<Clarence Darrow's representation ofJohn
[Cases: Attorney and Client C=:'>77-lOl.J
concurrent representation. The simultaneous repre
sentation ofmore than one person in the same matter,
See CONFLICT OF INTEREST (2),
3. The fact ofa litigant's having such a close alignment
of interests with another person that the other is con
sidered as having been present in the litigation <the
named plaintiff provided adequate representation for
the absent class members>,
adequate representation. (1939) A close alignment of
interests between actual parties and potential parties
in a lawsuit, so that the interests of potential parties
are sufficiently protected by the actual parties . The
concept of adequate representation is often used in
procedural contexts, For example, if a case is to be
certified as a class action, there must be adequate rep
resentation by the named plaintiffs ofall the poten
tial class members. Fed. R, eiv. P. 23(a)(4), And if a
nonparty is to intervene in a lawsuit, there must not
already be adequate representation of the nonparty
by an existing party, Fed, R. Civ. P, 24(a)(2), [Cases:
Federal Civil Procedure 164, 316; Parties
35.13,41,J
virtual representation. (1934) A party's maintenance
of an action on behalf ofothers with a similar interest,
as a class representative does in a class action, See VIRTUAL-REPRESENTATION DOCTRINE. lCases:
Federal Civil Procedure 103,2, 163; Judgment
Parties
4. The assumption by an heir ofthe rights ofhis or her
predecessor <each child takes a share by representa
tion>, See PER STIRPES, [Cases: Wills G=550,)5. (usu,
pi,) InCllaw, A friendly but firm statement of a per
ceived wrong, This is the mildest form ofcomplaint
that one nation can make to another. -Also termed
diplomatic representation. -represent, vb.
"Representations are in the nature of vigorous arguments
employed in the hope of securing a modification of the
action complained of withom implying necessarily or
expressly an intention ultimately to seek redress by more
vigorous means," Ellery C. Stowell, International Law: A
Restatement ofPrinciples in Conformity with Actual Practice
427 (1931).
representation, estoppel by. See estoppel by representa
tion under ESTOPPEL.
representation election. See ELECTIO~ (3).
representative, n, (17c) 1. One who stands for or acts on
behalf of another <the owner was the football team's
representative at the labor negotiations>. See AGENT (2).
[Cases: Principal and Agent C=> L]
accredited representative. (1846) A person with des
ignated authority to act on behalf of another person,
group, or organization, usu, by being granted that
authority by law or by the rules ofthe group or orga
nization <as an officer of the union, she was the
accredited representative of the employees in the
wage dispute>,
class representative. (1942) A person who sues on
behalf of a group of plaintiffs in a class action. -Also
termed named plaintiff. See CLASS ACTION, [Cases:
Federal Civil Procedure C=> 164; Parties (;:::::> 35.13.]
independent personal representative. See personal
representative.
lawful representative. (l7c) 1. A legal heir. 2. An
executor, administrator, or other legal representa
tive, -Also termed legal representative, See personal
representative, [Cases: Executors and Administrators
(;:::::> 14-18,)
legal-personal representative. (l8c) L When used by
a testator referring to personal property, an executor
or administrator. [Cases: Executors and Administra
tors (;:::::> 14-18.] 2, When used by a testator referring
to real property, one to whom the real estate passes
immediately upon the testator's death, 3. When used
concerning the death ofa mariner at sea, the public
administrator, executor, or appointed administrator
in the seaman's state ofresidence.
legal representative. 1. See lawful representative, 2. See
personal representative.
personal representative. (l8c) A person who manages
the legal affairs of another because of incapacity
or death, such as the executor ofan estate . Tech
nically, an executor is a personal representative
named in a will, while an administrator is a personal
1417
representative not named in a will. -Also termed
independent personal representative; legal represen
tative. [Cases: Executors and Administrators ~,
14-18.)
registered representative. (1945) A person approved
by the SEC and stock exchanges to sell securities to
the public. Formerly also termed customer's man;
customer's person. [Cases: Securities Regulation
40.12-40.14.)
2. A member of a legislature, esp. of the lower house
<one senator and one representative attended the
rally>. [Cases: States C=c28.] -Abbr. rep.
representative action. (1911) 1. CLASS ACTION. 2. DERIV
ATIVE ACTION (1).
representative capacity. See CAPACITY (1).
representee. One to whom a representation is made.
"First, where the representor can show that he was not
negligent, he will not be liable under the 1967 Act; and
secondly, where the representee wants to claim damages at
the contractual rate, for loss of his bargain, it may be that
the Misrepresentation Act will not suffice." P.S. Atiyah, An
Introduction to the Law ofContract 165 (3d ed. 1981).
representor. One who makes a representation.
"[I]t is arguable that even where a contracting party does
not intend to guarantee the accuracy of what he says, the
other party is at least entitled to assume that due care has
been taken by the representor." P.S. Atiyah, An Introduction
to the Law ofContract 309 (3d ed. 1981).
repressed-memory syndrome. A memory disorder char
acterized by an intermittent and extensive inability to
recall important personal information, usu. following
or concerning a traumatic or highly stressful occur
rence, when the memory lapses cannot be dismissed as
normal forgetfulness. -The theoretical basis for this
syndrome was proposed by Sigmund Freud in 1895.
lhe American Psychiatric Association has recognized
the syndrome officially by the medical term dissocia
tive amnesia. Although the APA has affirmed that some
people suffering partial or total dissociative amnesia
may later recover some or all ofthe memory of the trau
matic or stressful event, the existence ofthe syndrome
is controversial. Some studies indicate that "repressed"
memories, at least in some patients, may be a product
ofsuggestions made by mental-health therapists rather
than of any actual experience. Abbr. RMS. Also
termed recovered-memory syndrome; dissociative
amnesia. Cf. FALSE-MEMORY SYNDROME.
repressive tax. See sin tax under TAX.
reprieve (ri-preev), n. (l6c) Temporary postponement
ofthe carrying out of a criminal sentence, esp. a death
sentence. Cf. COMMUTATION (2); PARDON. [Cases:
Pardon and Parole -reprieve, vb.
'The term reprieve is derived from reprendre, to keep
back, and signifies the withdrawing of the sentence for
an interval of time, and operates in delay of execution."
1 Joseph Chitty, A Practical Treatise on the Criminal Law
757 (2d ed, 1826).
reprimand, n. (17c) In professional responsibility, a form
of disciplinary action -imposed after trial or formal reprise
charges -that declares the lawyer's conduct improper
but does not limit his or her right to practice law; a
mild form of lawyer discipline that does not restrict
the lawyer's ability to practice law. [Cases: Attorney and
Client (;::59.7,59.8.] reprimand, vb.
private reprimand. An unpublished communica
tion between a diSciplinary agency and a wrongdo
ing attorney, admonishing the attorney about the
|
lished communica
tion between a diSciplinary agency and a wrongdo
ing attorney, admonishing the attorney about the
improper conduct. -Sometimes a published repri
mand that does not identify the lawyer by name is
considered a private reprimand. [Cases: Attorney and
Client C=c59.7.]
public reprimand. A published notice, appearing usu.
in a legal newspaper or bar journal, admonishing
the attorney about improper conduct and describ
ing the impropriety for the benefit of other members
of the legal profession. [Cases: Attorney and Client
C=c59.8.]
reprisal (ri-prI-zdl). 1. (often pl.) Int'llaw. 1be use of
force, short ofwar, against another country to redress
an injury caused by that country. [Cases: War and
National Emergency <~::>12.]
'''Reprisals' is a word with a long history, and modern
writers are not agreed on the meaning which should be
given to it today. Literally and historically it denotes the
seizing of property or persons by way of retaliation, .,
Reprisals when they are taken today are taken by a state,
but some writers would still limit the word to acts of
taking or withholding the property of a foreign state or its
nationals, for example by an embargo, whilst others would
abandon the historical associations and use it to denote
any kind of coercive action not amounting to war whereby
a state attempts to secure satisfaction from another for
some wrong which the latter has committed against it." J.L.
Brierly, The Law ofNations 321-22 (5th ed. 1955).
general reprisal. A reprisal by which a nation directs
all its military officers and citizens to redress an
injury caused by another nation. -An example is
a command to seize the property of the offending
nation wherever it is found.
negative reprisal. A reprisal by which a nation refuses
to perform an obligation to another nation, such as
the fulfillment ofa treaty.
positive reprisal. A reprisal by which a nation forcibly
seizes another nation's property or persons.
special reprisal. A reprisal by which a nation autho
rizes an aggrieved private citizen to redress an injury
caused by another nation. -An example is an autho
rization for a private citizen to seize a particular vessel
ofthe offending nation. See LETTERS OF MARQUE.
2. (often pl.) Int'llaw. An act of forceful retaliation
for injury or attack by another country; formerly, in
war, the killing ofprisoners in response to an enemy's
war crimes (now unlawful). Cf. RETORSION. 3. Anv act
or instance of retaliation, as by an employer ag~inst
a complaining employee. [Cases: Labor and Employ
ment C=c77L]
reprise (ri-pnz), n. An annual deduction, duty, or
payment out of a manor or estate, such as an annuity.
1418 reprobation
reprobation (rep-ra-bay-sh.:m). The act of raising an
objection or exception, as to the competency of a
witness or the sufficiency ofevidence. reprobation
ary (rep-rd-bay-sh<l-ner-ee), reprobative (rep-fa-bay
tiv), adj. reprobate (rep-ra-bayt), vb.
reprobator (rep-ra-bay-tar). Scots law. Rist. A challenge
to disqualify a witness or to invalidate the testimony
of an objectionable witness. Also termed action of
reprobator.
reproduction right. Copyright. A copyright holder's
exclusive right to make copies or phonorecords of the
protected work. Unauthorized copying constitutes
infringement. Also termed right of reproduction.
[Cases: Copyrights and Intellectual PropertyC=36.]
reproductive rights. A person's constitutionally pro
tected rights relating to the control ofhis or her pro
creative activities; specif., the duster of civil liberties
relating to pregnancy, abortion, and sterilization, esp.
the personal bodily rights of a woman in her decision
whether to become pregnant or bear a child. The
phrase includes the idea of being able to make repro
ductive decisions free from discrimination, coercion, or
violence. Human-rights scholars increasingly consider
many reproductive rights to be protected by interna
tional human-rights law. [Cases: Civil Rights
1029.]
republic, n. A system ofgovernment in which the people
hold sovereign power and elect representatives who
exercise that power. It contrasts on the one hand
with a pure democracy, in which the people or commu
nity as an organized whole wield the sovereign power
of government, and on the other with the rule of one
person (such as a king or dictator) or of an elite group
(such as an oligarchy, aristocracy, or junta). Abbr.
rep. Cf. DEMOCRACY. republican, adj.
"A republic is a government which (a) derives all of its
powers directly or indirectly from the great body of the
people and (b) is administered by persons holding their
office during pleasure, for a limited period, or during good
behavior." Robert A. Dahl, A Preface to Democratic Theory
10 (1956).
republican government. See GOVERNMENT.
republication, n, (18c) I. 'Ihe act or an instance ofpub
lishing again or anew. 2. Wills & estates. Reestablish
ment ofthe validity of a previously revoked will by
repeating the formalities of execution or by using a
codiciL. The result is to make the old will effective
from the date of republication. Also termed revali
dation. Cf. REVIVAL (2). [Cases: Wills 196-202.J
3. Defamation. The act or an instance of repeating or
spreading more widely a defamatory statement.
republish, vb.
repudiate, vb. (16c) 1. To reject or renounce (a duty or
obligation); esp., to indicate an intention not to perform
(a contract), [Cases: Contracts 2. Rist. To
divorce or disown (one's wife).
repudiatee (ri-pyoo-dee-a-tee). A party to a contract
that has been repudiated by the other party. [Cases:
Contracts C:::>313.J repudiation (ri-pyoo-dee-ay-shan), n. (16c) 1. Eccles.
law. Rare. A person's refusal to accept a benefice. 2. A
contracting party's words or actions that indicate an
intention not to perform the contract in the future; a
threatened breach of contract. Cf. REJECTION (1), (2);
RESCISSION; REVOCATION (1). [Cases: Contracts C:::>
313(2).] repudiatory (ri-pyoo-dee-a-tor-ee), repudi
able (ri-pyoo-dee-a-b31), adj.
"A repudiation is (a) a statement by the obligor to the
obligee indicating that the obligor will commit a breach
that would of itself give the obligee a claim for damages
for total breach ... , or (b) a voluntary affirmative act
which renders the obligor unable or apparently unable to
perform without such a breach." Restatement (Second) of
Contracts 250 (1979).
"In order to constitute a repudiation, a party's language
must be sufficiently positive to be reasonably inter
preted to mean that the party will not or cannot perform.
Mere expression of doubt as to his Willingness or ability
to perform is not enough to constitute a repudiation,
although such an expression may give an obligee rea
sonable grounds to believe that the obligor will commit
a seriOUS breach and may ultimately result in a repUdia
tion .... However, language that under a fair reading
'amounts to a statement of intention not to perform except
on conditions which go beyond the contract' constitutes
a repudiation." Restatement (Second) of Contracts 250,
cmt. b (1979).
anticipatory repudiation. (1913) Repudiation of a con
tractual duty before the time for performance, giving
the injured party an immediate right to damages for
total breach, as well as discharging the injured party's
remaining duties ofperformance . This type ofrepu
diation occurs when the promisor unequivocally
disavows any intention to perform when the time for
performance comes. Once the repudiation occurs,
the nonrepudiating party has three options: (I) treat
the repudiation as an immediate breach and sue for
damages; (2) ignore the repudiation, urge the repu
diator to perform, wait for the specified time ofper
formance, and sue if the repudiating party does not
perform; or (3) cancel the contract. Also termed
renunciation. See anticipatory breach under BREACH
OF CONTRACT. [Cases: Contracts
The Restatement lists three actions that constitute anticipa'
tory repudiation: "(a) a positive statement to the promisee
or other person having a right under the contract, indi
cating that the promisor will not or cannot substantially
perform his contractual duties; (b) transferring or contract
ing to transfer to a third person an interest in specific land,
goods, or in any other thing essential for the substantial
performance of his contractual duties; (c) any voluntary
affirmative act which renders substantial performance of
his contractual duties impossible, or apparently impos
sible." Restatement (Second) of Contracts 318 (1979).
total repudiation. (1859) An unconditional refusal by
a party to perform the acts required by a contract.
This type of repudiation justifies the other party
in refraining from performance. [Cases: Contracts
C=313.]
repudiator (ri-pyoo-dee-ay-t<lr). One who repudiates;
esp., a party who repudiates a contract. [Cases: Con
tracts C:::>313.]
1419
repudium (ri-pyoo-dee-dm), n. [Latin] Roman law. The
revocation of betrothal or marriage by either the man
or the woman. _ After Augustus, it was necessary to
send the other spouse a letter of repudiation in order
to terminate the marriage. Cf. DIVORTlUM.
repugnancy (ri-Pdg-ndn-see). (1865) An inconsistency
or contradiction between two or more parts of a legal
instrument (such as a contract or statute). [Cases: Con
tracts (;::::; 162; Statutes (;::::;207.J
repugnant (ri-pag-n;:mt), adj. (14c) Inconsistent or irrec
oncilable with; contrary or contradictory to <the court's
interpretation was repugnant to the express wording of
the statute>.
repugnant verdict. See VERDICT.
repurchase, n. The act or an instance of buying some
thing back or again; esp., a corporation's buying back
ofsome or all ofits stock at market price. See REDEMP
TION. [Cases: Corporations 120.]-repurchase,
vb.
repurchase agreement. A short-term loan agreement by
which one party sells a security to another party but
promises to buy back the security on a specified date
at a specified price. -Often shortened to repo. [Cases:
Corporations (;::::;82, 120.J
repurchase price. See redemption price under PRICE.
reputation, n. (14c) The esteem in which a person is held
by others. -Evidence of reputation may be introduced
as proof of character whenever character evidence is
admissible. Fed. R. Evid. 405. -Also termed personal
reputation. See character evidence under CHARACTER.
[Cases: Criminal Law Evidence (;::::; 106; Wit
nesses (;::::;338.J reputationaI, adj.
reputational evidence. See reputation evidence under
EVIDENCE.
reputation evidence. See EVIDENCE.
reputed manor. See MANOR.
request, n. Parliamentary law. A motion by which a
member invokes a right, seeks permission for the
exercise ofa privilege, or asks a question. Cf. MOTION
(2); DEMAND (2); INQUIRY (2); POINT (2).
requestfor leave to modify a motion. See request for
permission to modify a motion.
request for leave to withdraw a motion. See request for
permission to withdraw a motion.
requestfor permission to modify a motion. A motion
by which the mover seeks an amendment to his or
her own motion after the chair has stated the motion.
-1ne mover controls a motion only until the chair
states the question. After that, the motion belongs to
the assembly and the mover cannot modify it without
the assembly's permission. See friendly amendment
under AMENDMENT (3). -Also termed request for
leave to modify a motion.
request for permission to withdraw a motion. A
motion by the mover to end consideration of the
motion without reaching a decision on its merits. See request for proposal
request for permission to modify a motion. -Also
termed request for leave to withdraw a motion.
request to be excused from a duty. A motion seeking
relief from a duty that an officer or other member has
been charged with.
request to read papers. 1. A motion asking permis
sion to read aloud from printed matter. Reading
aloud is generally not allowed without permission.
2. A motion asking that the chair or secretary read
aloud a document for the mover's or the assembly's
information.
request for admission. (1939) Civil procedure. In pretrial
discovery, a party's written factual statement served
on another party who must admit, deny, or object to
the substance of the statement. _ Ordinarily, many
requests for admission appear in one document. The
admitted statements, along with any statements not
denied or objected to, will be treated by the court as
established and therefore do not have to be proved at
trial. Fed. R. Civ. P. 36. Abbr. RFA. Also termed
request for admissions; request to admit; notice to admit.
[Cases: Federal Civil Procedure (;::::; 1671; Pretrial Pro
cedure (~='471.]
request for continued examination. Patents. A means of
negating the final action on a patent so that the appli
cant |
request for continued examination. Patents. A means of
negating the final action on a patent so that the appli
cant can file amendments, new claims, etc. to show that
the invention is patentable as of the original applica
tion date . Unlike a continuation application, a request
for continued examination keeps a patent alive as ifno
final decision had been made. It allows prosecution of
claims that have been rejected in a final office action
to continue. -Abbr. RCE. Cf. CONTINUATION. [Cases:
Patents (;::::; 104.J
request for instructions. (1942) Procedure. During trial,
a party's written request that the court instruct the jury
on the law as set forth in the request. See Fed. R. Civ.
P.51. Abbr. RFI. -Also termed request to charge.
[Cases: Federal Civil Procedure C=;)2176; Trial (:~
259.]
request for leave to withdraw a motion. See REQUEST.
request for leave to modify a motion. See REQUEST.
request for permission to withdraw a motion. See
REQUEST.
request for permission to modify a motion. See
REQUEST.
request for production. (1944) Procedure. In pretrial
discovery, a party's written request that another party
provide specified documents or other tangible things
for inspection and copying. Fed. R. Civ. P. 34. Abbr.
RFP. Also termed document request; request for pro
duction ofdocuments; notice to produce; demand for
document inspection. [Cases: Federal Civil Procedure
1551; Pretrial Procedure (;::::;331.]
request for proposal. An invitation to prospective sup
pliers or contractors to submit proposals or bids to
provide goods or services . Unlike most invitations for
bids, an RFP requires bidders to give more information
1420 request for reconsideration
than the proposed price. For instance, bidders may
have to provide evidence of good financial condition,
acceptable technical capability, stock availability, and
customer satisfaction. -Abbr. RFP. [Cases: Municipal
Corporations 0=>238; Public Contracts States
0=>98; United States ~64.25.]
request for reconsideration. Patents. An applicant's
submission offurther arguments after a patent claim's
rejection. [Cases: Patents C=c104.)
request for reexamination. Patents. A formal process of
asking the Patent and Trademark Office to review an
in~forcepatent's validity in light ofprior~art references.
-Anyone, including the patent owner or an infringer,
may request a patent's reexamination. [Cases: Patents
~140.)
request for relief. See PRAYER FOR RELIEF.
request to admit. See REQUEST FOR ADMISSION.
request to be excused from a duty. See REQUEST.
request to charge. See REQUEST FOR INSTRUCTIONS.
request to read papers. See REQUEST.
required~records doctrine. (1945) The principle that
the privilege against self-incrimination does not apply
when one is being compelled to produce business
records that are kept in accordance with government
regulations and that involve public aspects. -Some
courts have held that certain medical records and
tax forms fall within this doctrine and are thus not
protected by the privilege against self-incrimination.
[Cases: Witnesses (:=0298.)
required-request law. A law mandating that hospital
personnel discuss with a deceased patient's relatives the
possibility of an anatomical gift. -The Uniform Ana
tomical Gift Act (not in effect in some states) mandates
a required-request law. [Cases: Dead Bodies
required reserve. See RESERVE.
requirement for division. See RESTRICTION (4).
requirement for restriction. See RESTRICTION (4).
requirements contract. See CONTRACT.
requirements testing. See ACCEPTANCE TESTING.
requisition (rek-w;l-zish-;m), n. 1. An authoritative,
formal demand <a state governor's requisition for
another state's surrender ofa fugitive>. [Cases: Extra
dition and Detainers C=c34.] 2. A governmental seizure
of property <the state's requisition of the shopping
center during the weather emergency>. See TAKING
(2). -requisition, vb.
requisitionist. One who makes a formal demand (as
for the performance of an obligation or the return ofa
fugitive). See REQUISITION (1).
requisitory letter. See LETTER OF REQUEST.
rere-county (reer-kown-tee). Hist. A subsidiary English
county court held by the sheriff on the day after the
regular county court. Also spelled rere county; rier
county.
re-refer. See REFER. res (rays or reez or rez), n. [Latin "thing"] (17c) 1. An
object, interest, or status, as opposed to a person <juris
diction of the res the real property in Colorado>.
[Cases: Courts 0=> 16.]2. The subject matter ofa trust;
CORPUS (1) <the stock certificate is the res ofthe trust>.
[Cases: Trusts C=c 1.) Pi. res.
res accessoria (rays ak-ses-or-ee-a). [Latin] Civil law. An
accessory thing; a thing that is related to a principal
thing. PI. res accessoriae.
res adjudicata (rays a-joo-di-kay-ta or -kah-t;l). See RES
JUDICATA.
resale, n. (17c) 1. The act ofselling goods or property
previously sold to a buyer who breached the sales
contract to someone else. UCC 2706. [Cases: Sales
C-J 332-339.)2. A retailer's selling ofgoods, previously
purchased from a manufacturer or wholesaler, usu. to
consumers or to someone else further down the chain
ofdistribution. resell, vb.
resale-price maintenance. A form of price-fixing in
which a manufacturer forces or persuades several dif
ferent retailers to sell the manufacturer's product at
the same price, thus preventing competition. -Resale
price maintenance is not per se illegal under antitrust
law, but it is illegal ifit produces anticompetitive effects
under the rule ofreason. A manufacturer may suggest
a retail price as long as it does not compel retailers to
sell at that price. See RULE OF REASON; vertical price
fixillgunder PRICE-FIXING. Antitrust and Trade
Regulation
res aliena (rays ay-Iee-ee-na or al-ee-). [Latin] Archaic.
The property belonging to another.
res alienari prohibita (rays ay-lee-J-nair-I proh-hib
i-t;l). [Law Latin] Hist. A thing that cannot be alien
ated.
res aliena scienter legata (rays ay-Iee-ee-nJ [or al-ee-]
SI-en-tar la-gay-ta). [Latin] Hist. The property of
another knowingly bequeathed that is, property
that a testator did not own but purported to bequeath
by will.
res caduca (rays b-d[y]oo-ka). [Latin] Civil law. A fallen
thing; an escheat. PI. res caducae.
resceit (ri-seet). Hist. The admittance of an interested
third party to plead in a case between two others; inter
vention.
rescind (ri-sind), vb. (17c) 1. To abrogate or cancel (a
contract) unilaterally or by agreement. [Cases: Con
tracts C=c249.] 2. To make void; to repeal or annul
<rescind the legislation>. 3. Parliamentary law. To void,
repeal, or nullify a main motion adopted earlier.
Also termed annul; repeal. rescindable, adj.
rescind and expunge. See EXPUNGE (2).
rescissio (ri-sis[h)-ee-oh). [Latin] Civil law. Annulment
or voidance of a juridical act; rescission. PI. rescis
siones.
rescission (ri-sizh-an), n. (17c) 1. A party's unilateral
unmaking of a contract for a legally sufficient reason,
such as the other party's material breach, or a judgment
1421
rescinding the contract; VOIDAKCE . Rescission is
generally available as a remedy or defense for a non
defaulting party and is accompanied by restitution of
any partial performance, thus restoring the parties to
their precontractual positions. Also termed avoid
ance. [Cases: Contracts G='249.] 2. An agreement by
contracting parties to discharge all remaining duties
of performance and terminate the contract. -Also
spelled recision; recission. -Also termed (in sense 2)
agreement ofrescission; mutual rescission; abandon
ment. Cf. REJECTION (2); REPUDIATION (2); REVOCATION
(1). [Cases: Contracts G=252.] -rescissory (ri-sis-<l
ree or ri-siz-), adj.
"The [UCCI takes cognizance of the fact that the term
'rescission' is often used by lawyers, courts and business
men in many different senses; for example, termination
of a contract by virtue of an option to terminate in the
agreement, cancellation for breach and avoidance on the
grounds of infancy or fraud. In the interests of clarity of
thought -as the consequences of each of these forms
of discharge may vary the Commercial Code carefully
distinguishes three circumstances. 'Rescission' is utilized
as a term of art to refer to a mutual agreement to discharge
contractual duties. 'Termination' refers to the discharge
of duties by the exercise of a power granted by the agree
ment. 'Cancellation' refers to the putting an end to the
contract by reason of a breach by the other party. Section
2-720, however, takes into account that the parties do not
necessarily use these terms in this way." John D. Calamari
&Joseph M. Perillo, The Law ofContracts 21-2. at 864-65
(3d ed. 1987).
equitable rescission. (1889) Rescission that is decreed
by a court of equity. [Cases: Cancellation of Instru
ments (;::; 1.]
legal rescission. (1849) 1. Rescission that is effected by
the agreement ofthe parties. [Cases: Contracts C=>
251.] 2. Rescission that is decreed by a court oflaw, as
opposed to a court ofequity.
"The modern tendency is to treat reSCission as equitable,
but rescission was often available at law. If plaintiff had
paid money, or had delivered goods. he could rescind by
tendering whatever he had received from defendant and
suing at law to recover his money or replevy his goods.
But if he had delivered a promissory note or securities,
or conveyed real estate, rescission required the court to
cancel the instruments or compel defendant to reconvey.
This relief was available only in equity. Many modern courts
ignore the distinction .... But versions of the distinction
are codified in some states:' Douglas Laycock, Modern
American Remedies 627-28 (3d ed. 2002).
rescissory action. See ACTION (4).
rescissory damages. See DAMAGES.
res communes (rays k<l-myoo-neez), n. pl. [Latin
"common things"] Civil law. Things common to all;
things that cannot be owned or appropriated, such as
light, air, and the sea. La. Civ. Code art. 449.
res controversa (rays kon-tra-var-sa). [Latin] Civil law.
A matter in controversy; a pOint in question_ PI. res
controversae.
res coronae (rays k<l-roh-nee), n. pl. [Latinl Hist. Things
ofthe Crown, such as ancient manors, homages of the
king, and liberties. rescue syndrome
res corporales (rays kor-pa-ray-Ieez), n. pI. [Latin] Civil
law. Corporeal things; tangible things that are percep
tible to the senses. La. Civ. Code art. 461. See corporeal
thing under THING.
rescous (res-kas). 1. RESCUE (2). 2. RESCUE (3).
rescript (ree-skript), n. (I7c) 1. A judge's written order
to a court clerk explaining how to dispose ofa case. 2.
An appellate court's written decision, usu. unsigned,
that is sent down to the trial court. [Cases: Appeal and
Error C=> 1192; Criminal Law y 1192; Federal Courts
(;:::")949.] 3. A Roman emperor's or a Pope's written
answer to a legal inquiry or petition. Cf. PRECES.
Also termed (when the reply is to a private citizen)
annotation; subnotation; subscription; (when the reply
is to an official body) epistle. 4. A duplicate or counter
part; a rewriting.
rescue, n. (14c) 1. The act or an instance of saving or
freeing someone from danger or captivity. 2. The
forcible and unlawful freeing of a person from arrest
or imprisonment. [Cases: Rescue C=>1.1
"A rescue signifies a forcible setting at liberty, against law,
of a person duly arrested. It is necessary, that the rescuer
should have knowledge that the person whom he sets at
liberty has been apprehended for a criminal offence. if he
be in the custody of a private person; but if he be under
the care of an officer. then he is to take notice of it at his
periL" 1 Joseph Chitty, A Practical Treatise on the Criminal
Law62 (2d ed. 1826).
3. The forcible retaking by the owner ofgoods that have
been lawfullv distrained. Also termed (in senses 2 &
3) rescous. C REPOSSESSION. 4. lnt'llaw. The retaking
of a prize by persons captured with it, so that the
property is legally restored to its original owner. See
POSTLI |
aking
of a prize by persons captured with it, so that the
property is legally restored to its original owner. See
POSTLIMINIUM (3). rescue, vb.
rescue clause. See SUE-AND-LABOR CLAUSE.
rescue doctrine. (1926) Torts. 'The principle that a tort
feasor who negligently endangered a person is liable
for injuries to someone who reasonably attempted to
rescue the person in danger. The rationale for this
doctrine is that an attempted rescue of someone in
danger is always foreseeable. Thus, if the tortfeasor
is negligent toward the rescuee, the tortfeasor is also
negligent toward the rescuer. Also termed danger
invites-rescue doctrine. Cf. EMERGENCY DOCTRINE;
GOOD SAMARITAK DOCTRINE. [Cases: Negligence C=>
510(3).]
"Danger invites rescue. The cry of distress is the summons
to relief. The law does not ignore these reactions of the
mind in tracing conduct to its consequences. It recognizes
them as normal. It places their effects within the range of
the natural and probable. The wrong that imperils life is
a wrong to the imperiled victim; it is a wrong also to his
rescuer .... The railroad company whose train approaches
without signal is a wrongdoer toward the traveler surprised
between the rails, but a wrongdoer also to the bystander
who drags him from the path .... The emergency begets
the man. The wrongdoer may not have foreseen the coming
of a deliverer. He is accountable as if he had." Wagner v.
International Ry. Co., 133 N.E. 437, 437-38 (N.Y. 1921).
rescue syndrome. Family law. A situation in which a
child in a custody battle expresses a preference for the
parent perceived by the child to be the "weaker" ofthe
1422 rescussu
two, in the belief that the parent needs the child . This
is a form of parent-alienation syndrome. One parent
may overtly or subtly act increasingly dependent on
the child, leading the child to believe that he or she is
responsible for the parent's comfort, happiness, and
protection. The child may also believe that one parent
is actively harming the other and attempt to protect the
"weaker" parent by choosing to stay with that parent,
even if the child would actually prefer to live with the
"stronger" parent. Cf. LOLLIPOP SYNDROME; PARENT
ALIENATION SYNDROME.
rescussu. See DE RESCUSSU.
res derelicta (rays der-<J-lik-t<J). [Latin] A thing thrown
away or forsaken by its owner; abandoned property.
res dominans (rays dom-<J-nanz). [Latin] The dominant
property entitled to enjoy a servitude. See dominant
estate under ESTATE.
research and development. An effort (as by a company
or business enterprise) to create or improve products or
services, esp. by discovering new technology or advanc
ing existing technology. -Abbr. Rand D; R&D.
Research and Special Programs Administration. A
unit in the U.S. Department of Transportation respon
sible for conducting research and engaging in special
programs through several offices, including the Office
of Hazardous Materials Safety, the Office of Pipeline
Safety, the Transportation Systems Center, the Office
of Emergency Transportation, the Office of Program
Management and Administration, and the Office of
Aviation Information Management. -Abbr. RSPA.
research attorney. See ATTORNEY.
research memorandum. See MEMORANDUM.
reseiser (ri-see-z<Jr). Hist. The taking of lands by the
monarch in a case in which a general livery or ouster
Ie main was previously misused.
resentencing, n. (1878) The act or an instance ofimposing
a new or revised criminal sentence. -resentence, vb.
reservation. (l5c) 1. The creation of a new right or
interest (such as an easement), by and for the grantor,
in real property being granted to another. Cf. EXCEP
TION (3). [Cases: Deeds C=:> 141; Easements C=:> 14.]
implied reservation. (1867) An implied easement
that reserves in a landowner an easement across a
portion of sold land, such as a right-of-way over land
lying between the seller's home and the only exit.
An implied reservation arises only if the seller could
have expressly reserved an easement, but for some
reason failed to do so. See implied easement under
EASEMENT. [Cases: Easements C=:> 17.]
"If the implied easement is in favor of the conveyee and is
appurtenant to the tract conveyed, it is called an implied
grant; if the implied easement is in favor of the conveyor
and is appurtenant to the tract retained, it is called an
implied reservation." Ralph E. Boyer et aI., The Law of
Property 311 (4th ed. 1991).
2. The establishment ofa limiting condition or qualifi
cation; esp., a nation's formal declaration, upon signing
or ratifying a treaty, that its willingness to become a party to the treaty is conditioned on the modification or
amendment of one or more provisions of the treaty as
applied in its relations with other parties to the treaty.
[Cases: Treaties C=:> 3.] 3. A tract of public land that is
not open to settlers but is set aside for a special purpose;
esp., a tract of land set aside for use by indigenous
peoples. -Also termed (in sense 3) reserve; reserved
land; withdrawn land. [Cases: Indians C=:> 12.]
reservation-of-rights letter. Insurance. A notice of an
insurer's intention not to waive its contractual rights to
contest coverage or to apply an exclusion that negates
an insured's claim. -Also termed reservation ofrights.
Insurance C~3111(2), 3120.]
reserve, n. 1. Something retained or stored for future use;
esp., a fund of money set aside by a bank or an insur
ance company to cover future liabilities.
amortization reserve. An account created for book
keeping purposes to extinguish an obligation gradu
ally over time.
bad-debt reserve. A reserve to cover losses on uncol
lectible accounts receivable.
excess reserve. The portion of a bank's reserve against
deposits in excess of the amount of reserve required
bylaw.
legal reserve.lhe minimum amount of liquid assets
that a bank or an insurance company must maintain
by law to meet depOSitors' or claimants' demands.
[Cases: Banks and Banking 14,503; Insurance
C=:> 1139.]
loss reserve.!. An insurance company's reserve that
represents the estimated value offuture payments, as
for losses incurred but not yet reported. [Cases: Insur
ance ~:;::::;) 1139.] 2. A bank's reserve set aside to cover
possible losses, as from defaulting loans.
mean reserve. In insurance, the average of the begin
ning reserve (after the premium has been paid tor
the policy year) and the ending reserve of the policy
year.
policy reserve. An insurance company's reserve that
represents the difference between net premiums
and expected claims for a given year. This type
of reserve is kept by life-insurance companies.
[Cases: Insurance 1139.]
required reserve. The minimum amount of money, as
required by the Federal Reserve Board, that a bank
must hold in the form ofvault cash and deposits with
regionall;ederal Reserve Banks. [Cases: Banks and
Banking C=:> 14,351-359.]
sinking-fund reserve. A reserve used to pay long-term
debt. See sinkingfund under FUND (1).
unearned-premium reserve. An insurance compa
ny's reserve that represents premiums that have been
recei ved in advance but not yet applied to policy
coverage . If a policyholder cancels coverage before
the policy expires but has already paid a premium for
the full policy period, the insurance company refunds
1423
the policyholder out of this reserve. [Cases: Insur
ance ~~1139.]
2. RESERVATION (3). 3. See net value under VALUE (2).
reserve, vb.
reserve account. See impound account under ACCOUNT.
reserve bank. See member bank under BANK.
Reserve Board. See FEDERAL RESERVE BOARD OF GOV
ERNORS.
reserve clause. A clause in a professional athlete's
contract restricting the athlete's right to change teams,
even after the contract expires . Reserve clauses are
uncommon in modern professional sports. Cf. FREE
AGENCY.
reserved easement. See EASEMENT.
reserved land. See RESERVATION (3).
reserved point oflaw. See POINT OF LAW.
reserved power. See POWER (3).
Reserved Power Clause. See TENTH AMENDMENT.
reserved surplus. See appropriated surplus (1) under
SURPLUS.
reserve militia. See MILITIA.
reserve price. See PRICE.
reserve ratio. 'Ihe Federal Reserve Board's measurement
of a member bank's required reserves. See required
reserve under RESERVE.
primary reserve ratio. Ihe ratio between a bank's
required reserves (cash in vault plus deposits with
Federal Reserve Banks) and its demand and time
deposits.
secondary reserve ratio. The ratio between a bank's
government securities and its demand and time
deposits.
reset, n. Scots law.!. The act or an instance of know
ingly receiving stolen goods. 2. Archaic. The harbor
ing or sheltering of a criminal or outlaw. -resetter,
n. -reset, vb.
resettlement, n. (17c) 1. The settlement ofone or more
persons in a new or former place. See SETTLEMENT (6).
2. The reopening ofan order or decree for the purpose
of correcting a mistake or adding something omitted.
[Cases: Motions (;=>49.]- resettle, vb.
res fit inempta (rays fit in-emp-t;l). [Latin] Hist. The
object is regarded as unbought. This is the ancient
way ofsaying, "The sale is off."
resfungibiles (rays fan-jib-a-Ieez), n. pI. [Latin] Civil law.
Fungible things; things that are commercially inter
changeable.
res gestae (rays ;es-tee also jes-tI), n. pI. [Latin "things
done"] (17c) The events at issue, or other events con
temporaneous with them. In evidence law, words
and statements about the res gestae are usu. admis
sible under a hearsay exception (such as present sense
impression or excited utterance). Where the Federal
Rules of Evidence or state rules fashioned after them residence
are in effect, the use of res gestae is now out of place.
See Fed. R. Evid. 803(1), (2). -Also termed res gesta.
[Cases: Criminal Law C;:::-'363-368; Evidence~' 118
128.]
"The Latin expression 'res gestae' or 'res gesta,' literally
'things done' or 'thing transacted,' has long served as a
catchword ... [Tlhe phrase has frequently served both
to let in utterances which in strictness were not admis
sible and to exclude utterances which might well have been
admitted. And frequently also its indefiniteness has served
as a basis for rulings where it was easier for the judge
to invoke this imposing catchword than to think through
the real question involved. The phrase is antiquated. By
modern judges it is being gradually discarded. It is super
fluous, and serves only to obscure the logic of the rules.
It should be left to oblivion." John H. Wigmore, A Students'
Textbook of the Law of Evidence 279 (1935).
'The res gestae embraces not only the actual facts of the
transaction and the circumstances surrounding it, but the
matters immediately antecedent to and having a direct
causal connection with it, as well as acts immediately fol
lowing it and so closely connected with it as to form in
reality a part of the occurrence." State v. Fouquette. 221
P.2d 404, 416-17 (Nev. 1950).
res gestae witness. See WITNESS.
res habiles (rays hab-<l-Ieez), n. pl. [tatin] Civil law.
Things that may be acquired by prescription.
resiance (rez-ee-<lnts). Archaic. Residence; abode.
resiant (rez-ee-<lnt), adj. Archaic. Continually dwelling
or abiding in a place; resident.
resiant, n. Archaic. A resident.
residence. (14c) 1. The act or fact of living in a given place
for some time <a year's residence in New Jersey>.
Also termed reSidency. 2. The place where one actually
lives, as distinguished from a domicile <she made her
residence in Oregon>. Residence usu. just means
bodily presence as an inhabitant in a given place;
domicile usu. requires bodily presence plus an inten
tion to make the place one's home. A person thus may
have more than one residence at a time but only one
domicile. Sometimes, though, the two terms are used
synonymously. Cf. DOMICILE (2). [Cases: Domicile
(;=>2.J 3. A house or other fixed abode; a dwelling <a
three-story residence>. 4. The place where a corpora
tion or other enterprise does business or is registered to
do business <Pantheon Inc.'s principal residence is in
Delaware>. [Cases: Corporations (;=>52,503(1),666.]
habitual residence.!. Family law. A person's custom
ary place of residence; esp., a child's customary place
of residence before being removed to some other
place. The term, which appears as an undefined
term in the Hague Convention, is used in deter
mining the country having a presumed paramount
interest in the child. [Cases: Child Custody (;=>804.]
2. Copyright. An established place, esp. a country, in
which one lives for the long term, usu. without being |
2. Copyright. An established place, esp. a country, in
which one lives for the long term, usu. without being
a citizen ofthe place . The Berne Convention makes
habitual residence an alternative to legal domicile in a
member country to qualify for copyright protection
but leaves the exact definition ofthe term to member
countries.
1424 residency
residency. (14c) 1. A place of residence, esp. an official
one <the diplomat's residency>. 2. RESIDENCE (1) <one
year's residency to be eligible for in-state tuition>.
resident, adj. 1. Affiliated with or working for a particu
lar person or company <resident agent>. 2. Dwelling
in a place other than one's home on a long-term basis
<the hospital's resident patient>.
resident, n. (15c) 1. A person who lives in a particular
place. 2. A person who has a home in a particular place.
In sense 2, a resident is not necessarily either a citizen
or a domiciliary. Cf. CITIZEN (1); DOMICILIARY.
resident agent. See registered agent under AGENT (2).
resident alien. See ALIEN.
resident ambassador. See AMBASSADOR.
residential care. Family law. Foster-care placement
involving residence in a group home or institution.
This type of foster care is most commonly used for ado
lescents who have been adjudged to be delinquents or
status offenders.
residential cluster. Land-use planning. An area ofland
developed as a unit with group housing and open
common space. Cf. PLANNED-UNIT DEVELOPMENT.
[Cases: Zoning and Planning (;::=>66,256.]
residential community treatment center. See HALFWAY
HOUSE.
residential custody. See PHYSICAL CUSTODY (2).
residential parent. See PARENT.
residential responsibility. Overnight responsibility for
a child. See Principles ofthe Law ofFamily Dissolu
tion: Analysis and Recommendations 3.02 (2000). See
CUSTODY; dual-residential parent, residential parent
under PARENT.
primary residential responsibility. Predominant over
night responsibility for a child.
residential time. See VISITATION (2).
residua (ri-zij-oo-<=1). pl. RESIDUUM.
residual, adj. (l6c) Of, relating to, or constituting a
residue; remaining; leftover <a residual claim> <a
residual functional disability>.
residual, n. 1. A leftover quantity; a remainder. 2. (often
pl.) A disability remaining after an illness, injury, or
operation. 3. (usu. pI.) A fee paid to a composer or per
former for each repeated broadcast (esp. on television)
ofa film, program, or commerciaL [Cases: Copyrights
and Intellectual Property (=48.]
residual estate. See residuary estate under ESTATE (3).
residual value. See salvage value under VALUE (2).
residuary (ri-zij-oo-er-ee), adj. (18c) Of, relating to, or
constituting a residue; residual <a residuary gift>.
residuary, n. 1. See reSiduary estate under ESTATE (3). 2.
See residuary legatee under LE.]ATEE.
reSiduary bequest. See BEQUEST.
residuary clause. (18c) Wills & estates. A testamentary
clause that disposes of any estate property remaining after the satisfaction of all other gifts. -Also termed
omnibus clause. [Cases: Wills C-J586.J
residuary devise. See DEVISE.
reSiduary devisee. See DEVISEE.
residuary estate. See ESTATE (3).
residuary legacy. See LEGACY.
residuary legatee. See LEGATEE.
residue. (14c) 1. Something that is left over after a part is
removed or disposed of; a remainder. 2. See residuary
estate under ESTATE (3).
residuum (ri-zij-oo-am). (17c) 1. That which remains;
a residue. 2. See residuary estate under ESTATE (3). PI.
residua (ri-zij-oo-d).
residuum rule. Administrative law. The principle that
an agency decision based partly on hearsay evidence
will be upheld on judicial review only if the decision
is founded on at least some competent evidence . The
residuum rule has generally been rejected by federal
and state courts. [Cases: Administrative Law and Pro
cedure
resignation, n. (14c) 1. The act or an instance ofsurren
dering or relinquishing an office, right, or claim. [Cases:
Officers and Public Employees (;::=>62.] 2. A formal
notification of relinquishing an office or position. 3.
Hist. The surrender to the lord of the vassal's interest
in land. resign, vb.
resile (ri-zIl), vb. 1. To retract (a statement, allegation,
etc.). 2. To draw back (from an agreement, contract,
etc.). 3. To return to one's original position.
res immobiles (rays i-moh-b<l-Ieez), n. pl. [Latin] Civil
law. Immovable things; chattels real. See IMMOBILIA.
res incorporales (rays in-kor-pa-ray-leez), n. pl. [Latin]
Civil law. Incorporeal things; intangible things that
are not perceptible to the senses. See incorporeal thing
under THING.
res in privatorum patrimonio. See RES PRIVATAE.
res integra (rays also in-teg-r;}). [Latin "an
entire thing"] See RES NOVA.
res inter alios acta (rays in-tdr ay-Iee-ohs ak-td). [Latin
"a thing done between others"] 1. Contracts. The com
mon-law doctrine holding that a contract cannot unfa
vorably affect the rights ofa person who is not a party to
the contract. [Cases: Contracts G'::::; 186(1).] 2. Evidence.
The rule prohibiting the admission of collateral facts
into evidence. [Cases: Criminal Law (;::=>338(1),369.1;
Evidence (;::=>99, 130.]
res ipsa loquitur (rays ip-sd loh-kwd-tdr). [Latin "the
thing speaks for itself'] (17c) Torts. The doctrine pro
viding that, in some circumstances, the mere fact ofan
accident's occurrence raises an inference ofnegligence
that establishes a prima facie case. Often shortened
to res ipsa. [Cases: Negligence
"The phrase 'res ipsa loquitur' is a symbol for the rule that
the fact of the occurrence of an injury, taken with the sur
rounding circumstances, may permit an inference or raise a
presumption of negligence, or make out a plaintiff's prima
1425
facie case, and present a question of fact for defendant
to meet with an explanation. It is merely a short way of
saying that the circumstances attendant on the accident
are of such a nature as to justify ajury, in light of common
sense and past experience, in inferring that the accident
was probably the result of the defendant's negligence, in
the absence of explanation or other evidence which the
jury believes." Stuart M. Speiser, The Negligence Case: Res
Ipsa Loquitur 1:2, at 5-6 (1972).
"It is said that res ipsa loquitur does not apply if the cause
of the harm is known. This is a dark saying. The applica
tion of the prinCiple nearly always presupposes that some
part of the causal process is known, but what is lacking
is evidence of its connection with the defendant's act or
omission. When the fact of control is used to justify the
inference that defendant's negligence was responsible it
must of course be shown that the thing in his control in
fact caused the harm. In a sense, therefore, the cause of
the harm must be known before the maxim can apply."
H.l.A. Hart & Tony Honore, Causation in the Law 419-20
(2d ed. 1985).
"Res ipsa loquitur is an appropriate form of circumstantial
evidence enabling the plaintiff in particular cases to estab
lish the defendant's likely negligence. Hence the res ipsa
loquitur doctrine, properly applied, does not entail any
covert form of strict liability .... The doctrine implies that
the court does not know, and cannot find out, what actually
happened in the individual case. Instead, the finding of
likely negligence is derived from knowledge of the causes
of the type or category of accidents involved." Restatement
(Third) of Torts 15 cmt. a (Discussion Draft 1999).
res ipsa loquitur test (rays ip-s<lloh-kw<l-tar). (1962)
A method for determining whether a defendant has
gone beyond preparation and has actually committed
an attempt, based on whether the defendant's act itself
would have indicated to an observer what the defendant
intended to do. Also termed equivocality test. See
ATTEMPT (2). [Cases: Criminal Law (;:::;;44.]
resisting arrest. (1851) The crime of obstructing or
opposing a police officer who is making an arrest.
Also termed resisting lawful arrest. [Cases: Obstructing
Justice
resisting process. See OBSTRUCTION OF PROCESS.
resisting unlawful arrest. (1905) The act of opposing
a police officer who is making an unlawful arrest.
Most jurisdictions have accepted the Model Penal
Code position prohibiting the use of force to resist an
unlawful arrest when the person arrested knows that
a police officer is making the arrest. But some juriS
dictions allow an arrestee to use nondeadly force to
prevent the arrest. See Model Penal Code 3. [Cases:
Obstructing Justice (;:::;; 3.]
res judicata (rays joo-di-kay-ta or -kah-ta). [Latin
"a thing adjudicated"] (I7c) 1. An issue that has
been definitively settled by judicial decision. [Cases:
Judgment (;:::;;540,584,585.) 2. An affirmative defense
barring the same parties from litigating a second
lawsuit on the same claim, or any other claim arising
from the same transaction or series of transactions
and that could have been but was not raised in
the first suit. The three essential elements are (1) an
earlier decision on the issue, (2) a final judgment on the
merits, and (3) the involvement ofthe same parties, or
parties in privity with the original parties. Restatement resolution
(Second) ofJudgments 17,24 (1982). Also termed
res adjudicata; claim preclusion; doctrine ofres judicata.
Cf. COLLATERAL ESTOPPEL. [Cases: Judgment C=>540,
584,948(1).]
"'Res judicata' has been used in this section as a general
term referring to all of the ways in which one judgment
will have a binding effect on another. That usage is and
doubtless will continue to be common, but it lumps under
a single name two quite different effects ofjudgments. The
first is the effect of foreclosing any litigation of matters
that never have been litigated, because of the determina
tion that they should have been advanced in an earlier
suit. The second is the effect of foreclosing relitigation of
matters that have once been litigated and decided. The
first of these, preclusion of matters that were never liti
gated, has gone under the name, 'true res judicata,' or the
names, 'merger' and 'bar.' The second doctrine, preclusion
of matters that have once been decided, has usually been
called 'collateral estoppel.' Professor Allan Vestal has long
argued for the use of the names 'claim preclusion' and
'issue preclusion' for these two doctrines [Vestal, Rationale
ofPreclUSion, 9 St. Louis U. L.j. 29 (1964)], and this usage is
increasingly employed by the courts as it is by Restatement
Second of Judgments." Charles Alan Wright, The Law of
Federal Courts 100A, at 722-23 (5th ed. 1994).
res litigiosae (rays li-tij-ee-oh-see), n. pl. [Latin] Civil law.
Things that are in litigation; property or rights that are
the subject of a pending action.
res mancipi (rays man-sa-pI). [Latin "things ofmandp
ium"] Roman law. Property, specifically Italic land with
its rustic servitudes and beasts of draft or burden, that
can be transferred only by a formal ceremony of man
cipation. -Also termed mancipi res; things mancipi.
See MANCIPATION.
res merae facultatis (rays meer-ee fak-al-tay-tis). [Law
Latin] Scots law. A matter of mere power.
"Res merae facultatis .... Such, for example, is the right
which a proprietor has of building upon his own property,
or which anyone has of walking upon the seashore, or
sailing upon the sea, or on any navigable river. It is a right
which mayor may not be exercised at the pleasure of
him who holds it; and such rights are never lost by their
non-exerCise for any length of time, because it is of their
essential character that they may be used or exercised at
any time." John Trayner, Travner's Latin Maxims 554 (4th
ed.1894).
res mobiles (rays moh-ba-leez), n. pl. [Latin] Civil law.
Movable things; chattels personal.
res nee mancipi (rays nek man-sa-pI). [Latin "things not
of mancipium"] Roman law. Property that can be trans
ferred without a formal ceremony of mancipation.
Also termed things nee mancipi.
res non est integra (rays non est in-t;)-gra). [Latin] l |
termed things nee mancipi.
res non est integra (rays non est in-t;)-gra). [Latin] lUst.
The original position has changed; performance has
taken place (in whole or in part).
res nova (rays noh-va). [Latin "new thing"]l. An unde
cided question aflaw. 2. A case of first impression.
Also termed res integra. See case offirst impression
under CASE.
res nullius (rays na-h-as). [Latin "thing of no one"] A
thing that can belong to no one; an ownerless chattel.
resolution. (17c) 1. Parliamentary law. A main motion
that formally expresses the sense, will, or action of a
1426 resolutions committee
deliberative assembly (esp. a legislative body). - A reso
lution is a highly formal kind of main motion, often
containing a preamble, and one or more resolving
clauses in the form, "Resolved, That ...."
concurrent resolution. (17c) A resolution passed by one
house and agreed to by the other. -It expresses the
legislature's opinion on a subject but does not have
the force oflaw.
joint resolution. (17c) A legislative resolution passed by
both houses. _ It has the force oflaw and is subject to
executive veto. [Cases: Statutes ~22,229.]
simple resolution. (I8c) A resolution passed by one
house only. _ It expresses the opinion or affects the
internal affairs of the passing house, but it does not
have the force oflaw.
2. Formal action by a corporate board of directors
or other corporate body authorizing a particular act,
transaction, or appointment. -Also termed corporate
resolution.
shareholder resolution. A resolution by shareholders,
usu. to ratify the actions ofthe board of directors.
3. A document containing such an expression or autho
rization.
resolutions committee. See COMMITTEE.
Resolution Trust Corporation. A federal agency estab
lished to act as a receiver for insolvent federal savings
and-loan associations and to transfer or liquidate those
associations' assets. _ The agency was created when the
Federal Savings and Loan Insurance Corporation was
abolished in 1989. Abbr. RTC. See FEDERAL SAVINGS
AND LOAN INSURANCE CORPORATION. [Cases: Building
and Loan Associations C=~'42(6).]
resolutive condition. See resolutory condition under
CONDITION (2).
resolutory (ri-zahl-y~-tor-ee), adj. (1818) Operating or
serving to annul, dissolve, or terminate <a resolutory
clause>.
resolutory condition. See CONDITION (2).
resolving dause. See CLAUSE.
resort, n. Something that one turns to for aid or refuge
<the court of last resort>. -resort, vb.
RESPA (res-pd). abbr. REAL ESTATE SETTLEMENT PRO
CEDURES ACT.
respite (res-pit), n. (l4c) 1. A period oftemporary delay;
an extension of time. 2. A temporary suspension of
a death sentence; a reprieve. [Cases: Sentencing and
Punishment ~1798.] 3. A delay granted to a jury or
court for further consideration of a verdict or appeal. 4.
Civil law. An agreement between a debtor and several
creditors for an extension of time to repay the various
debts. La. Civ. Code art. 3084. -respite, vb.
forced respite. A respite in which some ofthe creditors
are compelled by a court to give the same extension of
time that the other creditors have agreed to. voluntary respite. A respite in which all the credi
tors agree to the debtor's proposal for an extension
oftime.
respondeat ouster (ri-spon-dee-at ow-stdr). [Law Latin
"let him make further answer"] An interlocutory
judgment or order that a party who made a dilatory
plea that has been denied must now plead on the
merits. -Also termed judgment respondeat ouster.
[Cases: Pleading ~~111.47.]
"In case offelony, if the plea be held bad, the judgment
is respondeat ouster; or rather, as the defendant gener
ally pleads over to the felony, the jury are charged again,
and that at the same time with the issue on the plea of
autrefois acquit, to inquire of the second issue, and the
trial proceeds as if no plea in bar had been pleaded." 1
Joseph Chitty, A Practical Treatise on the Criminal Law 461
(2d ed. 1826).
respondeat superior (ri-spon-dee-at soo-peer-ee-dr
or sd-peer-ee-or). [Law Latin "let the superior make
answer"] (17c) Torts. The doctrine holding an employer
or principal liable for the employee's or agent's wrongful
acts committed within the scope of the employment or
agency. -Also termed master-servant rule. See SCOPE
OF EMPLOYMENT. [Cases: Labor and Employment
3026; Principal and Agent ~159(2).]
"Most courts have made little or no effort to explain the
result, and have taken refuge in rather empty phrases, such
as 'he who does a thing through another does it himself,'
or the endlessly repeated formula of 'respondeat superior,'
which in itself means nothing more than 'look to the man
higher up.'" W. Page Keeton et aI., The Law of Torts 69,
at 500 (5th ed. 1984).
responde book. Hist. Scots law. The chancellery's record
of all duties payable by heirs who obtained royal
warrants for possession of the decedent's lands.
respondent. (16c) 1. The party against whom an appeal is
taken; APPELLEE. '_ In some appellate courts, the parties
are designated as petitioner and respondent. In most
appellate courts in the United States, the parties are
designated as appellant and appellee. Often the designa
tions depend on whether the appeal is taken by writ of
certiorari (or writ of error) or by direct appeal. [Cases:
Appeal and Error C=>326; Federal Courts ~545.l.]
2. The party against whom a motion or petition is filed.
Cf. PETITIONER. 3. At common law, the defendant in an
equity proceeding. 4. Civil law. One who answers for
another or acts as another's security.
respondent bank. See BANK.
respondentia (ree-spon-den-shee-a or res-pon-). [Law
Latin fro Latin respondere "to answer"] A loan secured
by the cargo on one's ship rather than the ship itself.
Cf. BOTTOMRY. [Cases: Shipping
respondentia bond. See BOND (2).
respondere non debet (ri-spon-d~-ree non deb-dt).
[Latin] Common-law pleading. The prayer of a plea in
which the defendant insists that he or she does not have
to answer - because of a privilege, for example.
responsalis (res-pon-say-lis). [Law Latin) L Hist. One
who appears and answers for another. 2. Eccles. law. A
proctor. See APOCRISARlUS.
1427
responsa prudentium (ri-spon-sd proo-den-shee-dm).
[Latin "the answers of the learned"] Roman law. The
opinions and judgments of eminent lawyers or jurists
on questions oflaw addressed to them . The responsa
prudentium originally constituted part of the early
Roman civil law. Roman citizens seeking legal advice,
as well as magistrates and judges, often referred legal
questions to leading jurists so as to obtain their opinions
(responsa). The responsa of some leading jurists were
collected, much in the manner of caselaw digests,
and many of them passed into Justinian's Digest. The
phrase responsa prudentium gradually migrated to
the common law, but today it is ofprimarily historical
use. -Also spelled responsa pruden tum.
"[Tlhe judex, or as we would now call him, the referee,
might have no technical knowledge of law whatever. Under
such conditions the unlearned judicial magistrates natu
rally looked for light and leading to the jurisconsults who
instructed them through their responsa prudentium, the
technical name given to their opinions as experts, which
were promptly recorded on tablets by their students or
disciples." Hannis Taylor, The Science of Jurisprudence
90-91 (1908).
"In [claSSical Latin) responsa prudentium is the usual form,
but most of the legal sources ... have prudentum follow
ing the example of Blackstone (1765)." The Oxford English
Dictionary(2d ed. 1989).
response. Patents. A patent applicant's answer to an
office action, usu. countering the examiner's rejections
and objections and often amending the claims. lCases:
Patents C;:::::o 109.]
responsibility, n. (lSc) 1. LIABILITY (1). 2. Criminal law.
A person's mental fitness to answer in court for his or
her actions. See COMPETENCY. [Cases: Mental Health
C;:::::o432.1 3. Criminal law. Guilt. -Also termed (in
senses 2 & 3) criminal responsibility. responsible,
adj.
"[As for] the ambiguities of the word 'responsibility,' ...
it is, I think, still important to distinguish two of the very
different things this difficult word may mean. To say that
someone is legally responsible for something often means
only that under legal rules he is liable to be made either
to suffer or to pay compensation in certain eventualities.
The expression 'he'll pay for it' covers both these things.
In this the primary sense of the word, though a man is
normally only responsible for his own actions or the harm
he has done, he may be also responsible for the actions of
other persons if legal rules so provide. Indeed in this sense
a baby in arms or a totally insane person might be legally
responsible ~-again, if the rules so provide; for the word
simply means liable to be made to account or pay and we
might call this sense of the word 'legal accountability'. But
the new idea -the programme of eliminating responsibil
ity ...~ is not, as some have feared, meant to eliminate legal
accountability: persons who break the law are not just to
be left free. What is to be eliminated are enquiries as to
whether a person who has done what the law forbids was
responsible at the time he did it and responsible in this
sense does not refer to the legal status of accountability.
It means the capacity, so far as this is a matter of a man's
mind or will, which normal people have to control their
actions and conform to law. In this sense of responsibility
a man's responsibility can be said to be 'impaired'." H.LA.
Hart, "Changing Conceptions of Responsibility," in Punish
ment and Responsibility 186, 196-97 (1968).
"Responsibility means answerability or accountability.
It is used in the criminal law in the sense of 'criminal rest
responsibility' and hence means answerability to the
criminal law." Rollin M. Perkins & Ronald N. Boyce, Criminal
Law and Procedure: Cases and Materials 399 (5th ed.
1977).
responsible broker-dealer. See BROKER.
responsive, adj. (15c) Giving or constituting a response;
answering <the witness's testimony is not responsive to
the question>. [Cases: Witnesses C=-"':"'248.]
responsive action. Patents. A patent applicant's answer
to an examiner rejections in an office action . To be
responsive, the answer must address all of the exam
iner's issues in detail, rather than merely submitting
substitute claims. [Cases: Patents C;:::::o lOS.]
responsive pleading. See PLEADING (1).
responsive verdict. See VERDICT.
res privatae (rays pri-vay-tee), n. pI. [Latin "private
things"] Roman & civil law. Things that can be owned
by individuals or by the state and its political subdivi
sions in their capacity as private citizens. La. Civ. Code
art. 450. Also termed res in privatorum patrimo
nio.
res publicae (rays pab-li-see), n. pl. [Latin "public things"]
Roman & civil law. Things that cannot be indiVidually
owned because they belong to the public, such as the
sea, navigable waters, and highways. Public things are
owned by the state and its political subdivisions in their
capacity as public persons. La. Civ. Code art. 449.
res quotidianae (rays kwoh-tid-ee-ay-nee), n. pl. [Latin]
Civil law. Everyday matters; familiar points or ques
tions.
res religiosae (rays ri-lij-ee-oh-see), 11. pl. [Latin] Civil
law. Religious things; esp., burial places.
res repetundae (rays rep-;J-tiln-dee). [Latin "things due
to be repaid"] Roman law. I. Money or things that can
be reclaimed by a person who was forced to give them
to a public officiaL 2. The illegal act offorcing someone
to give money or things; extortion. -Sometimes (erro
neously) shortened to repetundae. See CRIMEN REPE
TUNDARUM.
res sanctae (rays sangk-tee), n. pl. [Latin "sacred things"]
Roman law. The walls of a city . The Romans con
sidered maintenance of city walls so important that
damage to a city's walls was a capital offense.
res serviens (rays s3r-vee-enz). [Latin] The servient
property subject to a servitude. See servient estate
under ESTATE (4).
res singulorum (rays sing-gy;J-lor-dm). [Latin] Hist. 'The
property of individuals.
res sua (rays sI.Y]OO-J). [Latin] Hist. One's own property.
rest, vb. (1905) 1. (Of a litigant) to voluntarily conclude
presenting evidence in a trial <after the |
. (1905) 1. (Of a litigant) to voluntarily conclude
presenting evidence in a trial <after the police officer's
testimony, the prosecution rested>. 2. (Of a litigant) to
voluntarily conclude presenting evidence in (a trial)
<the defense rested its case after presenting just two
witnesses>. In sense 1, the verb is intransitive; in
sense 2, it is transitive.
1428 Restatement
Restatement. One of several influential treatises pub
lished by the American Law Institute describing the
law in a given area and guiding its development. The
Restatements use a distinctive format of black-letter
rules, official comments, illustrations, and reporter's
notes. Although the Restatements are frequently cited
in cases and commentary, a Restatement provision
is not binding on a court unless it has been officially
adopted as the law by that jurisdiction's highest court.
Restatements have been published in the following areas
oflaw: Agency, Conflict of Laws, Contracts, Employ
ment Law, Foreign Relations Law of the United States,
Judgments, Law Governing Lawyers, Property, Restitu
tion, Security, Suretyship and Guaranty, Torts, Trusts,
and Unfair Competition. Also termed Restatement
afthe Law.
"We speak of the work which the organization should
undertake as a restatement; its object should not only be
to help make certain much that is now uncertain and to
simplify unnecessary complexities, but also to promote
those changes which will tend better to adapt the laws to
the needs of life. The character of the restatement which we
have in mind can be best described by saying that it should
be at once analytical, critical and constructive." Commit
tee on the Establishment of a Permanent Organization for
the Improvement of the law (Elihu Root, chairman), Report
Proposing the Establishment ofan American Law Institute,
1 All Proc. 14 (1923).
restater. (1955) An author or reporter ofa Restatement.
restaur (res-tor). 1. The recourse that insurers (esp.
marine underwriters) have against each other accord
ing to the date of their insurance. 2. The recourse that
marine insurers have against a ship's master if a loss
occurs through the master's fault or negligence. 3.
The recourse that one has against a guarantor or other
person under a duty to indemnify. -Also spelled
restor.
restitutio in integrum (res-ta-t[y]oo-shee-oh in in-ta
gram). [Latin] Roman & civil law. Restoration to the
previous condition or the status quo . In Roman law,
a praetor could accomplish this by annulling a contract
or transaction that was strictly legally valid but ineq
uitable and by restoring the parties to their previous
legal relationship. The phrase is still sometimes used in
American law (esp. in Louisiana) when a court annuls a
contract and orders restitution on equitable grounds.
restitution, n. (Bc) 1. A body ofsubstantive law in which
liability is based not on tort or contract but on the defen
dant's uniust enrichment. See UNJUST ENRICHMENT. 2.
The set of remed ies associated with that body oflaw, in
which the measure ofrecovery is usu. based not on the
plaintiff's loss, but on the defendant's gain. Cf. COM
PENSATION; DAMAGES. 3. Return or restoration ofsome
specific thing to its rightful owner or status. 4. Com
pensation for loss; esp., full or partial compensation
paid by a criminal to a victim, not awarded in a civil
trial for tort, but ordered as part ofa criminal sentence
or as a condition of probation. [Cases: Damages
1; Implied and Constructive Contracts C=4; Infants
C=224; Sentencing and Punishment <.r'-=' 1973, 2100
2217.] restitutionary, ad). "The term 'restitution' appears in early decisions, but
general recognition probably began with the publication
of the Restatement ofRestitution [in 1937]. The term is not
wholly apt since it suggests restoration to the successful
party of some benefit obtained from him. Usually this will
be the case where relief is given, but by no means always.
There are cases in which the successful party obtains res
titution of something he did not have before, for example
a benefit received by the defendant from a third person
which justly should go to the plaintiff." 1 George E. Palmer,
The Law of Restitution 1.1, at 4 (1978).
"'Restitution' is an ambiguous term, sometimes referring
to the disgorging of something which has been taken and
at times referring to compensation for injury done. Often,
the result under either meaning of the term would be
the same. If the plaintiff has been defrauded into paying
$1,000 to the defendant, his loss and the defendant's gain
coincide. Where they do not coincide, as where the plain
tiff is out of pocket more than the defendant has gained
and the defendant's conduct is tortious, the plaintiff will
recover his loss in a quasicontractual or equitable action
for restitution. Unjust impoverishment as well as unjust
enrichment is a ground for restitution. If the defendant is
guilty of a nontortious misrepresentation, the measure of
recovery is not rigid but, as in other cases of restitution,
such factors as relative fault, the agreed upon risks, and
the fairness of alternative risk allocations not agreed upon
and not attributable to the fault of either party need to be
weighed." John D. Calamari &Joseph M. Perillo, The Law or
Contracts 923, at 376 (3d ed. 1987).
restitutionary redress. See REDRESS.
restitution damages. See DAMAGES.
restitutione extracti ab ecclesia (res-ta-t[y]oo-shee-oh
nee ek-strak-tI ab e-klee-z[h]ee-a). [Latin] Eccles. law.
A writ restoring someone who had been suspected or
accused ofa felony to the church.
restitutione temporalium (res-ta-t[y]oo-shee-oh-nee
tem-pa-ray-Iee-am). [Latin] Eccles. law. A writ direct
ing the sheriff to restore the temporalities ofa diocese
to a bishop. See TEMPORALITY (2).
restitution interest. See INTEREST (2).
restitutory interdict. See INTERDICT (1).
restitutory right. See RIGHT.
restor. See RESTAUR,
restorative justice. An alternative delinquency sanction
focused on repairing the harm done, meeting the
victim's needs, and holding the offender responsible
tor his or her actions . Restorative-justice sanctions
use a balanced approach, producing the least restrictive
disposition while stressing the offender's accountability
and providing relief to the victim. The offender may be
ordered to make restitution, to perform community
service, or to make amends in some other way that the
court orders.
restorative motion. See MOTION (2).
restoratory motion. See restorative motion under
MOTION (2).
restraining order. (1876) 1. A court order prohibiting
family violence; esp., an order restricting a person
from harassing, threatening, and sometimes merely
contacting or approaching another specified person .
This type of order is issued most commonly in cases
ofdomestic violence. A court may grant an ex parte
restraining order in a family-violence case if it is nec
essary to (1) achieve the government's interest in pro
tecting victims offamily violence from further abuse,
(2) ensure prompt action where there is an immediate
threat ofdanger, and (3) provide governmental control
by ensuring that judges grant such orders only where
there is an immediate danger of such abuse. Fuentes
v. Shevin, 407 U.S. 67, 92 S.Ct. 1983 (1972). Also
termed protection order; protective order; stay-away
order. See ex parte motion under MOTION. [Cases: Pro
tection of Endangered Persons <8=>70-82.] 2. TEMPO
RARY RESTRAINING ORDER. 3. A court order entered to
prevent the dissipation or loss ofproperty.
restraining power. See POWER (3).
restraining statute. See disabling statute under STAT
UTE.
restraint, n. (ISc) 1. Confinement, abridgment, or limita
tion <a restraint on the freedom ofspeech>. See PRIOR
RESTRAINT. 2. Prohibition of action; holding back
<the victim's family exercised no restraint -they
told the suspect exactly what they thought ofhim>. 3.
RESTRAINT OF TRADE. 4. FORFEITURE RESTRAINT.
restraint ofmarriage. (16c) A condition (esp. in a gift or
bequest) that nullifies the grant to which it applies ifthe
grantee marries or remarries. -Restraints ofmarriage
are usu. void ifthey are general or unlimited in scope.
[Cases: Contracts <8=> 111.]
restraint of princes. Archaic. An embargo. -The
phrase still occaSionally appears in marine-insurance
contexts. -Also termed restraint ofprinces and rulers;
restraint ofprinces, rulers, and people. See EMBARGO.
restraint of trade. 1. A limitation on business dealings
or professional or gainful occupations. 2. Antitrust.
An agreement between two or more businesses or a
combination ofbusinesses intended to eliminate com
petition, create a monopoly, artificially raise prices, or
otherwise adversely affect the free market -Restraints
of trade are usu. illegal, but may be declared reason
able if they are in the best interests ofboth the parties
and the public. Often shortened to restraint. Also
termed conspiracy in restraint oftrade. See PER SE RULE;
RULE OF REASON. [Cases: Antitrust and Trade Regula
tion
horizontal restraint. A restraint of trade imposed by
agreement between competitors at the same level of
distribution. - The restraint is horizontal not because
it has horizontal effects, but because it is the product
ofa horizontal agreement. -Also termed horizontal
agreement.
unreasonable restraint oftrade. A restraint of trade
that produces a Significant anticompetitive effect and
thus violates antitrust law.
vertical restraint. A restraint of trade imposed by
agreement between firms at different levels ofdistri
bution (as between manufacturer and retailer). restraint on alienation. (l8c) 1. A restriction, usu. in
a deed of conveyance, on a grantee's ability to sell or
transfer real property; a provision that conveys an
interest and that, even after the interest has become
vested, prevents or discourages the owner from dispos
ing ofit at all or from disposing ofit in particular ways
or to particular persons. -Restraints on alienation
are generally unenforceable as against public policy
favoring the free alienability ofland. Also termed
unreasonable restraint on alienation. 2. A trust provi
sion that prohibits or penalizes alienation of the trust
corpus. [Cases: Perpetuities C~"6.]
restricted indorsement. See conditional indorsement
under INDORSEMENT.
restricted interpretation. See restrictive interpretation
under INTERPRETATION.
restricted security. See SECURITY.
restricted stock. See restricted security under
SECURITY.
restricted surplus. See SURPLUS.
restricted visitation. See supervised visitation under
VISITATION.
restriction. (ISc) 1. A limitation or qualification. 2. A
limitation (esp. in a deed) placed on the use or enjoy
ment of property. See restrictive covenant under
COVENANT (4). [Cases: Covenants <8=>49-52, 69.]
conservation restriction. See conservation easement
under EASEMENT.
3. Military law. A deprivation of liberty involving
moral and legal, rather than physical, restraint. - A
military restriction is imposed as punishment either
by a commanding officer's nonjudicial punishment
or by a summary, special, or general court-martial.
Restriction is a lesser restraint because it permits the
restricted person to perform full military duties. See
nonjudicial punishment under PUNISHMENT. [Cases:
Military Justice <8=>526, 1322.1.]
restriction in lieu ofarrest. A restriction in which a
person is ordered to stay within specific geographi
cal limits, such as a base or a ship, and is permitted to
perform full military duties. [Cases: Military Justice
(::";;>935.1.]
4. Patents. A patent examiner's ruling that a patent
application comprises two or more patentably distinct
or independent inventions; the requirement that the
applicant elect one invention to continue prosecuting
under the original application by abandoning some
of the original claims. -The applicant may defend
the claims by traversing the requirement, abandon
any nonelected invention, or continue prosecuting
any nonelected invention under a separate divisional
application. -Also termed requirement for restric
tion; restriction requirement; division. Cf. OBJECTION
(2); REJECTION (4). [Cases: Patents <8=> 120.]
restriction application. See divisional application under
PATENT APPLICATION.
restriction requirement. See RESTRICTION (4).
restrictive condition. See negative condition under CON
DITTON (2).
restrictive covenant. 1. See noncompetition covenant
under COVENANT (1). 2. See COVENANT (4).
restrictive covenant in equity. See restrictive covenant
under COVENANT (4).
restrictive indorsement. See INDORSEMENT.
restrictive interpretation. See INTERPRETATION.
restrictive principle of sovereign immunity. The
doctrine by which a foreign nation's immunity does
not apply to claims arising from the nation's private
or commercial acts, but protects the nation only from
claims arising from its public functions. See COM
MERCIAL-ACTIVITY EXCEPTION; JURE GESTTONIS; JURE
IMPERII. [Cases: International Law (;=>10 |
PTION; JURE GESTTONIS; JURE
IMPERII. [Cases: International Law (;=>10.33.]
"[Tlhe [Foreign Sovereignjlmmunities Act codified the
so-called 'restrictive' principle of sovereign immunity, as
recognized in international law. Under this doctrine, the
immunity of a foreign state in the courts of the United
States is 'restricted' to claims involving the foreign state's
public acts and does not extend to suits based on its com
mercial or private conduct." 14A Charles Alan Wright et
a!., Federal Practice and Procedure 3662, at 161-62 (3d
ed.1998).
restrictive title. See TITLE (3).
resulting power. See POWER (3).
resulting trust. See TRUST.
resulting use. See USE (4).
resume consideration. See take from the table under
TABLE.
resummons. (ISc) A second or renewed summons to a
party or witness already summoned. See SUMMONS.
resumption. 1. The taking back of property previously
given up or lost. 2. Hist. The retaking by the Crown
or other authority of lands or rights previously given
to another (as because of false suggestion or other
error).
res universitatis (rays yoo-na-var-sa-tay-tis), n. pl. [Latin]
Roman law. Things belonging to a community or cor
porate body and free to be used by all its members.
resurrender, n. Hist. The return ofa copyhold estate to
a mortgagor by the mortgagee after the debt has been
repaid. See SURRENDER OF COPYHOLD.
retail, n. lhe sale of goods or commodities to ultimate
consumers, as opposed to the sale for further distribu
tion or processing. retail, adj. Cf. WHOLESALE.
retail, vb.
retailer, n. A person or entity engaged in the business of
selling personal property to the public or to consum
ers, as opposed to selling to those who intend to resell
the items.
retail installment contract. See CONTRACT.
retail installment contract and security agreement. See
retail installment contract under CONTRACT.
retail installment sale. See INSTALLMENT SALE.
retail sales tax. See sales tax under TAX. retainage (ri-tayn-ij). (1901) A percentage of what a
landowner pays a contractor, withheld until the con
struction has been satisfactorily completed and all
mechanic's liens are released or have expired. -Also
termed retained fund. [Cases: Contracts (;=>214,
221(3).]
retained earnings. See EARNINGS.
retained fund. See RET AINAGE.
retained income trust. See grantor-retained income trust
under TRUST.
retainer, n. (I8c) 1. A client's authorization for a lawyer
to act in a case <the attorney needed an express retainer
before making a settlement offer>. [Cases: Attorney and
Client C='64.] 2. A fee that a client pays to a lawyer
simply to be available when the client needs legal help
during a specified period or on a specified matter.
[Cases: Attorney and Client 137.] 3. A lump-sum
fee paid by the client to engage a lawyer at the outset of
a matter. -Also termed engagement fee. 4. An advance
payment of fees for work that the lawyer will perform in
the future. Also termed retainingfee. Cf. ATTORNEY'S
FEES. [Cases: Attorney and Client (;=> 137.] retain,
vb.
"Over the years, attorneys have used the term 'retainer' in
so many conflicting senses that it should be banished from
the legal vocabulary. .. If some primordial urge drives you
to use the term 'retainer: at least explain what you mean
in terms that both you and the client will understand."
Mortimer D. Schwartz & Richard C. Wydick, Problems in
Legal Ethics 100, 101 (2d ed. 1988).
general retainer. (18c) A retainer for a specific length
of time rather than for a specific project. [Cases:
Attorney and Client (;=> 137.]
special retainer. (18c) A retainer for a specific case or
project. [Cases: Attorney and Client (;=> 137.]
retaining fee. See RETAINER (4).
retaining lien. See LIEN.
retaliatory discharge. See DISCHARGE (7).
retaliatory eviction. See EVICTION.
retaliatory law. (1820) A state law restraining another
state's businesses as by levying taxes in response
to similar restraints imposed by the second state on the
first state's businesses.
retaliatory tariff. See TARIFF (2).
retallia (ri-tal-ee-a). [Law Latin] Hist. The sale of goods
or commodities in small quantities; retail.
retenementum (ri-ten-a-men-tam). Hist. A withholding;
restraint or detainment.
retenta possessione (ri-ten-ta p<'l-zes[h]-ee-oh-nee).
[Latin] Hist. Possession being retained.
retention. Scots law. A possessor's right to keep a movable
until the possessor's claim against the movable or its
owner is satisfied; a lien.
general retention. Scots law. A possessor's right to
keep all property owned by a debtor as security for
the debt.
1431 retributivism
special retention. Scots law. A possessor's right to
keep property owned by another until reimbursed
for expenditures on the property for its repair or for
its care and maintenance.
retinue. A group of persons who are retained to follow
and attend to a sovereign, noble, or other distinguished
person.
retired stock. See treasury stock under STOCK.
retirement, n. (16c) 1. Termination ofone's own employ
ment or career, esp. upon reaching a certain age or for
health reasons; retirement may be voluntary or involun
tary. 2. Withdrawal from action or for privacy <Carol's
retirement to her house by the lake>. 3. Withdrawal
from circulation; payment of a debt <retirement of a
series of bonds>. See REDEMPTION. retire, vb.
compulsory retirement. Mandatory retirement based
on a person's age, esp. as specified in a union contract,
by corporate policy, or by statute.
retirement annuity. See ANNUITY.
Retirement Equity Act of 1984. A federal law that
requires private pension plans to comply with the
court-ordered division of a pension between spouses
and permits the plan administrator to pay all or part of
a worker's pensions and survivor benefits directly to a
former spouse ifthe plan has been served with a court
order that meets the federal requirements for a quali
fied domestic-relations order. 29 USCA 1056(d)(3).
See QUALIFIED DOMESTIC-RELATIONS ORDER. [Cases:
Labor and Employment C:"::>594.J
retirement-income insurance. See INSURANCE.
retirement plan. See EMPLOYEE BENEFIT PLAN.
retorna brevium (ri-tor-nd bree-vee-am). [Law Latin]
Hist. The return of a writ. This was the indorsement
on a writ by a sheriff or other officer, reporting on the
writ's execution.
retorno habendo. See DE RETORNO HABENDO.
retorsion (ri-tor-sh.:m). Int'llaw. An act oflawful retali
ation in kind for another nation's unfriendly or unfair
act. Examples of retorsion include suspending dip
lomatic relations, expelling foreign nationals, and
restricting travel rights. Also spelled retortion. Cf.
REPRISAL (2).
retraction, n. (14c) 1. The act of taking or drawing back
<retraction ofanticipatory repudiation before breach of
contract>. 2. The act ofrecanting; a statement in recall
tat ion <retraction of a defamatory remark>. [Cases:
Libel and Slander (;:::J66.j 3. Wills & estates. A with
drawal ofa renunciation <because ofher retraction, she
took property under her uncle's will>. See RENUNCIA
TION (3). 4. Copyright. The right ofauthors and artists
to renounce their creative works and to forbid their
sale or display . Retraction is one of the moral rights
ofartists recognized in civil-law countries and much of
Europe, but largely unavailable in the United States.
Also termed (in sense 4) withdrawal. -retract, vb.
retractus feudalis (ri-trak-tas fyoo-day-lis). (Law Latin
"a recall of the fee"] Scots law. A superior's right to pay a debt of a vassal's lands in exchange for the return of
the conveyance.
retraxit (ri-trak-sit). [Latin "he has withdrawn"] A plain
tiff's voluntary withdrawal ofa lawsuit in court so that
the plaintiff forever forfeits the right of action. In
modern practice, retraxit is called voluntary dismissal
with prejudice. A dismissal without prejudice does not
operate as a retraxit. See judgment of retraxit under
JUDGMENT.
retreat rule. (1935) Criminal law. The doctrine holding
that the victim of an assault has a duty to retreat instead
of resorting to deadly force in self-defense, unless (1) the
victim is at home or in his or her place ofbusiness (the
so-called castle doctrine), or (2) the assailant is a person
whom the victim is trying to arrest. A minority of
American jurisdictions have adopted this rule. Cf. NO
RETREAT RULE. [Cases: Homicide (;:::>798.]
"The rationale for the retreat rule is not difficult to ascer
tain, at least in part. It rests upon the view that human life,
even the life of an aggressor, is sufficiently important that
it should be preserved when to do so requires only the sac
rifice of the much less important interest in standing one's
ground." George E. Dix, "Justification: Self-defense," in 3
Encyclopedia of Crime and Justice 946. 948-49 (Sanford
H. Kadish ed., 1983).
retrial, n. (18c) A new trial ofan action that has already
been tried. See trial de novo under TRIAL. [Cases:
Federal Civil Procedure (;:::J2311; New Trial (;::;.-'0.5.]
retry, vb.
retribution, n. (14c) 1. Criminal law. Punishment
imposed as repayment or revenge for the offense com
mitted; requital. Cf. DETERRENCE; REHABILITATION (1).
[Cases: Sentencing and Punishment (;:::J44.J 2. Some
thing justly deserved; repayment; reward. retribu
tive, adj. -retribute, vb.
retributive danger. See DANGER.
retributive punishment. See PUNISHMENT.
retributivism (ri-trib-Yd-ta-viz-am). (1966) The legal
theory by which criminal punishment is justified, as
long as the offender is morally accountable, regardless
of whether deterrence or other good consequences
would result . According to retributivism, a criminal
is thought to have a debt to pay to society, which is
paid by punishment. The punishment is also sometimes
said to be society's act ofpaying back the criminal for
the wrong done. Opponents of retributivism some
times refer to it as vindictive theory." Cf. hedonistic
utilitarianism under UTILITARIANISM; UTILITARIAN
DETERRENCE THEORY. [Cases: Sentencing and Punish
ment (;:::J44.J
maximalist retributivism.The classical form ofretrib
utivism, espoused by scholars such as Immanuel Kant,
under which it is argued that society has a duty, not
just a right, to punish a criminal who is guilty and
culpable, that is, someone who has no justification
or excuse for the illegal act.
minimalist retributivism. The more contemporary
form of retributivism, which maintains that no
one should be punished in the absence of guilt and
retroactive 1432
culpability (that is, unless punishment is deserved),
and that a judge may absolve the offender from pun
ishment, wholly or partially, when doing so would
further societal goals such as rehabilitation or deter
rence.
retroactive, adj. (17c) (Ofa statute, ruling, etc.) extend
ing in scope or effect to matters that have occurred in
the past. Also termed retrospective. Cf. PROSPECTIVE
(1). [Cases: Administrative Law and Procedure C~:::>419;
Courts 100(1); Statutes C=>278.2.] retroactiv
ity, n.
"'Retroactivity' is a term often used by lawyers but rarely
defined. On analysis it soon becomes apparent, moreover,
that it is used to cover at least two distinct concepts. The
first, which may be called 'true retroactivity,' consists in
the application of a new rule of law to an act or transaction
which was completed before the rule was promulgated.
The second concept, which will be referred to as 'quasi
retroactivity,' occurs when a new rule of law is applied to
an act or transaction in the process of completion .... [T]
he foundation of these concepts is the distinction between
completed and pending transactions ...." T.C. Hartley, The
Foundations ofEuropean Community Law 129 (1981).
retroactive law. (18c) A legislative act that looks backward
or contemplates the past, affecting acts or facts that
existed before the act came into effect. - A retroactive
law is not unconstitutional unless it (1) is in the nature
ofan ex post facto law or a bill ofattainder, (2) impairs
the obligation ofcontracts, (3) divests vested rights, or
(4) is constitutionally forbidden. Also termed retro
spective law; retroactive statute; retrospective statute.
[ |
(4) is constitutionally forbidden. Also termed retro
spective law; retroactive statute; retrospective statute.
[Cases: Statutes C=>278.3, 278.9.]
retrocession. (17c) l. The act of ceding something back
(such as a territory or jurisdiction). [Cases: United
States C=>3.] 2. The return ofa title or other interest in
property to its former or rightful owner. 3. The process
oftransferring all or part ofa reinsured risk to another
reinsurance company; reinsurance ofreinsurance.
Subsequent retrocessions are referred to as first retro
cession, second retrocession, and so on. 4. The amount
of risk that is so transferred.
retrocessionaire. Reinsurance. A reinsurer ofa reinsurer.
See RETROCESSION.
retrocessional agreement. An agreement proViding for
reinsurance ofreinsurance.
retrospectant evidence. See EVIDENCE.
retrospective, adj. See RETROACTIVE.
retrospective law. See RETROACTIVE LAW.
retrospective statute. See RETROACTIVE LAW.
return, n. (ISc) 1. A court officer's bringing back of
an instrument to the court that issued it; RETURN OF
WRIT <a sheriff's return ofcitation>. [Cases: Execution
C=>330-347.] 2. A court officer's indorsement on an
instrument brought back to the court, reporting what
the officer did or found <a return of nulla bona>. See
FALSE RETURN (1). 3. TAX RETURN <file your return
before April 15>. 4. (usu. pl.) An official report ofvoting
results <election returns>. 5. Yield or profit <return on
an investment>. See RATE OF RETURN. return, vb. capital return. Tax. Revenue that represents the repay
ment of cost or capital and thus is not taxable as
income. -Also termed return ofcapital.
fair return on investment. The usual or reasonable
profit in a business, esp. a public utility.
net return. 1he profit on an investment after deducting
all investment expenses.
return ofcapital. See capital return.
return date. See return day under DAY.
return day. See DAY.
returnee. A refugee whom authorities have returned to
the country oforigin; one who has fled from the home
country and then been sent back. [Cases: Aliens, Immi
gration, and Citizenship (;=644.]
returning board. An official body or commission that
canvasses election returns.
return ofprocess. See PROOF OF SERVICE.
return ofservice. See PROOF OF SERVICE.
return ofwrit. (18c) The sheriff's bringing back a writ
to the court that issued it, with a short written account
(usu. on the back) ofthe manner in which the writ was
executed. Often shortened to return. See RETURN
(1). [Cases: Execution C=>334; Sheriffs and Constables
C=>87.]
reunification. The return of a child who has been
removed from his or her parents because ofabuse or
neglect by one or both ofthem. When a child has been
removed from the home because of abuse or neglect,
the state's primary goal is family reunification as long
as this is in the best interests of the child. The state is
required, in most instances, to provide the parent or
parents with services that will enable them to proVide
adequately for their child upon his or her return. After
the enactment of the Adoption and Safe Families Act
in 1997, states became more concerned with limiting
the time that children are in foster care and less con
cerned with lengthy reunification plans. -Also termed
family reunification. See ADOPTION AND SAFE FAMILIES
ACT; PERMANENCY PLAN; ADOPTION ASSISTANCE A:'<lD
CHILD WELFARE ACT. [Cases: Infants 231.]
reunify, vb.
re-up, vb. 1. To reenlist in one of the armed forces <the
soldier re-upped the day after being discharged>.
[Cases: Armed Services (r'18.5.] 2. To sign an exten
sion to a contract, esp. an employment agreement <the
star athlete re-upped in a three-year deal worth $12
million>.
reus (ree-ds). [Latin] Roman & civil law. 1. A defendant.
Cf. ACTOR (3). 2. A party to a suit, whether plaintiffor
defendant. 3. A party to a contract or transaction, esp.
one assuming a debt or obligation. 4. Roman law. In
criminal law, an accused or convicted person. PI. rei.
Fem, rea, pI. reae.
reus promittendi (ree-ds proh-mi-ten-dI). [Latin "party
promising"] Roman law. The answerer in a Roman-law
1433 reverse doctrine of equivalents
stipulation. Also termed promissor. See STIPULA
TION (3).
reus stipulandi (ree-;)s stip-Yd-lan-dI). [Latin "party
stipulating"] Roman law. The questioner in a Roman
law stipulation. -Also termed stipulator. See STIPU
LATION (3).
revalidation. See REPUBLICATION (2).
revaluation, n. An increase in the value ofone currency
in relation to another currency. Cf. DEVALUATION.
revalue, vb.
revaluation surplus. See SURPLUS.
rev'd. abbr. Reversed.
reve (reev). Hist. The bailiff of a franchise or manor. See
REEVE.
revendication, n. 1. The recovery or claiming back of
something by a formal claim or demand. 2. Civil law.
An action to recover real rights in and possession of
property that is wrongfully held by another. This
is analogous to the common-law replevin. [Cases:
Replevin (,-'-:::c 1.] revendicate, vb.
revendicatory action. See petitory action under ACTION
(4).
revenue. (I5c) Gross income or receipts.
general revenue. The income stream from which a state
or municipality pays its obligations unless a law calls
for payment from a special fund. See general fund
under FUND (1). [Cases: Municipal Corporations~'
886; States ~126.]
land revenue. Revenue derived from lands owned by
the Crown in Great Britain . Since, over the years,
crown lands have been largely granted to subjects,
they are now transferred within very narrow limits.
See Crown land under LAND.
marginal revenue. The amount ofrevenue earned from
the sale of one additional unit.
public revenue. A government's income, usu. derived
from taxes, levies, and fees.
revenue agent's report. A report indicating any adjust
ments made to a tax return as a result ofan IRS audit.
After an audit, this report is mailed to the taxpayer
along with a thirty-day letter. Abbr. RAR. See
THIRTY-DAY LETTER.
revenue bill. See BILL (3).
revenue bond. See BOND (3).
Revenue Procedure. An official statement by the IRS
regarding the administration and procedures of the
tax laws. -Abbr. Rev. Proc. [Cases: Internal Revenue
~3048.J
Revenue Ruling. An official interpretation by the IRS
of the proper application of the tax law to a specific
transaction . Revenue Rulings carry some authorita
tive weight and may be relied on by the taxpayer who
requested the ruling. Abbr. Rev. Rul. [Cases: Internal
Revenue C.:::~'3043, 3049.] revenue stamp. (1862) A stamp used as evidence that a
tax has been paid. [Cases: Internal Revenue (.:::;)4406;
Taxation ~3679.]
revenue tariff. See TARIFF (2).
re, verbis, literis, consensu (ree, vilr-bis, lit-;)r-is, k<ln
sen-s[y]oo). [Latin] Roman law. By the performance
(namely, handing over), by words, by writing, by
consent. The phrase appeared in reference to the four
classes of Roman contract.
reversal, n. (15c) 1. An appellate court's overturning
of a lower court's decision. [Cases: Appeal and Error
C::> 1156-1180; Criminal Law 1185-1190; Federal
Courts (.::::'932.J 2. Securities. A change in a security's
near-term market-price trend.
reverse, vb. To overturn (a judgment) on appeal. Some
times, the verb is used without a direct object <We
reverse>. The equivalent expression in British English
is to allow the appeal. [Cases: Appeal and Error ~
1156-1180; Criminal Law (::::;,1187; Federal Courts
932.]
reverse annuity mortgage. See MORTGAGE.
reverse bear hug. See BEAR HUG.
reverse bonus. See reverse contingentfee under CONTIN
GENT FEE.
reverse condemnation. See inverse condemnation under
CONDEMNATION.
reverse confusion. See CONFUSION.
reverse-confusion doctrine. Intellectual property. 1he
rule that it is unfair competition if the defendant's use
of a title that is confUSingly similar to the one used by
the plaintiff leads the public to believe that the plain
tiff's work is the same as the defendant's, or that it is
derived from or associated in some manner with the
defendant. Under the conventional passing-off form
of unfair competition, similarity of titles leads the
public to believe that the defendant's work is the same
as the plaintiff's work, or is in some manner derived
from the plaintiff. But in reverse confusion, the unfair
competition results from the confusion created about
the origin ofthe plaintiff's work. [Cases: Antitrust and
Trade Regulation (.::~'38; Trademarks ~1089.]
reverse consensus. Intellectual property. In a dispute-set
tlement procedure under TRIPs, an agreement between
the parties that a dispute should not be submitted to
a World Trade Organization panel for adjudication.
Before TRIPs, any party could delay formation of
a WTO panel or adoption of its report by withhold
ing consensus. Under TRIPs, each process is automatic
unless all parties agree not to go forward.
reverse contingent fee. See CONTINGENT FEE.
reverse discovery. See reverse Jencks material under
JENCKS MATERIAL.
reverse discrimination. See DISCRIMINATION.
reverse doctrine of equivalents. See DOCTRINE OF
EQUIVALENTS.
1434 reverse-engineering
reverse-engineering. Intellectual property. The process
of discovering how an invention works by inspect
ing and studying it, esp. by taking it apart in order to
learn how it works and how to copy it and improve it.
Reverse engineering is a proper means of discovering
trade secrets, according to the Uniform Trade Secrets
Act, and is a defense against a suit for misappropriation
oftrade secrets. But it is not a defense in a suit for patent
infringement. -reverse-engineer, vb.
reverse Erie doctrine. I. 'Ihe rule that a state court must
apply federal law when state law is preempted by federal
law or federal law prevails by an Erie-like balancing of
the facts in situations not already regulated by Congress
or the Constitution. 2. Maritime law. The principle that a
state court hearing an admiralty or maritime case must
apply federal admiralty law even ifthat law conflicts with
the law of the state. Often shortened to reverse Erie.
Also termed converse-Erie doctrine; inverse-Erie doctrine.
Cf. ERIE DOCTRINE. [Cases: Admiralty C-::'1.20.]
reverse FOIA suit (foY-J). A lawsuit by the owner of a
trade secret or other information exempt from disclo
sure under a freedom-of-information act to prevent a
governmental entity from making that information
available to the public. See FREEDOM OF INFORMATION
ACT, [Cases: Records 63.]
reverse Jencks. See reverse Jencks material under JENCKS
MATERIAL.
reverse mortgage. See reverse annuity mortgage under
MORTGAGE.
reverse palming off. See PASSING OFF.
reverse passing off. See PASSING OFF.
reverse spot zoning. See ZONING.
reverse stock split. See STOCK SPLIT.
reverse subsidiary merger. See reverse triangular merger
under MERGER.
reverse transfer statute. See TRANSFER STATUTE.
reverse triangular merger. See MERGER.
reversible error. See ERROR (2).
reversio (ri-v;Jr-shee-oh). [Law Latin] Hist. The returning
ofland to the grantor.
reversion, n. (I5c) 1. The interest that is left after sub
tracting what the transferor has parted with from what
the transferor originally had; specif., a future interest
in land arising by operation oflaw whenever an estate
owner grants to another a particular estate, such as a
life estate or a term of years, but does not dispose ofthe
entire interest . A reversion occurs automatically upon
termination of the prior estate, as when a life tenant
dies. Also termed reversionary estate; estate in rever
sion; equitable reversion. [Cases: Reversions 2.
Loosely, REMAI:-<DER. Cf. POSSIBILITY OF REVERTER;
REMAINDER. reversionary, adj. -revert, vb.
reversionary estate. See REVERSION.
reversionary interest. See INTEREST (2).
reversionary lease. See LEASE. reversioner. (17c) 1. One who possesses the reversion
to an estate; the grantor or heir in reversion. [Cases:
Reversions 0~'1.] 2. Broadly, one who has a lawful
interest in land but not the present possession of it.
reversor. Scots law. A debtor who secures a debt bv
pledging property to a creditor and retaining a right
of reversion.
reverter. See POSSIBILITY OF REVERTER.
reverter guarantee. Real estate. A mortgage clause pro
tecting the mortgagee against a loss occasioned by the |
reverter guarantee. Real estate. A mortgage clause pro
tecting the mortgagee against a loss occasioned by the
occurrence of a terminating event under a possibility of
reverter. See POSSIBILITY OF REVERTER. [Cases: Mort
gages 0;)211.]
revest, vb. (16c) To vest again or anew <revesting oftitle
in the former owner>.
rev'g. abbr. Reversing.
review, n. (15c) 1. Consideration, inspection, or reex
amination of a subject or thing. 2. Plenary power to
direct and instruct an agent or subordinate, including
the right to remand, modify, or vacate any action by
the agent or subordinate, or to act directly in place of
the agent or subordinate <Subject to the Assembly's
review, the Council enjoys the same powers of review
and delegation as the Assembly.>. review, vb.
administrative review. (1928) 1. Judicial review of an
administrative proceeding. [Cases: Administrative
Law and Procedure 0'='651.] 2. Review ofan admin
istrative proceeding within the agency itself. [Cases:
Administrative Law and Procedure ~513.]
appellate review. (1837) Examination of a lower court's
decision by a higher court, which can affirm, reverse,
modify, or vacate the decision. [Cases: Appeal and
Error ~836;Federal Courts ~751.]
discretionary review. (1914) The form of appellate
review that is not a matter of right but that occurs
only with the appellate court's permission. See CER
TIORARI. [Cases: Appeal and Error Federal
Courts (>660.1.]
judicial review. See JUDICIAL REVIEW.
reviewable issue. See appealable decision under
DECISION.
review hearing. See HEARING.
revised statutes. See STATUTE.
revision, n. (17c) 1. A reexamination or careful review
for correction or improvement. 2. Parliamentary law.
A general and thorough rewriting of a governing
document, in which the entire document is open to
amendment <bylaws revision>. 3. Military law. The
reconvening of a general or special court-martial to
revise its action or to correct the record because of an
improper or inconsistent action concerning the findings
or the sentence . A revision can occur only if it will
not materially prejudice the accused. [Cases: Military
Justice ~1397.] 4. An altered version ofa work.
revival, n. (17c) 1. Restoration to current use or operation;
esp., the act ofrestoring the validity or legal force ofan
1435
expired contract, an abandoned patent, or a dormant
judgment. Also termed (for a dormant judgment)
revival ofjudgment. Cf. RENEWAL (2). [Cases: Federal
Civil Procedure C=>2399; Judgment C,::>857-872.j 2.
Wills & estates. The reestablishment of the validity of
a revoked will by revoking the will that invalidated the
original will or in some other way manifesting the tes
tator's intent to be bound by the earlier will. Cf. REPUB
LICATION (2). [Cases: Wills 196-202.] 3. Patents.
Renewal ofa patent prosecution that has been deemed
abandoned because the applicant did not respond to an
office action within the statutory period . The appli
cant can petition for revival on the basis of unavoidable
or unintentional delay. 37 CFR 1.137. [Cases: Patents
C=> 107.] revive, vb.
revival statute. See STATUTE.
revivor. (i8c) A proceeding to revive an action ended
because of either the death ofone ofthe parties or some
other circumstance. [Cases: Abatement and Revival
Equity <';:-"303-309.]
Revlon duty. Delaware law. The obligation ofa company's
board of directors, upon deciding to sell the company
or when the sale ofthe company becomes inevitable, to
act reasonably in seeking out and accepting a transac
tion that offers the best value to shareholders . This
duty was first applied in Revlon v. MacAndrews &
Forbes Holdings Inc., 506 A.2d 173, 181-82 (Del. 1986).
[Cases: Corporations (;:='310(1), 584.]
revocable (rev-<l-b-b<ll), adj. (lSc) Capable of being
canceled or withdrawn <a revocable transfer>. [Cases:
Licenses (~:::) 58.]
revocable guaranty. See GUARANTY.
revocable letter ofcredit. See LETTER OF CREDIT.
revocable trust. See TRUST.
revocation (rev-a-kay-sh<ln), n. (15c) 1. An annulment,
cancellation, or reversal, usu. of an act or power. 2.
Contracts. Withdrawal of an offer by the offeror. Cf.
REPUDIATION (2); RESCISSION; REJECTION (1). [Cases:
Contracts 19; Sales C::22(2), 23(2).] 3. Wills &
estates. Invalidation of a will by the testator, either by
destroying the will or by executing a new one . A will,
or parts of a will, may be revoked by operation of law.
For example, most states have a statute providing for
the revocation, upon divorce, ofall provisions relating
to the testator's former spouse. [Cases: Wills C=> 167
195.] -revoke, vb.
revocation hearing. See HEARING.
revocatory action (rev-a-k<l-tor-ee or ri-vok-<l-tor-ee).
Civil law. An action brought by a creditor to annul a
contract that has been entered into by the debtor and
that will increase the debtor's insolvency. La. Civ. Code
art. 2036. [Cases: Fraudulent Conveyances
328.]
revocatur (ree-voh-kay-tar). [Latin] Hist. It is recalled.
In former English practice, this was used as a notation
on a judgment that was set aside because of a factual Rhodianlaw
error (as opposed to being reversed because oflegal
error).
revolution, n. An overthrow of a government, usu.
resulting in fundamental political change; a success
ful rebellion. revolutionary, adj. & n. -revolt, vb.
revolver loan. See LOAN.
revolving charge account. See revolVing credit under
CREDIT (4).
revolving credit. See CREDIT (4).
revolving fund. See FUND (1).
revolving letter ofcredit. See LETTER OF CREDIT.
revolving loan. See LOAN.
revolving performance bond. See PERFORMANCE BOND.
Rev. Proc. abbr. REVENUE PROCEDURE.
Rev. RuI. abbr. REVENUE RULING.
Rev. Stat. See revised statutes under STATUTE.
reward, n. 1. Something of value, usu. money, given in
return for some service or achievement, such as recov
ering property or providing information that leads
to the capture of a criminal. Cf. BOUNTY (1).[Cases:
Rewards <';:-)0.5.] 2. SALVAGE (3). reward, vb.
rewritten specification. See substitute specification
under SPECIFICATION (3).
rex (reks). (usu. cap.) 1. A king. 2. lhe official title of a
king. 3. The prosecution side (as representatives of the
king) in criminal proceedings in a monarchy. -Abbr.
R. Cf. REGINA.
rezone, vb. (1951) To change the zoning boundaries or
restrictions of(an area) <rezone the neighborhood>. See
ZONING. [Cases: Zoning and Planning (;c:;,> 151-199.]
RFA. abbr. REQUEST FOR ADMISSION.
RFI. abbr. REQUEST FOR INSTRUCTIONS.
RFP. abbr. 1. REQUEST FOR PRODUCTION. 2. See REQUEST
FOR PROPOSAL.
r.g. abbr. REGULA GENERALIS.
rhadamanthine (rad-<l-man-thin), adj. (often cap.)
(1840) (Of a judge) rigorous and inflexible <the judge's
rhadamanthine interpretation of procedural require
ments makes it essential to study the local rules before
appearing in court>.
Rhodian law (roh-dee-<ln). As legend would have it, the
earliest known system or code of maritime law, sup
posedly dating from 900 B.C. and adopted intact by
the Romans . Rhodian law was purportedly devel
oped by the people ofthe island Rhodes, located in the
Aegean Sea and now belonging to Greece. 'The ancient
inhabitants of Rhodes are said to have controlled the
seas because oftheir commercial prosperity and naval
superiority. Despite the uncertainties about its history,
Rhodian law has often been cited as a source of admi
ralty and maritime law.
"A strong tradition says that a maritime code was promul
gated by the Island of Rhodes, in the Eastern Mediterra'
nean, at the height of its power; the ridiculously early date
of gOO S.C has even been assigned to this suppositious
RHS 1436
code ~a date accepted uncritically by some legal scholars. I right, n. (bef. 12c) 1. That which is proper under law,
But even the existence of such a code has been pretty well
cast in doubt, and we know next to nothing of its contents,
if it existed. It is interesting to note, however, that the root
principle of the highly distinctive maritimelaw system of
general average ... is clearly stated in Justinian's Digest,
and that the Rhodian law is invoked as authority." Grant
Gilmore & Charles l. BlackJr., The Law ofAdmiralty 1-2,
at 3~4 (2d ed. 1975).
RHS. abbr. RURAL HOUSING SERVICE.
ribbon-matching rule. See MIRROR-IMAGE RULE.
Richard Roe. A fictitious name for a male party to a legal
proceeding, used because the party's true identity is
unknown or because his real name is being withheld;
esp., the second of two such parties. Cf. JOHN DOE.
[Cases: Federal Civil Procedure 101; Parties
67,73.]
RICO (ree-koh). abbr. (1972) RACKETEER INFLUENCED
AND CORRUPT ORGANIZATIONS ACT.
RICO person. Under the Racketeer Influenced and
Corrupt Organizations Act, any individual or entity
capable of holding a legal or beneficial interest in
property and posing a continuous threat of engaging
in the acts of racketeering. [Cases: Racketeer Influenced
and Corrupt Organizations (;:=>64.J
rider. An attachment to some document, such as a leg
islative bill or an insurance policy, that amends or sup
plements the document. A rider to a legislative bill
often addresses subject matter unrelated to the main
purpose ofthe bill. lCases: Insurance (;::;:;; 1845(1).]
rien culp (ryan kalp). [Law French "not guilty"] Hist. A
plea of not guilty.
rien dit (ryan dee). [Law French "says nothing"] Hist. A
plea of nihil dicit. See NIHIL DICIT.
den luy doit (ryan lwee dwah). [Law French "owes him
nothing"] Hist. A plea of nil debet. See NIL DEBET.
riens en arriere (ryan aw-nah-ree-air). [Law French
"nothing in arrear"] Hist. A plea in a debt action for
arrearages ofaccount.
riens passa per Ie fait (ryan pah-sah pair 1;) fay). [Law
French "nothing passed by the deed "] Hist. A plea by
which a party seeks to avoid the operation ofa deed that
has been enrolled or acknowledged in court.
riens per descent (ryan pair day-sawn). [Law French
"nothing by descent"] Hist. The plea of an heir who is
sued for the ancestor's debt and who received no land
or assets from the ancestor.
rier county. See RERE-COUNTY.
RIF. abbr. Reduction in force. See LAYOFF.
rif, vb. Slang. To layoff (a worker). The word derives
from the acronym for reduction in force.
rigging the market. The practice ofartificially inflating
stock prices, by a series ofbids, so that the demand for
those stocks appears to be high and investors will there
fore be enticed into buying the stocks. See MANIPULA
TION. [Cases: Securities Regulation (;::;:;;60.25.] morality, or ethics <know right from wrong>. 2. Some
thing that is due to a person by just claim, legal guar
antee, or moral principle <the right ofliberty>. 3. A
power, privilege, or immunity secured to a person by
law <the right to dispose of one's estate>. 4. A legally
enforceable claim that another will do or will not do a
given act; a recognized and protected interest the viola
tion ofwhich is a wrong <a breach ofduty that infringes
one's right>. 5. (often pl.) The interest, claim, or own
ership that one has in tangible or intangible property
<a debtor's rights in collateral> <publishing rights>.
6. The privilege of corporate shareholders to purchase
newly issued securities in amounts proportionate to
their holdings. 7. The negotiable certificate granting
such a privilege to a corporate shareholder.
"Right is a correlative to duty; where there is no duty there
can be no right. But the converse is not necessarily true.
There may be duties without rights. In order for a duty to
create a right, it must be a duty to act or forbear. Thus,
|
be duties without rights. In order for a duty to
create a right, it must be a duty to act or forbear. Thus,
among those duties which have rights corresponding to
them do not come the duties, if such there be, which call
for an inward state of mind, as distinguished from external
acts or forbearances. It is only to acts and forbearances that
others have a right. It may be our duty to love our neighbor,
but he has no right to our love." John Chipman Gray, The
Nature and Sources of the Law 8~9 (2d ed. 1921).
"'[T]he word 'right' is one of the most deceptive of pitfalls;
it is so easy to slip from a qualified meaning in the premise
to an unqualified one in the conclusion. Most rights are
qualified." American Bank & Trust Co. v. Federal Reserve
Bank ofAtlanta, 256 U.S. 350, 358, 41 S.Ct. 499, 500 (1921)
(Holmes,J.).
''[In Hohfeldian terminology.] A is said to have a r/ghtthat B
shall do an act when, if B does not do the act, A can initiate
legal proceedings that will result in coercing B. In such a
situation B is said to have a duty to do the act. Right and
duty are therefore correlatives, since in this sense there
can never be a duty without a right." E. Allen Farnsworth,
ContrClcts 3.4, at 114. n.3 (3d ed. 1999).
absolute right. 1. A right that belongs to every human
being, such as the right ofpersonal liberty; a natural
right. 2. An unqualified right; speci., a right that
cannot be denied or curtailed except under specific
conditions <freedom ofthought is an absolute right>.
For example, a plaintiffhas an absolute right to vol
untarily nonsuit a case before it is finally submitted;
after final submission, the court has discretion to
grant or deny a voluntary nonsuit. Cf. relative right.
accessory right. A supplementary right that has been
added to the main right that is vested in the same
owner. For example, the right in a security is acces
sory to the right that is secured; a servitude is acces
sory to the ownership of the land for whose benefit
the servitude exists. Cf. principal right.
accrued right. A matured right; a right that is ripe for
enforcement (as through litigation).
acquired right. A right that a person does not naturally
enjoy, but that is instead procured, such as the right
to own property.
civil right. See CIVIL RIGHT.
1437 right
conditional right. A right that depends on an uncer
tain event; a right that mayor may not exist. For
example, parents have the conditional right to punish
their child, the condition being that the punishment
must be reasonable.
conjugal rights. See CONJUGAL RIGHTS.
equitable right. A right cognizable within a court of
equity. Ifa legal right and an equitable right conflict,
the legal right ordinarily prevails over and destroys
the equitable right even if the legal right arose after
the equitable right. Breaches of equitable rights are
remedied by means other than monetary damages,
such as an injunction or specific performance. With
the merger oflaw and equity in federal and most state
courts, the procedural differences between legal and
equitable rights have been largely abolished. Cf.legal
right (1), (2). [Cases: Equity C:::::>3.]
expectant right. A right that is contingent on the occur
rence of some future event; a contingent right.
fundamental right. See FUNDAMENTAL RIGHT.
imperfect right. A right that is recognized by the law
but is not enforceable . Examples include time
barred claims and claims exceeding the local limits
of a court's jurisdiction.
"[Tlhere are certain rights, sometimes called imperfect
rights, which the law recognizes but will not enforce
directly. Thus a statute barred debt cannot be recovered in
a court of law, but for certain purposes the existence of the
debt has legal significance. If the debtor pays the money,
he cannot later sue to recover it as money paid without
consideration; and the imperfect right has the faculty of
becoming perfect if the debtor makes an acknowledgment
of the debt from which there can be inferred a promise to
pay." George Whitecross Paton, A Textbook ofJurisprudence
286 (G.W. Paton & David P. Derham eds., 4th ed. 1972).
imprescriptible right. A right that cannot be lost to
prescription.
inalienable right. A right that cannot be transferred or
surrendered; esp., a natural right such as the right to
own property. -Also termed inherent right.
incorporeal right. A right to intangible, rather than
tangible, property . A right to a legal action (a chose
in action) is an incorporeal right. See chose in action
under CHOSE.
inherent right. See inalienable right.
legal right. 1. A right created or recognized by law.
The breach of a legal right is usu. remediable by
monetary damages. 2. A right historically recog
nized by common-law courts. Cf. equitable right. 3.
The capacity of asserting a legally recognized claim
against one with a correlative duty to act.
natural right. A right that is conceived as part of
natural law and that is therefore thought to exist
independently of rights created by government or
society, such as the right to life, liberty, and property.
See NATURAL LAW.
negative right. A right entitling a person to have
another refrain from doing an act that might harm
the person entitled. Cf. positive right. patent right. A right secured by a patent. [Cases:
Patents C:::::> l.}
perfect right. A right that is recognized by the law and
is fully enforceable.
peripheral right. A right that surrounds or springs
from another right.
personal right. 1. A right that forms part of a person's
legal status or personal condition, as opposed to the
person's estate. 2. See right in personam.
political right. 1he right to participate in the establish
ment or administration of government, such as the
right to vote or the right to hold public office. -Also
termed political liberty. [Cases: Constitutional Law
1460-1482; Elections 1; Officers and Public
Employees C=.) 18.]
positive right. A right entitling a person to have another
do some act for the benefit ofthe person entitled. Cf.
negative right.
precarious right. A right enjoyed at the pleasure of
another; a right that can be revoked at any time.
primary right. A right prescribed by the substantive
law, such as a right not to be defamed or assaulted .
Ihe enforcement of a primary right is termed specific
enforcement.
principal right. A right to which has been added a
supplementary right in the same owner. Cf. acces
sory right.
private right. A personal right, as opposed to a right of
the public or the state. Cf. public right.
procedural right. (1911) A right that derives from legal
or administrative procedure; a right that helps in the
protection or enforcement of a substantive right. Cf.
substantive right.
property right. (1853) A right to specific property,
whether tangible or intangible. [Cases: Constitutional
Law C:::::>3874.]
proprietary right. A right that is part of a person's
estate, assets, or property, as opposed to a right arising
from the person's legal status.
public right. A right belonging to all citizens and usu.
vested in and exercised by a public office or political
entity. Cf. private right.
real right. 1. Civil law. A right that is connected with
a thing rather than a person . Real rights include
ownership, use, habitation, usufruct, predial servi
tude, pledge, and real mortgage.
''The term 'real rights' Uura in re) is an abstraction unknown
to claSSical Roman law. The classical jurists were preoc
cupied with the availability of remedies rather than the
existence of substantive rights, and did not have a generic
term to include all 'rights' which ciVilian scholars of follow
ing generations classified as 'real.' The expression ('real
rights') was first coined by medieval writers elaborating on
the Digest in an effort to explain ancient procedural forms
of action in terms of substantive rights." A.N. Yiannopo
ulos, Real Rights in Louisiana and Comparative Law, 23 La.
L. Rev. 161, 163 (1963).
2. JUS IN RE. 3. See right in rem.
1438 right against self-incrimination
relative right. A right that arises from and depends
on someone else's right, as distinguished from an
absolute right. Cf. absolute right.
remedial right. The secondary right to have a remedy
that arises when a primary right is broken. See sec
ondary right.
restitutory right. A right to restitution.
right in personam (in p:Jr-soh-n:Jm). An interest
protected solely against specific individuals.
Also termed personal right; jus in personam. See IN
PERSONAM.
right in rem (in rem). A right, often negative, exercis
able against the world at large. -Also termed real
right; jus in rem. See IN REM.
"A right in rem need not relate to a tangible res. Thus a
right that one's reputation should not be unjustifiably
attacked is today described as a right in rem, since it is a
right that avails against persons generally. This shows how
far the conception has developed from the Roman notion
of actio in rem, for one who sues to protect his reputation
is not asking for judgment for a specific res. It should
also be noticed that on breach of a right in rem, a right in
personam arises against the aggressor." George Whitecross
Paton, A Textbook ofJurisprudence 300 (G.w. Paton & David
P. Derham eds., 4th ed. 1972).
secondary right. A right prescribed by procedural
law to enforce a substantive right, such as the right
to damages for a breach ofcontract. -The enforce
ment ofa secondary right is variously termed second
ary enforcement, remedial enforcement, or sanctional
enforcement. Also termed remedial right; sanction
ing right.
substantial right. (18c) An essential right that poten
tially affects the outcome of a lawsuit and is capable
oflegal enforcement and protection, as distinguished
from a mere technical or procedural right.
substantive right (s:lb-st:Jn-tiv). (I8c) A right that can
be protected or enforced by law; a right of substance
rather than form. Cf. procedural right.
vested right. A right that so completely and definitely
belongs to a person that it cannot be impaired or
taken away without the person's consent. [Cases:
Constitutional Law (::::::>2630-2655.]
right against self-incrimination. (1911) A criminal
defendant's or a witness's constitutional right under
the Fifth Amendment, but waivable under certain con
ditions -guaranteeing that a person cannot be com
pelled by the government to testify if the testimony
might result in the person's being criminally pros
ecuted. _ Although this right is most often asserted
during a criminal prosecution, a person can also
"plead the Fifth" in a civil, legislative, administrative,
or grand-jury proceeding. -Also termed privilege
against self-incrimination; right to remain silent. See
SELF-INCRIMINATION. [Cases: Criminal Law (::::::>393;
Witnesses (::::::>297.1
"The right against selfincrimination, protected by the
Fifth Amendment, is central to the accusatorial system of
criminal justice: together with the presumption of inno
cence, the right against self incrimination ensures that the state must bear the burden of prosecution .... The right
against self-incrimination is personal. It may be claimed
only by the person who himself might be at risk for testify
ing. It may not be claimed on behalf of another ...." Jethro
K. Lieberman, The Evolving Constitution 481-82 (1992).
right-and-wrong test. See MCNAGHTEN RULES.
rightful, adj. 1. (Ofan action) equitable; fair <a rightful
dispossession>. 2. (Of a person) legitimately entitled to
a position <a rightful heir>. 3. (Of an office or piece of
property) that one is entitled to <her rightful inheri
tance>.
right heir. See HEIR.
right in personam. See RIGHT.
right in re aliena. See JUS IN RE ALIENA.
right in rem. See RIGHT.
right in re propria. See JUS IN RE PROPRIA.
right not to be qnestioned. See privilege against self
incrimination under PRIVILEGE (3).
right of action. 1. The right to bring a specific case to
court. [Cases: Action C::' 1, 2.] 2. A right that can be
enforced by legal action; a chose in action. Cf. CAUSE OF
ACTION. [Cases; Action (::::::> 1,2; Property ('~5.5.]
right ofangary. See ANGARY.
right of approach. Int'llaw. The right of a warship on
the high seas to draw near another vessel to determine
its nationality. [Cases: War and National Emergency
(::::::>20.]
right of assembly. The constitutional right guaran
teed by the First Amendment ofthe people to gather
peacefully for public expression ofreligion, politics, or
grievances. -Also termed freedom ofassembly; right
to assemble. Cf. FREEDOM OF ASSOCIATION; unlawful
assembly under ASSEMBLY. [Cases: Constitutional Law
(;::>1430,1431.]
right of audience. A right to appear and be heard in a
given court. _ The term is chiefly used in England to
denote the right of a certain type oflawyer to appear
in a certain type of court.
right ofcommon. See PROFIT APRENDRE.
right-of-conscience law. A statute allowing healthcare
profession |
ofcommon. See PROFIT APRENDRE.
right-of-conscience law. A statute allowing healthcare
professionals to refuse to provide services that they find
morally objectionable.
right ofcontribution. See CONTRIBUTION (1).
right of discussion. Scots law. See BENEFIT OF DISCUS
SION.
right ofdissent and appraisal. See APPRAISAL REMEDY.
right ofdivision. Scots law. See BENEFIT OF DIVISION.
right of election. Wills & estates. A surviving spouse's
statutory right to choose either the gifts given by the
deceased spouse in the will or a forced share or a share
of the estate as defined in the probate statute. Also
termed widow's election. See ELECTION (2); augmented
estate under ESTATE (3). [Cases: Descent and Distribu
tion Wills (::::::>778-818.]
1439
right ofentry. 1. The right of taking or resuming pos
session of land or other real property in a peaceable
manner. 2. POWER OF TERMINATION. 3. The right to
go into another's real property for a special purpose
without committing trespass. -An example is a land
lord's right to enter a tenant's property to make repairs.
[Cases: Trespass ~~24.J 4. The right of an alien to go
into a jurisdiction for a special purpose. -An example
is an exchange student's right to enter another country
to attend college. [Cases: Aliens, Immigration, and Cit
izenship C='162, 163.J
right of entry for breach ofcondition. See POWER OF
TERMINATION.
right ofentry for condition broken. See POWER OF TER
MINATION.
right ofexoneration. See EQUITY OF EXONERATION.
right of family integrity. A fundamental and substan
tive due-process right for a family unit to be free of
unjustified state interference. -While not specifically
mentioned in the u.s. Constitution, this right is said to i
emanate from it. The contours ofthe right are nebulous
and incompletely defined, but it at least includes the
right to bear children, to rear them, and to guide them
according to the parents' beliefs, as well as the right of
children to be raised by their parents free of unwar- i
ranted interference by state officials. The right restricts i
state action under the Fourteenth Amendment. Inter
ference is not permitted in the absence ofa compelling
state interest and is reviewed under a strict-scrutiny
standard. Most courts require a state to establish by
clear and convincing evidence that interference in a
familial relationship is justified. -Also termed right to !
family integrity. See PARENTAL-AUTONOMY DOCTRINE;
PARENTAL-PRIVILEGE DOCTRINE. Cf. freedom of
intimate association under FREEDOM OF ASSOCIATION.
[Cases: Constitutional Law (:=)4382.]
right of first publication. See common-law copyright
under COPYRIGHT.
right of first refusal. 1. A potential buyer's contractual
right to meet the terms ofa third party's higher offer.
-For example, if Beth has a right offirst refusal on the
purchase ofSam'~ house, and ifTerry offers to buy the
house for $300,000, then Beth can match this offer and
prevent Terry from buying it. Cf. RIGHT OF PREEMP
TION. [Cases: Contracts (:=> 16.5, 172; Sales 64;
Vendor and Purchaser <8=> 18(.5), 57.] 2. Family law.
The right of a parent to be offered the opportunity to
have custody ofa child other than during a usual visi
tation period before the other parent turns to a third
party caregiver. -The right may be exercised by either
parent, and may exist in circumstances that are fore
seeable (e.g., a business trip) or unforeseeable (e.g., an
illness). [Cases: Child Custody <8=> 149.J
right offishery. See FISHERY (1).
right ofinnocent passage. See I;'oI;'oIOCENT PASSAGE.
right ofoccupancy. See INDIAN TITLE.
right ofpetition. See RIGHT TO PETITION. right of search
right of possession. The right to hold, use, occupy, or
otherwise enjoy a given property; esp., the right to enter
real property and eject or evict a wrongful possessor.
[Cases: Forcible Entry and Detainer <8=>9(2).J
right of preemption. A potential buyer's contractual
right to have the first opportunity to buy, at a speCified
price, ifthe seller chooses to sell within the contracted
period. -For example, if Beth has a right of preemp
tion on Sam's house for five years at $100,000, Sam can
either keep the house for five years (in which case Beth's
right expires) or, ifhe wishes to sell during those five
years, offer the house to Beth, who can either buy it for
$100,000 or refuse to buy. IfBeth refuses, Sam can sell
to someone else. -Also termedfirst option to buy. Cf.
RIGHT OF FIRST REFUSAL. [Cases: Contracts <8=> 16.5;
Sales Vendor and Purchaser C-~18(.5).]
right ofprivacy. 1. The right to personal autonomy. _ The
u.s. Constitution does not explicitly provide for a right
of privacy or for a general right ofpersonal autonomy,
but the Supreme Court has repeatedly ruled that a
right of personal autonomy is implied in the "zones
of privacy" created by specific constitutional guaran
tees. [Cases: Constitutional Law <>.:>121O-1275.J 2. The
right of a person and the person's property to be free
from unwarranted public scrutiny or exposure. -Also
termed right to privacy. See INVASION OF PRIVACY.
right of publicity. The right to control the use of one's
own name, picture, or likeness and to prevent another
from using it for commercial benefit without one's
consent. [Cases: Torts <8=>384.]
'The right of publicity IS a state-law created intellectual
property right whose infringement is a commerCial tort of
unfair competition. It is a distinct legal category, not just
a 'kind of' trademark, copyright, false advertising or right
of privacy." 1 j. Thomas McCarthy. The Rights of Publicity
and Privacy 1 :3, at 1-2 (2d ed. 2000).
right ofredemption. 1. See EQUITY OF REDEMPTION. 2.
See STATUTORY RIGHT OF REDEMPTION.
right of reentry. See POWER OF TERMIN ATION.
right ofrelief. Scots law. See EQUITY OF SUBROGATION.
right ofreproduction. See REPRODUCTION RIGHT.
right of rescission. See RIGHT TO RESCIND.
right ofretainer. A trustee's power to withhold trust
funds or property from distribution, exercisable when
the beneficiary owes money to the trust. [Cases: Trusts
(>=>282.]
right ofretention. See RETENTION.
right ofrevolution.lhe inherent right ofa people to cast
out its rulers, change its polity, or effect radical reforms
in its system of government or institutions, by force
or general uprising, when the legal and constitutional
methods of making such changes have proved inad
equate or are so obstructed as to be unavailable.
right of search. Int'llaw. The right to stop, visit, and
examine vessels on the high seas to discover whether
they or the goods they carry are liable to capture; esp.,
a belligerent state's right to stop any merchant vessel
of a neutral state on the high seas and to search as
1440 right of subrogation
reasonably necessary to determine whether the ship
has become liable to capture under the international
law of naval warfare. -This right carries with it no
right to destroy without full examination, unless those
on a given vessel actively resist. -Also termed right of
visit; right ojvisit and search; right ojvisitation; right of
visitation and search. See VISIT.
right ofsubrogation. 1. See SUBROGATION. 2. See EQUITY
OF SUBROGATION.
right of suit. A person's right to seek redress in a court.
[Cases: Action C::::>l.J
right ofsupport. Property. 1. A landowner's right to have
the land supported by adjacent land and by the underly
ing earth. [Cases: Adjoining Landowners C::::>2.J 2. A
servitude giving the owner of a house the right to rest
timber on the walls ofa neighboring house.
right of survivorship. A joint tenant's right to succeed
to the whole estate upon the death of the other joint
tenant. -Also termed jus accrescendi. See SURVI
voRsHIp; joint tenancy under TENANCY. [Cases: Joint
Tenancy C::::>6.J
right oftermination. A remedy involving the ending of
contractual relations, accorded to a party to a contract
when the other party breaches a duty that arises under
the contract. -The right of termination is contrasted
with a right to rescind, which arises when the other
party breaches a duty that arises independently of the
contract. Also termed right to terminate. [Cases:
Contracts ~~217; Sales C::::>84.]
right of transit passage. See TRANSIT PASSAGE.
right ofvisit. See RIGHT OF SEARCH.
right ofvisit and search. See RIGHT OF SEARCH.
right of visitation. 1. VISITATION RIGHT. 2. RIGHT OF
SEARCH.
right ofvisitation and search. See RIGHT OF SEARCH.
right-of-way. 1. The right to pass through property
owned by another. - A right-of-way may be estab
lished by contract, by longstanding usage, or by public
authority (as with a highway). Cf. EASEMENT. [Cases:
Easements C::::> 1.] 2. The right to build and operate a
railway line or a highway on land belonging to another,
or the land so used. [Cases: Railroads C::::>69.] 3. The
to take precedence in traffic. [Cases: Automobiles
171(4); Highways <'::='99;]3. The strip ofland
subject to a nonowner's right to pass through. -Also
written right ojway. PI. rights-of-way.
private right-oj-way. See EASEMENT.
public right-ai-way. The right of passage held by the
public in general to travel on roads, freeways, and
other thoroughfares.
right ofwharfing out. A right to the exclusive use of
submerged lands, as by establishing a permanent struc
ture or wharf on the land to dock oceangoing vessels.
[Cases: Navigable Waters (:::::;43(2).J
rights arbitration. Seegrievance arbitration under ARBI
TRATION. rights-consciousness. See CLAIMS-CONSCIOUSNESS.
rights-management information. Intellectual property.
Information about an intellectual-property right,
affixed to the subject matter when it is communicated
to the public, esp. in electronic form, and identifying
the right's owner, terms of use, indexing numbers or
codes, or other identifying information. -The infor
mation facilitates contracting with the owner of the
rights. In digital technology, laws may ban the removal
or alteration of rights-management information as a
form ofintellectual-property protection.
rights ofattribution. See ATTRIBUTION RIGHTS.
rights off. See EX RIGHTS.
rights offering. See OFFERING.
rights on. See CUM RIGHTS.
right to assemble. See RIGHT OF ASSEMBLY.
right to assistance of counsel. See RIGHT TO COUNSEL.
right to bear arms. The constitutional right of persons
to own firearms. U.S. Const. amend II. See SECOND
AMENDMENT. [Cases: Weapons
right to choose. See FREEDOM OF CHOICE.
right-to-convey covenant. See covenant ofseisin under
COVENANT (4).
right to counsel. 1. Criminal law. A criminal defen
dant's constitutional right, guaranteed by the Sixth
Amendment, to representation by a court-appointed
lawyer ifthe defendant cannot afford to hire one. -The
Supreme Court has recognized a juvenile delinquent
defendant's right to counsel. In re Gault, 387 U.S. 1,
87 S.Ct. 1428 (1967). Also termed benefit ojcounsel;
right to assistance ofcounsel. [Cases: Criminal Law <.::='
1766.) 2. Family law. The right ofa defendant in a suit
for termination of parental rights to representation by
a court-apPOinted lawyer if the defendant cannot afford
to hire one. _ Although some states appoint counsel for
indigent defendants in a suit for termination ofparental
rights, the Supreme Court has held that the Consti
tution does not require that counsel be appointed for
indigent defendants in all termination suits, but if a
criminal charge may be made, the right to counsel may
attach. Lassiter v. Department ofSoc. Servs., 452 U.S. 18,
101 S.Ct. 2153 (1981). -Also termed {in both senses}
access to counsel. [Cases: Infants C::::>205.] See ASSIS
TANCE OF COUNSEL.
right to die. The right ofa terminally ill person to refuse
life-sustaining treatment. Also termed right to reJuse
treatment. See ADVANCE DIRECTIVE. [Cases: Health C::::>
914.)
right to exclude. Patents. A patentee's right to prevent
others from making, using, selling, or offering for sale
the patentee's invention. [Cases: Patents C=:'191.]
right to family integrity. See RIGHT OF FAMILY INTEG
RITY.
right-to-know act. A federal or state statute requir
ing businesses (such as chemical manufacturers) that
produce hazardous substances to disclose information
1441
about the substances both |
urers) that
produce hazardous substances to disclose information
1441
about the substances both to the community where they
are produced or stored and to employees who handle
them. -Also termed right-to-know statute. [Cases:
Environmental Law (:::::>415.]
right to petition. (17c) The constitutional right -guar
anteed by the First Amendment -ofthe people to make
formal requests to the government, as by lobbying or
writing letters to public officials. Also termed right
ofpetition;freedom ofpetition. [Cases: Constitutional
Law (::::-J 1435-1438.]
right to privacy. See RIGHT OF PRIVACY.
right to pursue happiness. See HAPPINESS, RIGHT TO
PURSUE.
right to refuse treatment. See RIGHT TO DIE.
right to remain silent. See RIGHT AGAINST SELF-INCRIM
INATION.
right to rescind. The remedy accorded to a party to a
contract when the other party breaches a duty that
arises independently of the contract . The right to
rescind is contrasted with a right oftermination, which
arises when the other party breaches a duty that arises
under the contract. -Also termed right ofrescission.
[Cases: Contracts (:::::>258.]
right to terminate. See RIGHT OF TERMINATION.
right to travel. (1838) A person's constitutional right
guaranteed by the Privileges and Immunities Clause
to travel freely between states.
right to vote. See SUFFRAGE (1).
right-to-work law. (1958) A state law that prevents labor
management agreements requiring a person to join a
union as a condition of employment. See open shop
under SHOP. [Cases: Labor and Employment (::~~964,
1264.]
right-wrong test. See MCNAGHTEN RULES.
rigid constitution. See CONSTITUTION.
rigor juris (rig-;:lr joor-is). [Latin] Strictness of law. Cf.
GRATIA CURIAE.
rigor mortis (rig-;:lr mor-tis). The temporary stiffening of
a body's joints and muscles after death . The onset of
rigor mortis can vary from 15 minutes to several hours
after death, depending on the body's condition and on
atmospheric factors.
ringing out. See RINGING UP.
ringing the cbanges. Fraud conSisting in the offender's
using a large bill to pay for a small purchase, waiting
for the shopkeeper to put change on the counter, and
then, by a series of maneuvers involving changes of
mind -such as asking for some other article oflittle
value or for smaller change for some of the money on
the counter creating a confused situation in which
the offender picks up more the money than due. [Cases:
Larceny (:::::> 14(1).]
ringing up. A method by which commodities dealers
cooperate to discharge contracts for future delivery
in advance by using offsets, cancellations, and price riparian proprietor
adjustments, thus saving the cost ofactual delivery and
change ofpossession. Also termed ringing out.
riot, n. (14c) 1. An assemblage ofthree or more persons
in a public place taking concerted action in a turbulent
and disorderly manner for a common purpose (regard
less of the lawfulness of that purpose). 2. An unlawful
disturbance of the peace by an assemblage ofusu. three
or more persons acting with a common purpose in a
violent or tumultuous manner that threatens or terror
izes the public or an institution. Cf. unlawful assembly
under ASSEMBLY; CIVIL COMMOTION; ROUT; AFFRAY.
[Cases: Riot (;=:> 1.J riotous, adj. riot, vb.
"A riot is defined as an unlawful assembly (i.e. an assembly
come together in pursuance of an unlawful purpose), con
sisting of at least three persons, which has begun to create
a breach of the peace. At Common Law it is an indictable
misdemeanour, punishable by a fine and imprisonment.
But the statutory form of it, introduced by the Riot Act of
1714, is better known. By that statute, passed to deal with
Jacobite disturbances, it was provided that the members of
a riotous assembly of twelve or more persons which does
not disperse within an hour after the reading by a magis
trate of the proclamation contained in the Act, become
guilty of felony, which, at the time of the passing of the Act,
was a capital offence, and is, even now, punishable with
imprisonment for life." Edward Jenks, The Book of English
Law 136 (P. B. Fairest ed., 6th ed. 1967).
"A riot is a tumultuous disturbance of the peace by three
or more persons acting together (a) in the commission
of a crime by open force, or (b) in the execution of some
enterprise, lawful or unlawful, in such aviolent, turbulent
and unauthorized manner as to create likelihood of public
terror and alarm .... When they come together for this
purpose they are gUilty of unlawful assembly. When they
start on their way to carry out their common design they
are guilty of rout. In the actual execution of their design
they are gUilty of riot." Rollin M. Perkins &Ronald N. Boyce,
Criminal Law483 (3d ed. 1982).
Riot Act. A 1714 English statute that made it a capital
offense for ] 2 or more rioters to remain together for an
hour after a magistrate has officially proclaimed that
rioters must disperse . This statute was not generally
accepted in the United States and did not become a part
of American common law. It did, however, become a
permanent part ofthe English language in the slang
phrase reading the riot act (meaning "to reprimand
vigorously"), which originally referred to the official
command for rioters to disperse.
riotous assembly. See ASSEMBLY.
ripae muniendae causa (rl-pee myoo-nee-en-dee
kaw-z<l). [Latin] Hist. For the purpose of strengthen
ing a riverbank.
riparian (ri-pair-ee-;:ln or fI-), adj. (1841) Of, relating to,
or located on the bank ofa river or stream (or occasion
ally another body of water, such as a lake) <riparian
land> <a riparian owner>. Cf. LITTORAL. [Cases: Navi
gable Waters (;=:>39-46; Waters and Water Courses
34-49,109.]
riparian land. See LAND.
riparian proprietor. (1808) A person who is in posses
sion ofriparian land or who owns an estate in it; a land
owner whose property borders on a stream or river. See
1442 riparian right
riparian land under LAND. [Cases: Navigable Waters
(;:::;39(1); Waters and Water Courses (;:::;39.]
riparian right. (often pl.) (1860) The right ofa landowner
whose property borders on a body of water or water
course. Such a landowner traditionally has the right
to make reasonable use of the water. Also termed
water right. [Cases: Navigable Waters C::;)39-46; Waters
and Water Courses (;:::;34-47.]
riparian-rights doctrine. (1921) The rule that owners
of land bordering on a waterway have equal rights to
use the water passing through or by their property. Cf.
PRIOR-APPROPRIATION DOCTRINE. [Cases: Navigable
Waters Waters and Water Courses (;:::>40.]
ripeness, n. 1. The state ofa dispute that has reached, but
has not passed. the point when the facts have developed
sufficiently to permit an intelligent and useful decision
to be made. 2. The requirement that this state must exist
before a court will decide a controversy. See JUSTICIA
BILITY. Cf. MOOTNESS DOCTRINE; PREMATURITY (1).
[Cases: Action Federal Courts -ripe,
adj. ripen, vb.
ripper act. Slang. A statute that gives a government's
chief executive broad powers to appoint and remove
department heads or other subordinate officials.
rise, vb. 1. (Of a court) to adjourn finally at the end of
a term. 2. (Of spectators and participants in a court
room) to stand when the judge enters or exits. 3. (Ofa
court) to take a recess or temporary break, as at the end
ofa day. 4. Parliamentary law. (Of a special committee
that has exhausted its business) to dissolve and send a
report to the referring body. A committee's rising is
equivalent to a deliberative assembly's adjourning sine
die. -Also termed rise and report. Cf. adjourn sine die
under ADJOURN (2).
rising vote. See VOTE (4).
rising vote ofthanks. See rising vote under VOTE (4).
risk, n. (17c) 1. The uncertainty ofa result, happening, or
loss; the chance ofinjury, damage, or loss; esp., the exis
tence and extent ofthe possibility of harm <many feel
that skydiving is not worth the risk>. See ASSUMPTION
OF THE RISK. 2. Liability for injury, damage, or loss
if it occurs <the consumer-protection statute placed
the risk on the manufacturer instead of the buyer>. 3.
Insurance. The chance or degree ofprobability ofloss to
the subject matter of an insurance policy <the insurer
undertook the risk in exchange for a premium>. Cf.
PERIL [Cases: Insurance (;:::; 1542.] 4 . .Insurance.
The amount that an insurer stands to lose <the under
writer took steps to reduce its total risk>. 5 . .Insurance.
A person or thing that an insurer considers a hazard;
someone or something that might be covered by an
insurance policy <she's a poor risk for health insur
ance>. [Cases: Insurance (>~ 1542(3).] 6. Insurance.
The type of loss covered by a policy; a hazard from a
specified source <this homeowner's policy covers fire
risks and flood risks>. [Cases: Insurance (;:::;2097.]
risk, vb. absorbable risk. A potential loss that a corporation
believes that it can cover either with available capital
or with self-insurance.
assigned risk. One who is a poor risk for insurance
but whom an insurance company is forced to insure
because ofstate law . For example, an accident-prone
driver is an aSSigned risk in a state with a compulsory
motor-vehicle-insurance statute. [Cases: Insurance
(;:::; 1528.]
classified risk. In life-and health-insurance policies,
the risk created by a policyholder's substandard health
or other periL
noninsurable risk. A risk for which insurance will not
be written because the risk is too uncertain to be the
subject ofactuarial analysis.
pure risk. A risk that can only result in a loss . Insur
ance protects only against pure risks. Cf. speculative
risk.
shifting risk. The changing risk covered under an
insurance policy insuring a stock ofgoods or similar
property that varies in amount and composition in
the course oftrade. [Cases: Insurance (;:::;2138(1).]
speculative risk. A risk that can result in either a loss
or a gain. Cf. pure risk.
risk arbitrage. See ARBITRAGE.
risk assessment. Family law. A process for ascertaining
the likelihood that a person, usu. a parent, will harm
a child . Before a child can be removed from his or
her family by agovernmental entity, a risk assessment
should be performed to determine the likelihood of
the child's being harmed in the future. [Cases: Infants
risk-averse, adj. (Of a person) uncomfortable with vol
atility or uncertainty; not willing to take risks; very
cautious <a risk-averse investor>.
risk-benefit test. See RISK-UTILITY TEST.
risk capital. See CAPITAL.
risk-capital test. Securities. A test of whether a trans
action constitutes the sale of a security (and is thus
subject to securities laws) based on whether the seller is
soliciting risk capital with which to develop a business
venture. Cf. CAPITAL-RISK TEST. [Cases: Securities Reg
ulation 248, 249.]
risk distribution. The method by which a legal system
allocates the risk of harm between the person who
suffers it and the loss.
risk factor. Insurance. In life-insurance ratemaking,
the estimated cost of present and future claims, based
on a mortality table. The risk factor is one element
that a life insurer uses to calculate premium rates. See
PREMIUM RATE. Cf. INTEREST FACTOR; MORTALITY
FACTOR. [Cases: Insurance
risk management. The procedures or systems used to
minimize accidental losses, esp. to a business.
Risk Management Agency. An agency in the U.S. Depart
ment ofAgriculture responsible for administering the
1443 Rochin rule
programs of the Federal Crop Insurance Corpora
tion and for overseeing other programs relating to the
risk management ofcrops and commodities. Abbr.
RMA.
risk ofjurydoubt. See BURDEN OF PERSVASION.
riskofloss. (i8c) I. The danger or possibility ofdamage
to, destruction of, or misplacement of goods or other
property <commercial transportation always carries
some risk of loss>. 2. Responsibility for bearing the
costs and expenses of such damage, destruction, or
misplacement <the contract specifies who assumes
the risk ofloss>.
risk ofnonpersuasion. See BURDEN OF PERSUASION.
risk-stops-here rule. See DOCTRINE OF SUPERIOR
EQUITIES.
risk-utility test. (1982) A method ofimposing product
liability on a manufacturer ifthe evidence shows that a
reasonable person would conclude that the benefits ofa
product |
posing product
liability on a manufacturer ifthe evidence shows that a
reasonable person would conclude that the benefits ofa
product's particular design versus the feasibility of an
alternative safer design did not outweigh the dangers
inherent in the original design. Also termed danger
utility test; risk-benefit test. Cf. CONSUMER-CONTEM
PLATION TEST. [Cases: Products Liability (;.::::> 129.]
RIT. abbr. Rochester Institute of Technology. See
NATIONAL TECHNICAL INSTITUTE FOR THE DEAF.
river. A natural, flowing body ofwater that empties into
another bodv ofwater, such as a lake, sea, or channel.
[Cases: Xav'igable Waters 1; Waters and Water
Courses (;.::::>38.]
international river. A river that flows through or
between two or more countries.
national river. A river wholly contained within a Single
country. That country has exclusive territorial rights
over the river. [Cases: Navigable Waters (;.::::>2.]
private river. A river to which a riparian owner may
claim ownership ofthe riverbed because the river is
unnavigable or navigable only by vessels with shallow
drafts. A navigable private river is not wholly owned
by a private person and cannot be closed to public
use; people may still make ordinary use ofthe river
for transportation and navigation. [Cases: Navigable
Waters (;.::::>4.]
RL/e. See revolving letter ofcredit under LETTER OF
CREDIT.
RMA. abbr. RISK MANAGEMENT AGENCY.
RMS. abbr. REPRESSED-MEMORY SYNDROME.
roadstead. Maritime law. A convenient or safe place
where vessels usu. anchor. [Cases: Collision (;.::::>69.]
robbery, n. (12c) The illegal taking of property from
the person ofanother, or in the person's presence, by
violence or intimidation; aggravated larceny . Robbery
is usu. a felony, but some jurisdictions classify some
robberies as high misdemeanors. Also termed
(in Latin) crimen roberiae. See LARCENY; THEFT. Cf.
BURGLARY. [Cases: Robbery(;'::::> 1.] -rob, vb. "Robbery is larceny from the person by violence or intimida
tion. It is a felony both at common law and under modern
statutes. Under some of the new penal codes robbery
does not require an actual taking of property. If force or
intimidation is used in the attempt to commit theft this is
sufficient." Rollin M. Perkins & Ronald N. Boyce, Criminal
Law 343 (3d ed. 1982),
aggravated robbery. (1878) Robbery committed by
a person who either carries a dangerous weapon
often called armed robbery or inflicts bodily harm
on someone during the robbery. Some statutes also
specify that a robbery is aggravated when the victim
is a member ofa protected class, such as children or
the elderly. [Cases: Robbery 11.]
armed robbery. (1926) Robbery committed by a person
carrying a dangerous weapon, regardless ofwhether
the weapon is revealed or used. Most states punish
armed robbery as an aggravated form of robbery
rather than as a separate crime. [Cases: Robbery (;.::::>
11.]
conjoint robbery (k~n-;oynt). A robbery committed by
two or more persons. [Cases: Robbery (;.::::> 15.1
highway robbery. 1. Robbery committed against a
traveler on ornear a public highway. [Cases: Robbery
(;.::::> 1.] 2. Figuratively, a price or fee that is unreason
ably high; excessive profit or advantage.
simple robbery. (18c) Robbery that does not involve an
aggravating factor or circumstance. [Cases: Robbery
(;.::::> 1.]
robe. (I8c) 1. The gown worn by a judge while presiding
over court. In the U.S., judges generally wear plain
black gowns. In the u.K., judicial robes vary in color
and adornment, depending on the judge's rank, the
season, and the court, and are traditionally worn with
white horsehair wigs. Also termed judicial robe. 2.
(often cap.) The legal or judicial profession <eminent
members ofthe robe>.
Robert's Rules. 1. A parliamentary manual titled Robert's
Rules ofOrder, originally written in 1875-76 by Henry
M. Robert (1837-1923) . The manual went through
three editions under its original title and three more
(beginning in 1915) under the title Robert's Rules of
Order Revised. Since 1970 it has been titled Robert's
Rules ofOrder Newly Revised. It is the best selling and
most commonly adopted parliamentary manual in
the United States. 2. Any parliamentary manual that
includes "Robert's Rules" in its title . 1he copyright
on the first several editions has expired, and many imi
tators have adapted those editions in varying degrees
offaithfulness to the original. 3. (Sing.) RULE (3). See
PARLIAMENTARY MANUAL.
Robinson-Patman Act. A federal statute (specif., an
amendment to the Clayton Act) prohibiting price
discrimination that hinders competition or tends to
create a monopoly. 15 USCA 13. See ANTITRUST LAW;
CLAYTON ACT. [Cases: Antitrust and Trade Regulation
(;.::::>452.]
Rochin rule. The now-rejected principle that uncon
stitutionally obtained evidence is admissible against
rocket docket 1444
the accused unless the evidence was obtained in a
manner that shocks the conscience (such as pumping
the stomach of a suspect to obtain illegal drugs that
the suspect has swallowed, as occurred in the Rochin
v. California case). -The Supreme Court handed down
Rochin before the Fourth Amendment exclUSionary rule
applied to the states. Rochin v. California, 342 U.S. 165,
72 S.Ct. 205 (1952). [Cases: Criminal Law (;::::>394.]
rocket docket. (1987) 1. An accelerated dispute-resolu
tion process. 2. A court or judicial district known for
its speedy disposition ofcases. 3. A similar administra
tive process, in which disputes must be decided within
a specified time (such as 60 days).
ROD. abbr. See RECORD OF DECISION.
rogatio testium. The production of a witness who can
testify to the making of a nuncupative will. -The
witness must confirm that the testator declared or
expressed that the words spoken were a will. See nun
cupative will under WILL. [Cases: Wills (;::::> 142.]
rogatory letter (rog-~-tor-ee). See LETTER OF REQUEST.
rogue court. See COURT.
rogue jury. See JURY.
roll, n. (14c) 1. A record of a court's or public office's
proceedings. [Cases: Judgment (;::::>277; Records
6, 32.] 2. An official list of the persons and property
subject to taxation. -Also termed (in sense 2) tax roll;
tax list; assessment roll. Cf. TAXPAYERS' LISTS. [Cases:
Taxation (;::::>2576.]3. Parliamentary law. The roster of
those entitled to vote. Also termed roll ofdelegates;
roll ofmembers.
roll call. See CALL (1).
roll-call vote. See VOTE (4).
rolled-up plea. See PLEA b).
rolling stock. Movable property, such as locomotives
and rail cars, owned by a railroad.
roll ofdelegates. See ROLL (3).
roll ofmembers. See ROLL (3).
rollover, n. 1. The extension or renewal of a short-term
loan; the refinancing ofa maturing loan or note. 2. The
transfer of funds (such as IRA funds) to a new invest
ment of the same type, esp. so as to defer payment of
taxes. [Cases: Internal Revenue (;::::>3587, 3594.] roll
over, vb.
rollover mortgage. See renegotiable-rate mortgage under
MORTGAGE.
Roman-Dutch law. A system oflaw in Holland from the
mid-15th century to the early 19th century, based on a
mixture ofGermanic customary law and Roman law as
interpreted in medieval and Renaissance lawbooks_
This law forms the basis of modern South African law,
the law of several other countries in southern Africa,
and the law of Sri Lanka.
"The phrase 'RomanDutch Law' was invented by Simon
van Leeuwen. who employed it as the sub-title of his work
entitled Paratitla Juris Novissimi, published at Leyden in
1652. Subsequently his larger and better known treatise on the 'Roman-Dutch Law' was issued under that name
in the year 1664.
''The system of law thus described is that which obtained
in the province of Holland from the middle ofthe fifteenth
to the early years of the nineteenth century. Its main prin
ciples were carried by the Dutch into their settlements in
the East and West Indies; and when some of these, namely.
the Cape of Good Hope, Ceylon, and part of Guiana, at the
end ofthe eighteenth and the beginning of the nineteenth
century, passed under the dominion of the Crown ofGreat
Britain, the old law was retained as the common law of
the territories which now became British colonies. With
the expansion of the British Empire in South Africa, the
sphere ofthe Roman-Dutch Law has extended its boundar
ies, until the whole of the area comprised within the Union
of South Africa ... has adopted this system as its common
law. This is the more remarkable since in Holland itself and
in the Dutch colonies of the present day the old law has
been replaced by codes ...." RW. Lee, An Introduction to
Roman-Dutch Law 2 (4th ed. 1946).
Romanesque law. See CIVIL LAW (1).
Romanist, n. One who is versed in or practices Roman
law; a Roman-law specialist.
Roman law. (l6c) The legal system ofthe ancient Romans,
forming the basis of the modern civil law; CIVIL LAW
(1).
'The Roman law is the body of rules that governed the
social relations of many peoples in Europe, Asia. and Africa
for some period between the earliest prehistoric times and
1453 A.D. This date should perhaps be extended to 1900
A.D., or even to the present time. and we might include
America in the territory concerned.... Yet the essential
fact is that no present-day community ... consciously
applies as binding upon its citizens the rules of Roman law
in their unmodified form. That law is an historical fact. It
would have only a tepid historical interest ... if it were not
for the circumstance that. before it became a purely histori
cal fact, it was worked into the foundation and framework
of what is called the civil law ...." Max Radin, Handbook
ofRoman Law 1 (1927).
"Roman law is not only the best-known, the most highly
developed, and the most influential of all legal systems
of the past; apart from English law, it is also the only one
whose entire and unbroken history can be traced from
early and primitive beginnings to a stage of elaborate
perfection in the hands of skilled specialists." Hans julius
Wolff, Roman Law: An Historical Introduction 5 (1951).
Rome Act. Copyright. A 1928 revision of the Berne
Convention adding the moral rights of attribution
and integrity to the minimum standards of protec
tion that member nations must recognize, creating a
compulsory license ofrecorded performances tor radio
broadcasting, and specifying that the term of protec
tion for joint works must be measured from the death
of the last surviving coauthor. Also termed Rome
Act of1928; 1928 Rome Act.
Rome Convention. See ROME CONVENTION ON RELATED
RIGHTS.
Rome Convention on Related Rights. Copyright. A 1961
treaty setting minimum standards for neighboring
rights of performers, producers, and broadcasters.
The United States is not a signatory. Neighboring rights
were not protected under the Paris Convention or the
Berne Convention. They are part ofthe copyright pro
tection under the Agreement on Trade-Related Aspects
1445
ofIntellectual Property (TRIPs). -Also termed Con
vention for the Protection ofPerformers, Producers of
Phonograms and Broadcasting Organizations. Often
shortened to Rome Convention. See NEIGHBORING
RIGHT.
Rooker-Feldman doctrine. The rule that a federal court
cannot consider claims actually decided by a state court
or claims inextricably intertwined with an earlier
state-court judgment. Rooker v. Fidelity Trust Co., 263
U.S. 413,415-16,44 S.Ct. 149,150 (1923); District of
Columbia Ct. ofApp. v. Feldman, 460 U.S. 462, 476,
103 S.Ct. 1303, 1311 (1983). This doctrine precludes "a
party losing in state court ... from seeking what in sub
stance would be appellate review of [a] state judgment
in a United States district court, based on the losing
party's claim that the state judgment itself violates
the loser's federal rights." Johnson v. De Grandy, 512
U.S. 997,1005-06,114 S.Ct. 2647, 2654 (1994). [Cases:
Courts (:::::>509.]
root. Civil law. A descendant.
root of title. (1846) The recorded land transaction, usu.
at least 40 years old, that is used to begin a title search.
See CHAIN OF TITLE; TITLE SEARCH.
ROR. abbr. RE |
to begin a title search.
See CHAIN OF TITLE; TITLE SEARCH.
ROR. abbr. RELEASE ON RECOGNIZANCE.
Roth IRA. See INDIVIDUAL RETIREMENT ACCOUNT.
round lot. See LOT (3).
round-up. See dragnet arrest under ARREST.
roup. Scots law. A sale by auction (usu. public).
rout (rowt), n. (I5c) 'The offense that occurs when an
unlawful assembly makes some move toward the
accomplishment ofits participants' common purpose.
Cf. RIOT. [Cases: Riot (:::::> 1.]
'The word 'rout' comes from the same source as the word
'route.' It signifies that three or more who have gathered
together in unlawful assembly are 'on their way.' It is
not necessary for guilt of this offense that the design be
actually carried out, nor that the journey be made in a
tumultuous manner." Rollin M. Perkins & Ronald N. Boyce,
Criminal Law 483 (3d ed. 1982).
routine-activities theory. (1985) The theory that
criminal acts occur when (1) a person is motivated to
commit the offense, (2) a vulnerable victim is avail
able, and (3) there is insufficient protection to prevent
the crime. Cf. CONTROL THEORY; RATIONAL-CHOICE
THEORY; STRAIN THEORY.
Royal Marriages Act. A 1772 statute (12 Geo. 3, ch. 1)
forbidding members ofthe royal family from marrying
without the sovereign's permission, except on certain
conditions.
"Royal Marriages Act .... An Act occasioned by George
Ill's fear of the effect on the dignity and honour of the royal
family of members thereof contracting unsuitable mar
riages, two of his brothers having done so .... It provided
that marriages of descendants of George II, other than the
issue of princesses who marry into foreign families, should
not be valid unless they had the consent of the King in
CounCil, or, ifthe parties were aged over 25, they had given
12 months' notice to the Privy Council. unless during that
time both Houses of Parliament expressly declare disap royalty
proval of the proposed marriage." David M. Walker, The
Oxford Companion to Law 1091 (1980).
royalty. (1839) 1. Intellectual property. A payment in
addition to or in place ofan up-front payment -made
to an author or inventor for each copy of a work or
article sold under a copyright or patent. Royalties
are often paid per item made, used, or sold, or per time
elapsed. [Cases: Copyrights and Intellectual Property
C-:::>48; Patents <:::J217.1.]
established royalty. A royalty set at an agreed-on price.
In the absence ofan established royalty, a court will
determine a remedy for infringement based on what
a reasonable royalty would have been.
reasonable royalty. A royalty that a licensee would be
willing to pay the holder of the thing's intellectual
property rights while still making a reasonable profit
from its use . The reasonable-royalty standard often
serves as the measure ofdamages in a claim ofpatent,
copyright, or trademark infringement, or for misap
propriation oftrade secrets. In deciding what royalty
is reasonable in a trade-secrets suit, courts consider
the unique circumstances of the case, as well as (1)
how the use affected the parties' ability to compete;
(2) the cost ofpast licenses; (3) the cost to develop the
secret and its present value; (4) how the defendant
intends to use the information; and (5) the availability
ofalternatives. [Cases: Patents G-'J319(l).]
2. Oil & gas. A share ofthe product or profit from real
property, reserved by the grantor of a mineral lease,
in exchange for the lessee's right to mine or drill on
the land. -Also termed (in sense 2) override. [Cases:
Mines and Minerals (;:=:;,70,79.]
haulage royalty. A royalty paid to a landowner for
moving coal via a subterranean passageway under the
landowner's land from a mine located on an adjacent
property. The payment is calculated at a certain
amount per ton of coal.
landowner's royalty. A share of production or revenues
prOVided for the lessor in the royalty clause ofthe oil
and-gas lease and paid at the well free of any costs
of production. Traditionally, except in California,
the landowner's royalty has been 1/8 ofgross produc
tion for oil and 1/8 ofthe proceeds received from the
sale of gas. But today the size is often negotiated.
Also termed leaseholder royalty. [Cases: Mines and
Minerals (:::::>79.1(1).]
mineral royalty. A right to a share of income from
mineral production. [Cases: Mines and Minerals
(:::::>70, 79.]
nonparticipating royalty. A share ofproduction or
ofthe revenue from production free its costs carved
out ofthe mineral interest. A nonparticipating-roy
alty holder is entitled to the stated share ofproduction
or cash without regard to the terms ofany lease. Non
participating royalties are often retained by mineral
interest owners who sell their rights. [Cases: Mines
and Minerals (:::::>79.1(1).]
royalty interest 1446
overriding royalty. A share of either production or
revenue from production (free of the costs of pro
duction) carved out ofa lessee's interest under an oil
and-gas lease . Overriding-royalty interests are often
used to compensate those who have helped structure a
drilling venture. An overriding-royalty interest ends
when the underlying lease terminates. [Cases: Mines
and Minerals C=>74.J
shut-in royalty. A payment made by an oil-and-gas
lessee to the lessor to keep the lease in force when a
well capable ofproducing is not utilized because there
is no market for the oil or gas. Generally, without
such a payment, the lease will terminate at the end of
the primary term unless actual production has begun.
[Cases: Mines and Minerals C=>78.l(3).]
royalty interest. Oil & gas. A share of production -or
the value or proceeds of production, free of the costs
of production -when and if there is production . A
royalty interest is usu. expressed as a fraction (such as
1/6). A royalty-interest owner has no right to operate
the property and therefore no right to lease the property
or to share in bonuses or delay rentals. In some states
a royalty owner has the right of ingress and egress to
take the royalty production. Authorities are split over
what costs are costs of production. Several different
but related kinds of royalty interests are commonly
encountered. See ROYALTY (2).
rptr. abbr. REPORTER.
RRB. abbr. RAILROAD RETIREMENT BOARD.
R.S. See revised statutes under STATUTE.
RSPA. abbr. RESEARCH AND SPECIAL PROGRAMS ADMIN
ISTRATION.
RTC. abbr. RESOLUTION TRUST CORPORATION.
rubber check. See bad check under CHECK.
rubber-stamp seal. See NOTARY SEAL.
rubric (roo-brik). 1. The title of a statute or code <the
rubric of the relevant statute is the Civil Rights Act
of 1964>.2. A category or designation <assignment
of rights falls under the rubric of contract law>. 3.
An authoritative rule, esp. for conducting a public
worship service <the rubric dictates whether the con
gregation should stand or kneel>. 4. An introductory
or explanatory note; a preface <a well-known scholar
wrote the rubric to the book's fourth edition>. 5. An
established rule, custom, or law <what is the rubric in
the Northern District of Texas regarding appearance
at docket call?>.
rule, n. (13c) 1. Generally, an established and authorita
tive standard or principle; a general norm mandating or
guiding conduct or action in a given type ofsituation.
default rule. A legal principle that fills a gap in a
contract in the absence ofan applicable express pro
vision but remains subject to a contrary agreement.
Cf. GAP-FILLER. [Cases: Contracts C=> 168.]
general rule. A rule applicable to a class of cases or
circumstances. mandatory rule. A legal rule that is not subject to a
contrary agreement. For example, the UCC obli
gation of good faith and fair dealing cannot be dis
claimed.
peremptory rule. A court order that must be obeyed
without an opportunity to respond . No objections
may be lodged or arguments made.
special rule. See SPECIAL RULE (1).
2. A regulation governing a court's or an agency's
internal procedures. [Cases: Administrative Law and
Procedure C=>381; Courts C=>85; Federal Civil Pro
cedure C=>21.] 3. Parliamentary law. A procedural
rule (sense 1) for the orderly conduct of business in
a deliberative assembly. -Also termed rule oforder
(often pl.).
Cordon rule. See CORDON RULE.
joint rule. A rule adopted by both houses of a bicam
erallegislature for the conduct of business or rela
tions between them, such as when they meet in joint
session, or for other matters in which they share an
interest. See joint session under SESSION (1). [Cases:
States C=>35.]
ordinary standing rule. See standing rule (1).
Ramseyer rule. See RAMSEYER RULE.
special rule. 1. See SPECIAL RULE (2). 2. See SPECIAL
RULE (3).
standing rule. 1. A rule that relates to an organization's
administration or operation rather than to its proce
dure in meetings. For example, a rule about the time
and place of regular meetings, or about a commit
tee's jurisdiction, is a standing rule. -Also termed
ordinary standing rule. 2. A special rule of continu
ing force . Many conventions and other delibera
tive assemblies collect both their administrative and
procedural rules into a set titled "standing rules." See
special rule (1).
rule, vb. (13c) 1. To command or require; to exert control
<the dictator ruled the country>. 2. To decide a legal
point <the court ruled on the issue ofadmissibility>.
rule, the. An evidentiary and procedural rule by which
all witnesses are excluded from the courtroom while
another witness is testifying <invoking "the rule"> .
The phrase "the rule" is used chiefly in the American
South and Southwest, but it is a common practice to
exclude witnesses before they testify. [Cases: Criminal
Law C=>665; Federal Civil Procedure C=>2012; Trial
C=>41.]
rule against vitiation ofa claim element. See ALL-ELE
MENTS RULE.
Rule in Queen Caroline's Case. The common-law princi
ple that a witness who is impeached with a prior incon
sistent statement on cross-examination must be given
the opportunity to admit, explain, repudiate, or deny
it before the statement is admissible into evidence . In
American law, Federal Rule ofEvidence 613 embodies
this principle, with some variations. The original rule
1447
is found in Queen Caroline's Case, (1820) 129 Eng. Rep.
976. [Cases: Witnesses C=>388(2.1).]
Rule 1.53 application. See continued-prosecution appli
cation under PATENT APPLICATION.
Rule lOb-5. The SEC rule that prohibits deceptive or
manipulative practices (such as material misrepresen
tations or omissions) in the buying or selling ofsecuri
ties. Also termed antifraud rule. [Cases: Securities
Regulation C=>60.1O-60.70.]
Rule 11. Civil procedure. 1. In federal practice, the proce
dural rule requiring the attorney ofrecord or the party
(if not represented by an attorney) to sign all pleadings,
motions, and other papers filed with the court and
by this signing -to represent that the paper is filed in
good faith after an inquiry that is reasonable under the
circumstances . This rule provides for the imposition
ofsanctions, upon a party's or the court's own motion,
ifan attorney or party violates the conditions stated in
the rule. Fed. R. Civ. P. 11. [Cases: Compromise and
Settlement Federal Civil Procedure C=>27S0
2831; Judgment 2. In Texas practice, the pro
cedural rule requiring agreements between attorneys
or parties concerning a pending suit to be in writing,
signed, and filed in the court's record or made on the
record in open court. Tex. R. Civ. P. 11. [Cases: Com
promise and Settlement
Rule 109 statement. Patents. A statement by a patent
examiner ofthe reasons for allowing a patent claim.
An examiner may file a Rule 109 statement at any
time if it appears that the record does not adequately
reflect the reasons for allowance. It should state how
the claim differs from prior art and why that difference
is nonobvious. PTO Reg. 1.109; 37 CFR 1.104(e).
Also termed Reasonsfor Allowance. [Cases: Patents C=>
104.J
Rule 116 amendment. See amendment after final action
under PATENT-APPLICATION AMENDMENT.
Rule 312 amendment. See amendment after allowa/1ce
under PATENT-APPLICATION AMENDMENT.
rule absolute. See decree absolute under DECREE.
rule against accumulations. See ACCUMULATIONS, RULE
AGAINST.
rule against inalienability. The principle that property
must not be made nontransferable. - Also termed rule
against trusts ofperpetual duration. Cf. RULE AGAINST
PERPETUITIES. [Cases: Property C=> 11.]
rule against perpetuities. (sometimes cap.) (lSc)
Property. The common-law rule prohibiting a grant
of an estate unless the interest must vest, |
sometimes cap.) (lSc)
Property. The common-law rule prohibiting a grant
of an estate unless the interest must vest, if at all, no
later than 21 years (plus a period ofgestation to cover
a posthumous birth) after the death of some person
alive when the interest was created . The purpose of
the rule was to limit the time that title to property could
be suspended out of commerce because there was no
owner who had title to the property and who could sell
it or exercise other aspects of ownership. Ifthe terms
of the contract or gift exceeded the time limits of the Rule in Wild's Case
rule, the gift or transaction was void. See MEASURING
LIFE. Cf. ACCUMULATIONS, RULE AGAINST. [Cases: Per
petuities
"The true form of the Rule against Perpetuities is believed
to be this: -... NO INTEREST SUBJECT TO A CONDITION PRECEDENT IS GOOD,
UNLESS THE CONOITION MUST BE FULFILLED, IF AT ALL, WITHIN TWENTY-ONE
YEARS AFTER 50..E liFE IN BEING AT THE CREATION OF THE INTEREST." John
Chipman Gray, The Rule Against Perpetuities 144 (1886).
"Another scholar who spent a substantial part of an
academic lifetime attempting to bring order and add
sense to the rule [against perpetuities], W. Barton leach,
described the rule as a 'technicality-ridden legal night
mare' and a 'dangerous instrumentality in the hands of
most members of the bar.'" Thomas F. Bergin & Paul G.
Haskell, Preface to Estates in Land and Future Interests 178
(2d ed. 1984) (quoting leach, Perpetuities Legislation, Mas
sachusetts Style, 67 Harv. l. Rev. 1349 (1954).
'The Rule Against Perpetuities is a rule against remoteness
of vesting. A contingent future interest is invalid under the
orthodox rule if, at the time of the creation of the interest,
the circumstances are such that the contingency may go
unresolved for too long a time. The Rule is not concerned
with the duration of interests, that is, the length of time
that they endure. It is not a rule against suspension of
the power of alienation, nor a rule against restraints on
alienation. It is not a rule that directly limits the duration of
trusts .... The orthodox rule is satisfied if all contingent
future interests are so created that they must vest, if they
vest at all, within the perpetuities period." Robert J. lynn,
The Modern Rule Against Perpetuities 9 (1966).
"The common law Rule Against Perpetuities (modified by
statute in some states) provides that no interest is valid
unless it must vest within 21 years after lives in being
when the interest was created. The rule is something of a
misnomer. It does not limit the duration of a condition in a
bequest, but rather limits the testator's power to earmark
gifts for remote descendants." Richard A. Posner, Economic
Analysis of Law 18.7, at 394 (2d ed. 1977).
rule against trusts of perpetual duration. See RULE
AGAINST INALIENABILITY.
rule day. See return day (3) under DAY.
rule in Heydon's case. See MISCHIEF RULE.
Rule in Shelley's Case. (1Sc) Property. The rule that
if -in a single grant a freehold estate is given to a
person and a remainder is given to the person's heirs,
the remainder belongs to the named person and not
the heirs, so that the person is held to have a fee simple
absolute. The rule, which dates from the 14th century
but draws its name from the famous 16th-century case,
has been abolished in most states. Wolfe v. Shelley, 76
Eng. Rep. 206 (K.B. 1581). [Cases: Estates in Property
C'='S.J
"[TJhe rule in Shelley's Case, the Don Quixote of the law,
which, like the last knight errant of chivalry, has long
survived every cause that gave it birth and now wanders
aimlessly through the reports, still vigorous, but equally
useless and dangerous." Stamper v. Stamper, 28 S.E. 20,
22 (N.C. 1897).
Rule in Wild's Case. (1842) Property. The rule constru
ing a grant to "A and h5 children" as a fee tail if h8
children do not exist at the effective date ofthe instru
ment, and as a jOint tenancy if Ns children do exist at
the effective date . The rule has been abolished along
with the fee tail in most states.
1448 rulemaking
rulemaking, n. (1926) The process used by an admin
istrative agency to formulate, amend, or repeal a rule
or regulation. -Also termed administrative rulemak
ing. Cf. ADMINISTRATIVE ADJUDICATION; INFORMAL
AGENCY ACTION. [Cases: Administrative Law and Pro
cedure C=>3S1-427.] -rulemaking, ad}.
formal rulemaking. (1960) Agency rulemaking that,
when required by statute or the agency's discretion,
must be on the record after an opportunity for an
agency hearing, and must comply with certain pro
cedures, such as allowing the submission ofevidence
and the cross-examination ofwitnesses. Cf. informal
rulemaking. [Cases: Administrative Law and Proce
dure C-=::>3S1-427.]
informal rulemaking. (196S) Agency rulemaking in
which the agency publishes a proposed regulation
and receives public comments on the regulation,
after which the regulation can take effect without
the necessity of a formal hearing on the record.
Informal rulemaking is the most common proce
dure followed by an agency in issuing its substantive
rules. -Also termed notice-and-comment rulemak
ing. See NOTICE-AND-COMMENT PERIOD. Cf. formal
rulemaking. [Cases: Administrative Law and Proce
dure C=>3S1-427.]
rule nisi. See decree nisi under DECREE.
rule of capture. 1. The doctrine that if the donee of a
general power of appointment manifests an intent to
assume control ofthe property for all purposes and not
just for the purpose of appointing it to someone, the
donee captures the property and the property goes to
the donee's estate . One common way for the donee
to show an intent to assume control for all purposes
is to include provisions in his or her will blending the
appointing property with the donee's own property.
2. Property. The principle that wild animals belong to
the person who captures them, regardless of whether
they were originally on another person's land. [Cases:
Animals C=> 1.5(3).] 3. Water law. The principle that a
surface landowner can extract and appropriate all the
groundwater beneath the land by drilling or pumping,
even ifdoing so drains away groundwaters to the point
ofdrying up springs and wells from which other land
owners benefit. This doctrine has been widely abol
ished or limited by legislation. [Cases: Waters and
Water Courses C=> 101.] 4. Oil & gas. A fundamental
principle of oil-and-gas law holding that there is no
liability for drainage of oil and gas from under the
lands of another so long as there has been no trespass
and all relevant statutes and regulations have been
observed. -Also termed doctrine ofcapture; law of
capture. Cf. AD COELUM DOCTRINE. [Cases: Mines and
Minerals C=>47.]
rule ofcompleteness. See RULE OF OPTIONAL COMPLETE
NESS.
rule ofconstruction. See canon ofconstruction under
CANON (1). rule ofcourt. (17c) A rule governing the practice or pro
cedure in a given court <federal rules of court>. See
LOCAL RULE. [Cases: Courts C=>S5; Federal Civil Pro
cedure C=>21.]
rule of decision. (1Sc) A rule, statute, body of law, or
prior decision that provides the basis for deciding or
adjudicating a case. [Cases: Courts C=>SS.]
rule ofdoubt. 1. Copyright. The doctrine that unreadable
or incomprehensible identifying material deposited
with the U.S. Copyright Office may not be protected
under copyright law because it cannot easily be
examined to determine whether it qualifies . This
rule usu. applies to computer object code . Unlike a
Certificate of Registration, a filing under the rule of
doubt is not prima facie evidence ofa valid copyright.
[Cases: Copyrights and Intellectual Property C=>4.] 2.
Patents. An abandoned judicial doctrine holding that
when there is doubt whether an invention is patentable,
the patent should be issued so that the inventor can test
its validity in court.
rule ofevidence. See EVIDENCE (4).
rule of four. (1949) The convention that for certiorari
to be granted by the U.S. Supreme Court, four justices
must vote in favor ofthe grant. See CERTIORARI. [Cases:
Federal Courts C=>452, 509.]
rule ofinconvenience. (1934) The principle ofstatutory
interpretation holding that a court should not construe
a statute in a way that will jeopardize an important
public interest or produce a serious hardship for
anyone, unless that interpretation is unavoidable.
Often shortened to inconvenience. [Cases: Statutes C=>
ISI(2).]
rule of interpretation. See canon ofconstruction under
CANON (1).
rule of justice. A jurisprudential principle that deter
mines the sphere ofindividual liberty in the pursuit of
individual welfare, so as to confine that liberty within
limits that are consistent with the general welfare of
humankind.
rule oflaw. (1Sc) 1. A substantive legal principle <under
the rule of law known as respondeat superior, the
employer is answerable for all wrongs committed by
an employee in the course ofthe employment>. 2. The
supremacy of regular as opposed to arbitrary power
<citizens must respect the rule oflaw>. - Also termed
supremacy oflaw. 3. The doctrine that every person
is subject to the ordinary law within the jurisdiction
<all persons within the United States are within the
American rule of law>. 4. The doctrine that general
constitutional principles are the result ofjudicial deci
sions determining the rights of private individuals
in the courts <under the rule oflaw, Supreme Court
caselaw makes up the bulk of what we call "constitu
tionallaw">. 5. Loosely, a legal ruling; a ruling on a
point of law <the ratio decidendi of a case is any rule
of law reached by the judge as a necessary step in the
decision>. [Cases: Courts C=>S7.]
1449 rule of the last antecedent
rule oflenity (len-;)-tee). The judicial doctrine holding
that a court, in construing an ambiguous criminal
statute that sets out multiple or inconsistent punish
ments, should resolve the ambiguity in favor of the
more lenient punishment. Also termed lenity rule.
[Cases: Statutes (;::=>241(1).J
rule of marshaling assets. An equitable doctrine that
requires a senior creditor, having two or more funds to
satisfy its debt, to first dispose of the fund not available
to a junior creditor. -It prevents the inequity that would
result if the senior creditor could choose to satisfy its
debt out of the only fund available to the junior creditor
and thereby exclude the junior creditor from any sat
isfaction. -Also termed marshaling doctrine; rule
ofmarshaling securities; rule ofmarshaling remedies.
[Cases: Debtor and Creditor (;::=> 13.]
rule ofmarshaling liens. See INVERSE-ORDER-OF-ALIEN
ATION DOCTRINE.
rule of marshaling remedies. See RULE OF MARSHAL
ING ASSETS.
rule of marshaling securities. See RULE OF MARSHAL
INGASSETS.
rule ofnecessity. A rule requiring a judge or other official
to hear a case, despite bias or conflict ofinterest, when
disqualification would result in the lack ofany compe
tent court or tribunaL -Often shortened to necessity.
[Cases: Judges ~J39.1
rule ofoperation. Patents. A method of using a machine
to produce its intended useful result. - A rule of opera
tion and moving parts generally distinguish a machine
from an article of manufacture.
rule of optional completeness. (1983) The evidentiary
rule providing that when a party introduces part of
a writing or an utterance at trial, the opposing party
may require that the remainder of the passage be read
to establish the full context. -The rule has limitations:
first, no utterance can be received ifit is irrelevant, and
second, the remainder of the utterance must explain
the first part. In many jurisdictions, the rule applies to
conversations, to an opponent's admissions, to confes
sions, and to all other types ofwritings -even account
books. But the Federal Rules of Evidence limit the rule
to writings and recorded statements. Fed. R. Evid. 106.
In most jurisdictions, including federal, the remain
der is admissible unless its admission would be unfair
or misleading. Also termed rule ofcompleteness;
doctrine ofcompleteness; doctrine ofoptional complete
ness; completeness doctrine; optional-completeness rule;
optional-completeness doctrine. [Cases: Criminal Law
C=396(2); Evidence \55,383(12).]
rule of order. See RULE (3).
rule of rank. A doctrine of statutorv construction
holding that a statute dealing with th'ings or persons
of an inferior rank cannot by any general words be
extended to things or persons of a superior rank.
Blackstone gives the example ofa statute dealing with
deans, prebendaries, parsons, vicars, and others having
spiritual promotion. According to Blackstone, this statute is held not to extend to bishops, even though
they have spiritual promotion, because deans are the
highest persons named, and bishops are of a higher
order. Cf. EJUSDEM GENERIS; EXPRESSIO UNIUS EST
EXCLUSIO ALTERIUS; NOSCITUR A SOCIIS.
rule ofreason. Antitrust. The judicial doctrine holding |
ALTERIUS; NOSCITUR A SOCIIS.
rule ofreason. Antitrust. The judicial doctrine holding
that a trade practice violates t he Sherman Act only if the
practice is an unreasonable restraint of trade, based on
the totality ofeconomic circumstances. See SHERMAN
ANTITRUST ACT; RESTRAINT OF TRADE. Cf. PER SE RULE.
[Cases: Antitrust and Trade Regulation C=:)535.]
rule of recognition. In the legal theory of H.L.A. Hart,
a legal system's fundamental rule, by which all other
rules are identified and understood . In The Concept of
Law (1961), Hart contends that a society's legal system is
centered on rules. There are primary rules of obligation,
which prescribe how a person should act in SOCiety,
and secondary rules, by which the primary rules are
created, identified, changed, and understood. A "rule of
recognition" is a secondary rule, and serves to instruct
citizens on when a pronouncement or societal principle
constitutes a rule of obligation. Sometimes short
ened to recognition. Cf. RULES OF CHANGE; basic norm
under NORM.
"This rule [the rule of recognition] may amount to no
more than specifying a list of primary rules carved on a
public monument. Or it may actually be a complete set
of rules ...." Martin P. Golding, Philosophy of Law 44
(1975).
rule of right. (18c) lhe source of a right; the rule that
gives rise to a right.
rule ofn. A method for determining how many years it
takes to double money invested at a compound interest
rate. For example, at a compound rate of6%, it takes
12 years (72 divided by 6) for principal to double.
rule of 78. A method for computing the amount of
interest that a borrower saves by paying off a loan early,
when the interest payments are higher at the begin
ning of the loan period . For example, to determine
how much interest is saved by prepaying a 12-month
loan after 6 months, divide the sum of the digits for the
remaining six payments (21) by the sum of the digits
for all twelve payments (78) and multiply that percent
age by the total interest. Also termed rule ofthe sum
ofthe digits.
rule of the floating subtrahend. The common-law
doctrine that a plaintiff whose damage was not caused
entirely by the defendant must prove the amount of
damage that is not attributable to the defendant (the
subtrahend) or else recover nothing. -The reasoning
behind the rule is that damage is an essential element
ofa tort claim, and the plaintiffhas the burden of proof.
If proved, the subtrahend is subtracted from the total
damage to determine the plaintiffs recovery.
rule ofthe last antecedent. (1919) An interpretative prin
ciple by which a court determines that qualifying words
or phrases modify the words or phrases immediately
preceding them and not words or phrases more remote,
unless the extension is necessary from the context or
1450 rule of the shorter term
the spirit ofthe entire writing . For example, an appli
cation of this rule might mean that, in the phrase Texas
courts, New Mexico courts, and New York courts in the
federal system, the words in the federal system might
be held to modify only New York courts and not Texas
courts or New Mexico courts. -Also termed doctrine of
the last antecedent; doctrine of the last preceding ante
cedent. [Cases: Statutes (,'=' 196.]
rule of the shorter term. Copyright. A provision of
the Universal Copyright Convention stating that no
member country is required to extend a longer term of
protection than the work receives in the country where
it is first published. Also termed shorter-term rule.
rule of the sum of the digits. See RULE OF 78.
rule of universal inheritance. See UNIVERSAL-INHER
ITANCE RULE.
rules committee. See COMMITTEE.
rules ofchange. In the legal theory ofH.L.A. Hart, the
fundamental rules by which a legal system's other rules
are altered . In Hart's theory, a legal system's primary
rules are subject to identification and change by sec
ondary rules. Among those rules are "rules ofchange,"
which prescribe how laws are altered or repealed. Cf.
RULE OF RECOGNITION.
rules ofcourt. See COURT RULES.
Rules of Decision Act. A federal statute (28 USCA
1652) providing that a federal court, when exercising
diversity jurisdiction, must apply the substantive law of
the state in which the court sits. See diversity jurisdic
tion under JURISDICTION. [Cases: Federal Courts
373.]
rules ofevidence. See EVIDENCE (4); FEDERAL RULES OF
EVIDENCE.
rules ofnavigation. Maritime law. The principles and
regulations that govern the steering and sailing of
vessels to avoid collisions . Examples include the
International Rules governing conduct on the high
seas and the Inland Rules governing navigation on
the inland waters ofthe United States and U.S. vessels
on the Canadian waters of the Great Lakes. 33 USCA
1602-1608,2001-2073. [Cases: Collision
rules oforder. See RULE (3).
rules ofprocedure. See PROCEDURE (2).
rule to show cause.!. See SHOW-CAUSE PROCEEDING. 2.
See show-cause order under ORDER (2).
ruling, n. (16c) 1. The outcome of a court's decision either
on some point oflaw or on the case as a whole. Also
termed legal ruling. Cf. JUDGMENT (1); OPINION (1).
[Cases: Courts C:";)88.]
"A distinction is sometimes made between rules and
rulings. Whether or not a formal distinction is declared,
in common usage 'legal ruling' (or simply 'ruling') is a
term ordinarily used to signify the outcome of applying
a legal test when that outcome is one of relatively narrow
impact. The immediate effect is to decide an issue in a
single case. This meaning contrasts, for example, with the
usual meaning of 'legal rule' (or simply 'rule'). The term
'rule' ordinarily refers to a legal proposition of general application. A 'ruling' may have force as precedent, but
ordinarily it has that force because the conclusion it
expresses (for example, 'objection sustained') explicitly
depends upon and implicitly reiterates a 'rule' a legal
proposition of more general application ...." Robert E.
Keeton, Judging 67-68 (1990).
2. Parliamentary law. The chair's decision on a point
oforder. rule, vb.
ruling case. See LEADING CASE (3).
ruling letter. See DETERMINATION LETTER.
RULPA. abbr. Revised Uniform Limited Partnership
Act. See UNIFORM LIMITED PARTNERSHIP ACT.
run, vb. (bef. 12c) 1. To expire after a prescribed period
<the statute of limitations had run, so the plaintiff's
lawsuit was barred>. 2. To accompany a conveyance
or assignment of (land) <the covenant runs with the
land>. [Cases: Covenants C::'53-84.] 3. To apply <the
injunction runs against only one of the parties in the
dispute>.
runaway. (16c) 1. A person who is fleeing or has escaped
from custody, captivity, restraint, or control; esp., a
minor who has voluntarily left home without permis
sion and with no intent to return. Cg. THROWAWAY.
[Cases: Infants 151.] 2. An animal or thing that is
out ofcontrol or has escaped from confinement. [Cases:
Animals run away, vb.
runaway grand jury. See GRAND JURY.
runner. (I8c) 1. A law-office employee who delivers
papers between offices and files papers in court. 2. One
who solicits personal-injury cases for a lawyer. Also
termed capper. 3. A smuggler. 4. BrE. Slang. An escape;
flight (from something); a voluntary disappearance.
running account. See ACCOUNT.
running description. See METES AND BOUNDS.
running-down clause. Marine insurance. A provision for
the hull insurer's paying a proportion of the damages
sustained the other vessel in a collision. [Cases:
Insurance
running objection. See continuing objection under
OBJECTION.
running policy. See floating policy under INSURANCE
POLICY.
running with the land. Property law. See covenant
running with the land under COVENANT (4).
runoff election. See ELECTION (3).
Rural Business-Cooperative Service. An agency in the
U.S. Department of Agriculture responsible for making
loans and grants to public agencies and private parties
to develop rural businesses. Abbr. RBS. [Cases:
United States
Rural Electrification Administration. A former agency
in the U.S. Department of Agriculture responsible for
making or guaranteeing loans to rural electric and
telephone utilities . Its duties were transferred to
the Rural Utilities Service in 1994. -Abbr. REA. See
1451
RURAL UTILITIES SERVICE. [Cases: United States C=>
53(7).]
Rural Housing Service. An agency in the U.S. Depart
ment ofAgriculture responsible for making or guaran
teeing loans for rural housing. Abbr. RHS. [Cases:
United States C=>53(7).]
rural servitude. See SERVITUDE (2).
Rural Utilities Service. An agency in the U.S. Depart
ment of Agriculture responsible for making or guar
anteeing loans to rural electric and telecommunication
utilities. e The agency is the successor to the Rural
Electrification Administration. Abbr. RUS. [Cases:
United States (:::::>53(7).]
RUS. abbr. RURAL UTILITIES SERVICE.
rustica et urbana (ras-ti-k" et "r-bay-n,,). [Latin) Hist.
Rural and urban. The phrase appeared in reference
to servitudes. See SERVITUS. rusticum jus
rusticum forum (ras-ti-bm for-dm). Any nonjudicial
body (such as an arbitral panel or workers' -compensa
tion review board) that has authority to make a binding
decision. Also termed poor man's court.
rusticum judicium (ras-ti-k"m joo-dish-ee-"m). 1. The
division of liability so that one party (usu. a defen
dant) must pay only part (usu. half) ofanother party's
(usu. the plaintiff's) loss . Rusticum judicium origi
nated in 17th century maritime law as a means ofeffi
ciently resolVing collision cases in which both ships
were at fault. In maritime law, damages were equally
divided. Also termed rusticum jus. Cf. comparative
negligence under NEGLIGENCE. 2. Rare. Rough justice; a
rustic tribunal. e1his is a literal translation ofthe term,
used colloquially rather than accurately. -Sometimes
misspelled rusticum judicum.
rusticum jus (ras-ti-bm j"s). Maritime law. See
RUSTICUM JUDICIUM (1).
s
s. abbr. 1. STATUTE. 2. SECTION (1). 3. (usu. cap.)
SE:'-<ATE.
S-1. An SEC form that a company usu. must file before
listing and trading its securities on a national exchange.
Used primarily by first-time issuers ofsecurities, this
form is the basic, full-length registration statement that
requires a great deal of information about the issuer
and the securities being sold. The SEC has also adopted
modified forms for smaller enterprises, such as Forms
S8-] and S8-2. -Also termed Form 8-l.
Sabbath-breaking. 1he violation of laws or rules on
observing the Sabbath; esp., the violation of a blue
law.
Sabbath law. See BLUE LAW.
sabotage (sab-a-tahzh), n. (1910) 1. The destruction,
damage, or knowingly defective production of mate
rials, premises, or utilities used for national defense
or for war. 18 USCA 2151 et seq. [Cases: War and
National Emergency 2. The willful and mali
cious destruction ofan employer's property or interfer
ence with an employer's normal operations, esp. during
a labor dispute. -sabotage, vb.
saboteur (sab-<'l-tar), n. (1921) A person who commits
sabotage.
sac, n. See soc.
sacer (sas-ar), adj. [Latin "sacred; forfeited to a god"]
Roman law. (Of an outlaw or a wrongdoer) punished
by being placed outside the law's protection. See CON
SECRATIO CAPITIS; OUTLAWRY.
sachbaro. See SAGIBARO.
Sache (zahk-d). [German] A thing; an article or matter.
SeeTHING.
sacramentalis (sak-r<'l-men-tay-leez), n. pI. [Law Latin fr.
Latin sacramentum "an oath- taker"] Hist. A compurga
tor; one who takes an oath swearing to a defendant's
innocence. Pl. sacramentales.
sacramento (sak-ra-men-toh), n. [Latin "by oath"]
Roman law. A legal action in the earliest form ofcivil
procedure in which, at its commencement, each ofthe
contending parties deposited or gave security for a
certain sum (called the sacramentum), which the loser
forfeited to the public. Also termed legis actio sac
ramento. See LEGIS ACTIO.
sacramentum (sak-r<'l-men-t<'lm), n. [Latin "an oath"]
Roman law. 1. SACRAMENTO. 2. An oath of allegiance
given by a soldier upon enlistment.
sacramentum decision is (sak-ra-men-t<'lm di-sizh
ee-oh-nis). (Latin "the oath of decision"] Civil law.
The offer by one party to accept the opposing party's oath as |
). (Latin "the oath of decision"] Civil law.
The offer by one party to accept the opposing party's oath as decisive of the issues involved in a lawsuit. PI.
sacramenta decision is.
''The defendant or person accused was ... to make oath
of his own innocence, and to produce a certain number of
compurgators, who swore they believed his oath. Somewhat
Similar also to this is the sacramentum decisianis, or the
voluntary and decisive oath of the civil law; where one of
the parties to the suit, not being able to prove his charge,
offers to refer the decision of the cause to the oath of his
adversary: which the adversary was bound to accept, or
tender the same proposal back again; otherwise the whole
was taken as confessed by him." 3 William Blackstone, Com
mentaries on the Laws offngland 342 (1768).
sacramentum fidelitatis (sak-ra-men-tdm fi-del-d-tay
tis). [Law Latin] Hist. The oath of fidelity, given by a
vassal to a lord.
sacrilege (sak-ra-lij). 1. The act or an instance of des
ecrating or profaning a sacred thing. 2. Hist. Larceny
ofsacred objects, as from a church.
sacrilegium (sak-r<'l-lee-jee-dm), n. (Latin fro sacer
"sacred" + legere "to steal"] Roman law. 1. The theft of
a sacred thing, usu. a capital offense. See CAPITALIS. 2.
Violation ofan imperial law.
"In the later Empire the conception of sacrilegium was
somewhat distorted and those 'who through ignorance
or negligence confound, violate and offend the sanctity
of a divine law' ... were considered gUilty of sacrilegium.
'Divine' is here used in the sense of imperial, issued by
the emperor ... , Thus sacrilegium and sacriJegus became
rather general terms applied to the neglect or violation of
imperial orders or enactments." Adolf Berger, Encyclopedic
Dictionary ofRoman Law 689 (1953).
sacrilegus (sd-kril-<'l-g<'ls), adj. & n. (Latin "sacrilegious"]
Roman law. (A person) guilty of sacrilegium. See SAC
RILEGIUM.
sacristan (sak-ri-st<'ln). [Latin] Hist. A caretaker of a
church; a sexton ofa church.
sacristy (sak-ri-stee). See VESTRY (1).
sadaq. See MAHR.
saemend (see-mand). [Old English] Hist. An arbitrator;
an umpire.
SAET. abbr. SUBSTANCE-ABUSE EVALUATION AND TREAT
MENT.
saevitia (si-vish-ee-a). [Latin fro saevus "cruel"] Hist.
Cruelty in a marriage, as a result ofwhich cohabitation
is dangerous enough to justify a decree of separation.
safe, adj. 1. Not exposed to danger; not causing danger
<driving at a safe limit ofspeed>. 2. Unlikely to be over
turned or proved wrong.
safe-berth clause. Maritime law. A provision in a voyage
or time charterparty obligating the charterer to choose
a berth for loading and unloading the chartered ship
where the ship will be safe from damage . The ship's
master can refuse to enter the berth without breaching
1453 Saint Lawrence Seaway Development Corporation
the charter. But if the master reasonably enters the
berth and the ship is damaged, the charterer is liable.
Cf. SAFE-PORT CLAUSE. [Cases: Shipping~54.]
safe blower. One who uses explosives to open a safe,
esp. for the purpose of stealing the contents. Cf. SAFE
CRACKER.
safe breaker. See SAFE CRACKER.
safe conduct. Int'llaw. 1. A privilege granted by a bel
ligerent allowing an enemy, a neutral, or some other
person to travel within or through a deSignated area
for a specified purpose. 2. A document conveying this
privilege. Sometimes written safe-conduct. -Also
termed safeguard; passport.
"Passports and safeguards, or safe conducts, are letters of
protection, with or without an escort, by which the person
of an enemy is rendered inviolable. These may be given
in order to carryon the peculiar commerce of war, or for
reasons which have no relation to it, which terminate in the
person himself." Theodore D. Woolsey, Introduction to the
Study ofInternational Law 155, at 265 (5th ed. 1878).
"Safe-conduct .... The grantee is inviolable so long as he
complies with the conditions imposed on him or neces
sitated by the Circumstances of the case. Unless stated,
a safe-conduct does not cover goods or luggage. They
may be given also for ships and for goods. To be effective
under international law the grant must have been arranged
between belligerents." David M. Walker, The Oxford Com
panion to Law 1098 (1980).
safe cracker. One who breaks into a safe, esp. for the
purpose of stealing the contents. Also termed safe
breaker. Cf. SAFE BLOWER.
safe-deposit box. (1874) A lockbox stored in a bank's
vault to secure a customer's valuables. _ It usu. takes
two keys (one held by the bank and one held by the
customer) to open the box. Often shortened to
deposit box. Also termed safety-deposit box. [Cases:
Warehousemen C-~38.]
safe-deposit company. See DEPOSITARY (1).
safe harbor. (1960) 1. An area or means ofprotection. 2.
A provision (as in a statute or regulation) that affords
protection from liability or penalty. _ SEC regula
tions, for example, provide a safe harbor for an issuer's
business forecasts that are made in good faith. -Also
termed safe-harbor clause; safe-harbor provision.
[Cases: Securities Regulation ~60.27(5).]
safe-haven law. Family law. A statute that protects a
parent who abandons a baby at a deSignated place such
as a hospital, a physician's office, or a fire station, where
it can receive emergency medical assistance as needed.
-The law typically stipulates that a parent who leaves
a baby at such a place will not be publicly identified or
prosecuted. Such laws have been enacted in many states
in response to a perceived increase in incidents ofchild
abandonment. Also termed Baby Moses law.
safe house. A residence where people live under pro
tection, usu. in anonymity. -Safe houses are operated
tor a range of purposes, both legal and illegal. Shelters
for abused spouses and runaway children are safe
houses. Law-enforcement agencies keep safe houses
for undercover operations and to protect witnesses who have been threatened. Lawbreakers use them to shield
criminal activity such as drug manufacturing.
safekeeping. 1. The act ofprotecting something in one's
custody. 2. Under the Securities Investors Protection
Act, the holding of a security on behalf of the investor
or broker that has paid for it. 15 USCA 78111(2). [Cases:
Securities Regulation (,":::;) 185.13-185.16_]
safe-pledge. See PLEDGE (5).
safe-port clause. Maritime law. A provision in a voyage
or time charterparty obligating the charterer to choose
a port where the ship will be safe from damage. -The
ship's master can refuse to enter the port without
breaching the charter. But if the master reasonably
enters the port and the ship is damaged, the charterer
is liable. Cf. SAPE-BERTH CLAUSE. [Cases: Shipping
39,55.]
safe-storage statute. A law that prohibits persons from
leaving firearms unattended in places where children
may gain access to them. -Also termed child-access
prevention statute. [Cases: Weapons (>4.]
Safety Appliance Act. A federal law regulating the safety
ofequipment used by railroads in interstate commerce.
49 USCA 20301 et seq. [Cases: Labor and Employ
ment <:>2862-2864; Railroads (;::=;'229.]
safety-deposit box. See SAFE-DEPOSIT BOX.
safety engineering. The inspection and study of poten
tially dangerous conditions, usu. in an industrial
environment, so that precautionary measures can be
taken.
safety officer. See OFFICER (1).
safe workplace. A place of employment in which all
dangers that should reasonably be removed have been
removed; a place ofemployment that is reasonably safe
given the nature of the work performed. See occu
PATIONAL SAFETY AND HEALTH ADMINISTRATION.
[Cases: Labor and Employment ~2832; Negligence
c:.>1204(4).]
sagibaro (sag-i}-bar-oh), n. [Old English] Hist. A deter
miner of disputes; a judge. -Also termed sachbaro
(sak-bar-oh).
said, adj. (Be) Aforesaid; above-mentioned. _ The adjec
tive said is obsolescent in legal drafting, its last bastion
being patent claims. But even in that context the word is
giving way to the ordinary word the, which ifproperly
used is equally precise. See AFORESAID.
"The word 'said' is used by many practitioners rather
than 'the' to refer back to previously recited elements,
sometimes to a previously cited anything. This practice
is unobjectionable, although perhaps overly legalistic. If
'saids' or 'thes' are used, one should be consistent in the
usage and not alternate between those words in repetitions
of the same element or among different elements." Robert
C. Faber, Landis on Mechanics of Patent Claim Drafting
23, at SO (3d ed. 1990).
sailor's will. See soldier's will under WILL.
Saint Lawrence Seaway Development Corporation. A
wholly-owned corporation in the U.S. Department of
Transportation responsible for developing, operating,
1454 sake and sake
and maintaining a part of the St. Lawrence Seaway
from Montreal to Lake Erie. -It charges tolls at rates
negotiated with the St. Lawrence Seaway Authority of
Canada. Abbr. SLSDC.
sake and soke (sayk Jsohk). Hist. A lord's right to hold
court and compel attendance. Also spelled sak and
soc (sak / sok). See soc.
salable (say-Ia-bal or sayl-<l-b<ll), adj. (l6c) Fit for sale
in the usual course of trade at the usual selling price;
MERCHANTABLE. [Cases: Sales (;::::>272.) -salability
(say-Ia-bil-a-tee or sayl-<l-bil-<l-tee), n.
salable value. Seefair market value under VALUE (2).
salarium (s<l-lair-ee-am), n. [Latin "salt money") 1.
Roman law. An allowance, esp. for living expenses,
given to persons in noble professions (such as teachers
or doctors) who were not allowed to sue for fees. 2.
Roman law. Wages for persons engaged in military
service on an emergency basis. _ The regular soldier's
pay is a stipendium. 3. Hist. The rent or profits ofa hall
or house.
salary. (l3c) An agreed compensation for services -esp.
professional or semiprofessional services -usu. paid
at regular intervals on a yearly basis, as distinguished
from an hourly basis. _ Salaried positions are usu.
exempt from the requirements ofthe Fair Labor Stan
dards Act (on overtime and the like) but are subject to
state regulation. Cf. WAGE. [Cases: Labor and Employ
ment C:::> 168, 2264.]
accrued salary. A salary that has been earned but not
yet paid.
sale, n. (bef. 12c) 1. The transfer of property or title for a
price. See UCC 2-106(1). [Cases: Sales (::;;:'1; Vendor
and Purchaser (:::) 1.J 2. The agreement by which such a
transfer takes place. -The four elements are (1) parties
competent to contract, (2) mutual assent, (3) a thing
capable ofbeing transferred, and (4) a price in money
paid or promised.
absolute sale. A sale in which possession and title to
the property pass to the buyer immediately upon the
completion ofthe bargain. Cf. conditional sale. [Cases:
Sales (;::::>454; Vendor and Purchaser
approval sale. See sale on approval.
auction sale. See AUCTION.
average gross sales. The amount of total sales divided
by the number of sales transactions in a specific
period.
bona fide sale. A sale made by a seller in good faith, for
valuable consideration, and without notice of a defect
in title or any other reason not to hold the sale. [Cases:
Vendor and Purchaser
bootstrap sale. 1. A sale in which the purchase price
is financed by earnings and profits of the thing sold;
esp., a leveraged buyout. See BUYOUT. 2. A seller's tax
saving conversion of a business's ordinary income
into a capital gain from the sale of corporate stock.
bulk sale. See BULK SALE. cash-against-documents sale. See documentary sale.
cash sale. 1. A sale in which cash payment is concur
rent with the receipt of the property sold. [Cases: Sales
C::: 82(1).) 2. A securities transaction on the stock
exchange floor requiring cash payment and same-day
delivery.
compulsory sale. The forced sale of real property in
accordance with either an eminent-domain order or
an order for a judicial sale arising from nonpayment
oftaxes. [Cases: Taxation (;::::>2963.]
conditional sale. 1. A sale in which the buyer gains
immediate possession |
;::::>2963.]
conditional sale. 1. A sale in which the buyer gains
immediate possession but the seller retains title until
the buyer performs a condition, esp. payment of the
full purchase price. See retail installment contract
under CONTRACT. [Cases; Sales 2. A sale
accompanied by an agreement to resell upon speci
fied terms. Cf. absolute sale.
consignment sale. A sale ofan owner's property (such
as clothing or furniture) by a third party entrusted to
make the sale. UCC 9-102(a)(20). See CONSIGNMENT.
[Cases: Factors 20; Sales (:::=:8.)
consumer-credit sale. A sale in which the seller extends
credit to the consumer. _ A consumer-credit sale
includes a lease in which the lessee's rental payments
equal or exceed the retail value of the item rented.
[Cases: Consumer Credit
credit sale. A sale of goods to a buyer who is allowed
to pay for the goods at a later time. [Cases: Sales
82(1).]
distress sale. 1. A form of liquidation in which the
seller receives less for the goods than what would
be received under norma) sales conditions; esp., a
gOing-out-of-business sale. 2. A foreclosure or tax
sale. [Cases: Internal Revenue (:04860; Taxation
C:::2846.2963.]
dock sale. A sale in which a purchaser takes possession
of the product at the seller's shipping dock, esp. for
transportation outside the state.
documentary sale. A sale in which the buyer pays upon
the seller's tender of documents of title covering the
goods, plus a sight draft requiring the buyer to pay
"at sight." -This type of sale typically occurs before
delivery ofthe goods, which might be en route when
the buyer pays. Also termed cash-against-docu
ments sale.
exclusive sale. A sale made by a broker under an exclu
sive-agency listing. See exclusive-agency listing under
LISTING. [Cases: Brokers
execution sale. A forced sale of a debtor's property by
a government official carrying out a writ of execu
tion. -Also termed forced sale; judgment sale; sher
iff's sale. See EXECUTION. [Cases: Execution
213.]
executory sale. A sale agreed upon in principle but with
a few minor details remaining.
fair sale. A foreclosure sale or other judicial sale con
ducted with fairness toward the rights and interests
1455
of the affected parties. [Cases: Judicial Sales 15;
Mortgages ('>514, 515.]
fire sale. 1. A sale of merchandise at reduced prices
because offire or water damage. 2. Any sale at greatly
reduced prices, esp. due to an emergency . Fire sales
are often regulated to protect the public from decep
tive sales practices.
forced sale. 1. See execution sale. 2. A hurried sale by
a debtor because of financial hardship or a creditor's
action. Cf. voluntary sale.
foreclosure sale. The sale ofmortgaged property, autho
rized by a court decree or a power-of-sale clause, to
satisfy the debt. See FORECLOSURE. [Cases: Mortgages
(;:::>360,514.]
fraudulent sale. A sale made to defraud the seller's
creditors by converting into cash property that should
be used to satisfy the creditors' claims. [Cases: Fraud
ulent Conveyances (;:::: L]
gross sales. Total sales (esp. in retail) before deductions
for returns and allowances. -Also termed sales in
gross.
installment sale. See INSTALLMENT SALE.
isolated sale. An infrequent or one-time sale that does
not carry an implied warranty of merchantability
because the seller is not a merchant with respect to
goods ofthat kind. UCC 2-314(1). [Cases: Sales
272.]
judgment sale. See execution sale.
judicial sale. A sale conducted under the authority ofa
judgment or court order, such as an execution sale.
Also termed sheriff's sale. [Cases: Cases: Execution
(;:::::213; Judicial Sales C=::: 1.]
lumping sale. A court-ordered sale in which several
distinct pieces of property are sold together for a
single sum.
memorandum sale. A conditional sale in which the
buyer takes possession but does not accept title until
approving the property. [Cases: Sales (;:::::459.]
net sale. The amount of money remaining from a sale,
after deducting returns, allowances, rebates, dis
counts, and otber expenses.
present sale. Under the UCC, a sale accomplished by
the making of a contract. UCC 2-106(1). [Cases:
Sales C=::: 1(1).]
private sale. An unadvertised sale negotiated and
concluded directly between the buyer and seller, not
through an agent.
public sale. 1. A sale made after public notice, such as
an auction or sheriff's sale; specif., a sale to which the
public has been invited by advertisement to appear
and bid at auction for the items to be sold. 2. Patents.
An actual exchange for value or an offer through
some medium (e.g., a sales brochure) of an article,
product, or process to a member ofthe general public.
[Cases: Patents (~=>76.]
retail installment sale. See INSTALLMENT SALE. sale
sale against the box. See short sale against the box.
sale and leaseback. See LEASEBACK.
sale and return. See sale or return.
sale as is. A sale in which the buyer accepts the property
in its existing condition unless the seller has misrep
resented its quality. Also termed sale with all faults.
[Cases: Sales (;:::::260, 267.]
sale by sample. A sale in which the parties understand
that the goods exhibited constitute the standard with
which the goods not exhibited correspond and to
which all deliveries should conform . Any sample
that is made part of the basis of the bargain creates
an express warranty that the whole ofthe goods will
conform to the sample or model. UCC 9-102(a)
(20). Also termed sample sale. [Cases: Sales (;:::::
73.1
sale in gross. 1. A sale ofa tract ofland made with no
guarantee about the exact amount or size of the land
being sold. [Cases: Vendor and Purchaser <":::->65(2).]
2. (pl.) See gross sales.
sale-leaseback. See LEASEBACK.
sale on approval. A sale in which completion hinges
on the buyer's satisfaction, regardless ofwhether the
goods conform to the contract. Title and risk ofloss
remain with the seller until the buyer approves. UCC
2-326(1)(a). -Also termed approval sale. [Cases:
Sales (;:::::168.5(.5).]
sale on credit. A sale accompanied by delivery ofpos
session, but with payment deferred to a later date.
[Cases: Sales C--=>82(l).]
sale or return. A sale in which the buyer may return
the goods to the seller, regardless of whether they
conform to the contract, if the goods were delivered
primarily for resale . This transaction is a type of
conSignment in which the seller (usu. a distributor)
sells goods to the buyer (often a retailer), who then
tries to resell the goods, but a buyer who cannot resell
is allowed to return them to the seller. Title and risk of
loss are with the buyer until the goods are returned.
UCC 2-326(1)(b). Also termed sale and return. Cf.
SALES GUARANTEED. [Cases: Sales C=::: 168.5(.5).]
sale per aversionem (p<'lr <'l-v<}r-zhee-oh-n<}m). Civil law.
A conveyance of all immovable property that falls
within the boundaries stated in a purchase agree
ment, as opposed to a specified amount of acreage.
The sales price will not be modified because of a
surplus or shortage in the amount of property that
is exchanged, because the boundary description is
the binding definition of the property conveyed. La.
Civ. Code art. 2495. [Cases: Vendor and Purchaser
(;:::::65(2).]
sale positive. A sale with no reserve price.
sales in gross. See gross sales.
sale short. See short sale.
sale with all faults. See sale as is.
sale and exchange 1456
sale with right ofredemption. A sale in which the seller
reserves the right to retake the goods by refunding
the purchase price.
sample sale. See sale by sample.
sheriffs sale. 1. See execution sale. 2. See judicial sale.
short sale. Securities. A sale ofa security that the seller
does not own or has not contracted for at the time of
sale, and that the seller must borrow to make delivery.
Such a sale is usu. made when the seller expects
the security's price to drop. If the price does drop,
the seller can make a profit on the difference between
the price ofthe shares sold and the lower price ofthe
shares bought to pay back the borrowed shares.
Also termed sale short. [Cases: Securities Regulation
~45.17.J
short sale against the box. Securities. A short sale of
a security by a seller who owns enough shares ofthe
security to cover the sale but borrows shares anyway
because the seller wants to keep ownership a secret or
because the owned shares are not easily accessible .
Delivery may be made with either the owned or the
borrowed shares, so it is less risky than an ordinary
short sale. The phrase against the box refers to the
owned shares that are in safekeeping; formerly, the
"box" was a container used to store stock certifi
cates. -Often shortened to sale against the box.
similar sales. Eminent domain. Sales oflike property
in the same locality and time frame, admissible in a
condemnation action to determine the market value
of the particular property at issue. [Cases: Evidence
<>142.]
simulated sale. A sale in which no price or other
consideration is paid or intended to be paid, and in
which there is no intent to actually transfer owner
ship. Simulated sales are usu. done in an attempt to
put property beyond the reach ofcreditors. -Also
termed simulated transaction. [Cases: Fraudulent
Conveyances
tax sale. A sale ofproperty because ofnonpayment of
taxes. See tax deed under DEED. [Cases: Taxation
2900.]
voluntary sale. A sale made freely with the seller's
consent. Cf. forced sale.
wash sale. Securities. A sale ofsecurities made at about
the same time as a purchase of the same securities
(such as within 30 days), resulting in no change in
beneficial ownership. - A loss from a wash sale is
usu. not tax-deductible. And securities laws prohibit
a wash sale made to create the false appearance of
market activity. -Also termed wash transaction.
[Cases: Internal Revenue <>3216; Securities Regu
lation
sale and exchange. See SALE OR EXCHANGE.
sale and leaseback. See LEASEBACK.
sale and return. See sale or return under SALE.
sale-leaseback. See LEASEBACK. sale note. See NOTE (1).
sale-of-business doctrine. The outmoded rule holding
that the transfer of stock incident to the sale of a
business does not constitute a transfer ofsecurities.
This doctrine was rejected by the U.S. Supreme Court
in Landreth Timber Co. v. Landreth, 471 U.S. 681, 105
S.Ct. 2297 (1985), and its companion case, Gould v.
Ruefenacht,471 U.S. 701, 105 S.ct. 2308 (1985).
Securities Regulation ~-::>5.25(2).1
sale ofland. A transfer of title to real estate from one
person to another by a contract ofsale. A transfer of
real estate is often referred to as a conveyance rather
than a sale. [Cases: Vendor and Purchaser <>1,3.]
sale on approval. See SALE.
sale on credit. See SALE.
sale or exchange. (1905) 1. Tax. A voluntary transfer of
property for value (as distinguished from a gift) result
ing in a gain orloss recognized for federal tax purposes.
2. A transfer of property; esp., a situation in which
proceeds ofa sale are to be vested in another estate of
the same character and use. Also termed (in both
senses) sale and exchange. [Cases: Internal Revenue
3232; Taxation ~3469.]
sale or return. See SALE.
sale per aversionem. See SALE.
sale positive. See SALE.
sales agreement. (1920) A contract in which ownership
of property is presently transferred, or will be trans
ferred in the future, from a seller to a buyer for a fixed
sum. UCC 2-106(1). [Cases: Sales 1(1),3.1.]
sales-assessment-ratio study. A method for calcu
lating the assessment level for taxable property in a
jurisdiction, by comparing the assessed value and the
actual sales price ofa statistically reliable sample ofthe
property in the jurisdiction, to determine the percent
age by which the assessed values are above or below the
sales prices. [Cases: Taxation
sales finance company. See FINANCE COMPANY.
sales guaranteed. Hist. As used in a sale-of-goods
contract, the seller's promise to accept the purchaser's
return of unsold or unsalable goods and to grant the
purchaser a proportional credit or refund. Under the
UCC, the modern equivalent is sale or return. Cf. sale
or return under SALE.
sale short. See short sale under SALE.
sales in gross. See gross sales under SALE.
sales invoice. See INVOICE.
sales journal. A book used to record sales ofmerchan
dise on account.
sales load. See LOAD |
ICE.
sales journal. A book used to record sales ofmerchan
dise on account.
sales load. See LOAD.
sales mix. The relative combination ofindividual-prod
uct sales to total sales.
sales price. See PRICE.
sales puffery. See PUFFING (1).
1457
sales tax. See TAX.
sale with all faults. See sale as is under SALE.
sale with right ofredemption. See SALE.
Salk law (sal-ik or say-lik). An influential early medieval
Frankish code oflaw that originated with the Salian
Franks and that deals with a variety of civil property
and family issues but is primarily a penal code listing
the punishments for various crimes . Salk law is
the principal compilation of the early Germanic laws
known collectively as leges barbarorum ("laws of the
barbarians"). Salic law also deSignated a rule barring
females from the line of succession to the throne, as a
result of which references to Salie law have sometimes
referred only to the code provision excluding women
from inheriting certain lands (which probably existed
only because military duties were connected with the
inheritance). In the late 19th century, Oliver Wendell
Holmes revived scholarly interest in Salic law by refer
ring to it throughout The Common Law (1881). Also
termed Salique law; law Salique (sa-leek or sal-ik); lex
Salica (leks sal-a-b).
salk marriage. See morganatic marriage under
MARRIAGE (1).
salting, n. Labor law. A union tactic that involves a paid
union employee going to work for a targeted nonunion
employer with the intention of organizing the work
force. -The union agent (known as a salt) is considered
an employee ofthe nonunion company and is protected
by the National Labor Relations Act.
salus (sal-<ls), n. [Latin) Health; prosperity; safety.
salvagardia. See DE SALVA GARDIA.
salvage (sal-vij), n. 1. The rescue of imperiled property.
2. The property saved or remaining after a fire or other
loss, sometimes retained by an insurance company that
has compensated the owner for the loss. [Cases: Insur
ance (;:=2194,2717.] 3. Compensation allowed to a
person who, having no duty to do so, helps save a ship
or its cargo. Also termed (in sense 3) salvage award;
reward. [Cases: Salvage (;::::J 1.] salvage, vb.
"Salvage is a reward payable either by the shipowner or
by the owners of goods carried in the ship to persons who
save the ship or cargo from shipwreck, capture or other
loss. The right to salvage is an ancient rule of maritime law
and is not based on contractual rights. The actual amount
payable is, as a rule, assessed by the Court. Sometimes
an express agreement, fixing an amount, is made before
the assistance is rendered, but this is not a question of
salvage in the strict sense, which always implies service
by persons who are under no obligation to render it." 2
EW. Chance, Principles of Mercantile Law 98 (P.W. French
ed., 10th ed. 1951).
"With reference to aid rendered to distressed property on
navigable waters the word 'salvage' is often used indiffer
ently to describe the salvage operation and the salvage
operation and the salvage award -the latter being the
compensation granted for the services rendered." Martin
J. Norris, The Law of Salvage 2, at 2 (1958).
"A salvage award, or reward, is the compensation allowed
to the volunteer whose services on navigable waters have
aided distressed property in whole or in part. The award
is not regarded merely as pay on the principle of quantum
meruit or as remuneration pro opera et labore, but as a salvor
reward to persons participating and the owners of salving
property, voluntarily rendering their services and to
encourage others to similarly undertake the saving of life
and property. That part of the award constituting more
than quantum meruit has, on occaSions, been referred to
as a 'bounty,' 'gratuity,' and 'bonus.''' Martinj. Norris, The
Law ofSalvage 3, at 3-4 (1958).
salvage award. See SALVAGE (3).
salvage charges. Insurance. Costs necessarily incurred
in salvage.
salvage loss. See LOSS.
salvager. See SALVOR.
salvage service. The aid or rescue given, either volun
tarily or by contract, to a vessel in need of assistance
because ofpresent or apprehended danger . Although
salvage may involve towing, it is distinguished from
towing service, which is rendered merely to expedite
a voyage, not to respond to dangerous circumstances.
[Cases: SalvageC=>6.]
salvage value. See VALUE (2).
salvam fecit totius pignoris causam (sal-vam fee-sit
toh-shee-as pig-na-ris kaw-zam). [Law Latin] Scots
law. He furnished the means of saving the whole
pledge. A bottomry creditor posting the last bond
obtained preference over the remaining bottomry
creditors because the later loan preserved the property
for the earlier creditors. See bottomry bond under
BOND (2).
salva substantia (sal-va sab-stan-shee-;'l). [Latin] Roman
& civil law. The substance (of the property) being pre
served; the substance remaining intact. Also termed
salva rei substantia.
"A right of liferent, therefore, cannot be constituted in a
subject which necessarily perishes in the use: it must be a
subject which can be used salva substantia." John Trayner,
Trayner's Latin Maxims 563 (4th ed. 1894).
salvo (sal-voh). [Latin fro salvus "safe"] Hist. 1. Saving;
excepting. This term was used in deeds. 2. Safely.
salvo beneficio competentiae (sal-voh ben-<l-fish-ee-oh
kom-p<l-ten-shee-ee). [Latin] Hist. Saving the benefit
of being held liable only to the extent that one's means
permit. See BENEFICIUM COMPETENTIAE.
salvo conductu. See DE SALVO CONDUCTU.
salvojure (sal-voh joor-ee). [Latin "the rule being safe"]
Without prejudice to.
salvor (sal-v<lr), n. [Law Latin] A person who saves
a vessel and its cargo from danger or loss; a person
entitled to salvage. -Also termed salvager. [Cases:
Salvage (,':;) 18, 19.]
"A 'salvor' is a person who, without any particular relation
to a ship in distress. proffers useful service, and gives it as
a volunteer adventurer, without any pre-existing covenant
that connected him with the duty of employing himself for
the preservation ofthe ship. To be a salvor, one must have
the intention and capacity to save the distressed property
involved. but need not have an intent to acquire it." 68 Am.
Jur. 2d Salvage 2. at 270 (1993).
1458 salvus p/egius
salvus plegius (sal-vds plee-jee-ds). [Law Latin] Hist. A
safe pledge; a satisfactory pledge. See PLEDGE. Also
termed certu5 plegius.
SAM. See shared-appreciation mortgage under
MORTGAGE.
same, pron. (14c) The very thing just mentioned or
described; it or them <two days after receiving the
goods, Mr. Siviglio returned same>.
same-actor inference. Employment law. The doctrine
that when an employee is hired and fired by the same
person, and the termination occurs a reasonably short
time after the hiring, the termination will be presumed
not to be based on a discriminatory reason. [Cases:
Civil Rights C=>1534.]
same-conduct test. Criminal law. A test for determining
whether a later charge arising out of a Single incident
is barred by the Double Jeopardy Clause; specif., an
analysis ofwhether the later charge requires the state
to prove the same conduct that it was required to
prove in a previous trial against the same defendant.
The Supreme Court abandoned the Blockburger test
and adopted the same-conduct test in 1990 (Grady v.
Corbin, 495 U.S. 508, 110 S.Ct. 2084), but overruled
that decision and revived Blockburger three years later
(U.S. v. Dixon, 509 U.S. 688, 113 S.Ct. 2849 (1993)). Cf.
BLOCKBURGER TEST; SAME-TRANSACTION TEST. [Cases;
Double Jeopardy <:>132.1.]
same-elements test. 1. See BLOCKBURGER TEST. 2. See
LEGAL-ELEMENTS TEST.
same-evidence test. See BLOCKBURGER TEST.
same invention. Patents. 1. A second invention claiming
the identical subject matter as a previous invention.
[Cases: Patents <:> 120.] 2. Within a reissue statute,
the invention described in the original patent. [Cases:
Patents C=> 141.]
same-invention double patenting. See statutory double
patenting under DOUBLE PATENTING.
same-invention double patenting rejection. See statu
tory double patenting rejection under REJECTIO~.
same offense. See OFFENSE (1).
same-sex harassment. See same-sex sexual harassment
under SEXUAL HARASSMENT.
same-sex marriage. See MARRIAGE (1).
same-sex sexual harassment. See SEXUAL HARASS
MENT.
same-transaction test. Criminal law. A double-jeop
ardy test, never adopted, that would require the gov
ernment to bring all charges arising out of a single
incident against a defendant in one prosecution .
Justice Brennan advocated the same-transaction test
in a case involving a conviction for felony-murder and
a later prosecution for the underlying felony. Harris v.
Okla.) 433 U.S. 682, 97 S.Ct. 2912 (1977). Cf. BLOCK
BURGER TEST; SAME-CONDUCT TEST. [Cases; Double
Jeopardy C=> 134.]
sample sale. See sale by sample under SALE. sampling, n. Copyright. The process of taking a small
portion of a sound recording and digitally manipu
lating it as part of a new recording . Sampling may
infringe the copyright ofthe sample's source, esp. the
musical-works and sound-recording copyrights.
Also termed digital sampling. [Cases: Copyrights and
Intellectual Property <:>67.2.]
S&T. abbr. SCIENCE AND TECH~OLOGY DIRECTORATE.
sanae mentis (san-ee men-tis). [Law Latin] Hist. Of
sound mind; ofsane mind.
sandre (san-sl-ree), vb. [Latin] Roman law. To enact;
confirm; prescribe.
sanctio (sangk-shee-oh), n. [Latin fro sancio "to ordain,
confirm, or forbid under penalty"] Roman law. A par
ticular clause in a statute imposing a penalty on any
violation of that statute. PI. sanctiones (sangk-shee
oh-neez).
"5anctio (legis). A clause in a statute which strengthens its
efficacity by fixing a penalty for its violation, by forbidding
its derogation through a later enactment, or by releasing
from responsibility anyone who by acting in accordance
with the statute violated another law. The purpose of the
sanction clause was to settle the relation between the new
statute and former and future legislation. Thus the sanctio
could also state that a previous statute remained fully or
partially in force without being changed by the new one."
Adolf Berger, Encyclopedic Dictionary of Roman Law 689
(1953).
sanction (sangk-shdn), n. (ISc) 1. Official approval
or authorization <the committee gave sanction to
the proposal>. Cf. RATIFICATION (1). 2. A penalty or
coercive measure that results from failure to comply
with a law, rule, or order <a sanction for discovery
abuse>. Cf. DISCIPLINE.[Cases: Costs C=>2; Criminal
Law ~627.8(6); Federal Civil Procedure <:>1278,
2750; Pretrial Procedure
"Without adequate sanctions the procedure for discovery
would often be ineffectual. Under Rule 37 [of the Federal
Rules of Civil Procedure], ... any party or person who seeks
to evade or thwart full and candid discovery incurs the risk
of serious consequences, which may involve imprisonment
for contempt of court, an order that designated facts be
taken to be established, an order refusing the delinquent
party the right to support or oppose designated claims
or defenses, striking out pleadings or parts of pleadings,
rendering judgment by default, dismissal of the action or
a claim therein, or assessment of expenses and attorney's
fees. Sanctions are intended to prompt a party to respond."
8A Charles Alan Wright et aI., Federal Practice and Proce
dure 2281, at 595-95 (2d ed. 1994).
criminal sanction. (1872) A sanction attached to a
criminal conviction, such as a fine or restitution.
Also termed penal sanction.
"A criminal sanction ... is a legally authorized post-con'
viction deprivation suffered by a human being through
governmental action. By using the words 'postconviction'
in that definition, criminal sanctions are thus limited to
those imposed upon defendants in criminal proceedings
who, by reason or in consequence of ajudgment entered
upon a verdict of gUilty found by ajury, or judge sitting
without ajury (the latter having been legally waived), or
upon a plea of guilty, or a plea of nolo contendere, stand
conVicted." A Treatise on the Law of Crimes 2.00. at 66
(Marian QUinn Barnes ed., 7th ed. 1 |
of Crimes 2.00. at 66
(Marian QUinn Barnes ed., 7th ed. 1967).
1459
death-penalty sanction. (1991) Civil procedure. A !
court's order dismissing the suit or entering a default
judgment in favor of the plaintiffbecause of extreme
discovery abuses by a party or because of a party's
action or inaction that shows an unwillingness to
participate in the case. Such a sanction is rarely
ordered, and is usu. preceded by orders oflesser sanc
tions that have not been complied with or that have
not remedied the problem. -Often shortened to
death penalty. [Cases: Federal Civil Procedure
1278; Pretrial Procedure C=>46.]
shame sanction. (1991) A criminal sanction designed
to stigmatize or disgrace a convicted offender, and
often to alert the public about the offender's convic
tion. A shame sanction usu. publicly associates the
offender with the crime that he or she committed. An
example is being required to post a sign in one's yard
stating, "Convicted Child Molester Lives Here."
Also termed shame sentence; shaming sanction;
shaming sentence; scarlet-letter punishment; scarlet
letter sentence.
3. Int'llaw. An economic or military coercive measure
taken by one or more countries toward another to force
it to comply with international law <U.N. sanctions
against a renegade nation>.
sanction, vb. (18c) 1. To approve, authorize, or support
<the court will sanction the trust disposition if it is
not against public policy>. 2. To penalize by imposing
a sanction <the court sanctioned the attorney for vio
lating the gag order>.
sanctionable, adj. (18c) (Of conduct or action) meriting
sanctions; likely to be sanctioned. [Cases: Federal Civil
Procedure C='1278,2750-2848.]
sanctional enforcement. See secondary right under
RIGHT.
sanctioning right. See secondary right under RIGHT.
sanctions tort. A means ofrecovery for another party's
discovery abuse, whereby the judge orders the abusive
party to pay a fine to the injured party for the discovery
violation. This is not a tort in the traditional sense, but
rather a form ofpunishment that results in monetary
gain for the injured party.
sanctity ofcontract. (1831) The principle that the parties
to a contract, having duly entered into it, must honor
their obligations under it. [Cases: Contracts
"[Sanctity of contract] is merely another facet of freedom
of contract, but the two concepts cover, to some extent,
different grounds. The sanctity of contractual obliga
tions is merely an expression of the principle that once
a contract is freely and voluntarily entered into, it should
be held sacred, and should be enforced by the Courts if
it is broken. No doubt this very sanctity was an outcome
of freedom of contract, for the reason why contracts were
held sacred was the fact that the parties entered into them
of their own choice and volition, and settled the terms by
mutual agreement." P.S. Atiyah, An Introduction to the Law
ofContract12 (3d ed. 1981).
sanctuary. (14c) 1. A safe place, esp. where legal process
cannot be executed; asylum. sanity hearing
"Every consecrated church was a sanctuary. If a malefactor
took refuge therein, he could not be extracted; but it was
the duty of the four neighbouring vilis to beset the holy
place, prevent his escape and send for a coroner. ... [Alfter
he had enjoyed the right of asylum for forty days, he was
to be starved into submission; but the clergy resented this
interference with the peace of Holy Church." 2 Frederick
Pollock & Frederic William Maitland. History ofEnglish Law
Before the Time ofEdward 1590-91 (2d ed. 1899).
"In medieval England. as elsewhere in Europe, there were
a number of ecclesiastical places where the king's writ
did not run. The underlying theory was that consecrated
places should not be profaned by the use of force, but the
result in practice was that thieves and murderers could
take refuge and thereby gain immunity even against the
operation of criminal justice. This was the privilege called
'sanctuary.' In the case of parochial churches, the sanctu
ary lasted for forty days only. Before the expiration of this
period, the fugitive had to choose whether to stand trial
or 'abjure' the realm .... This was only permitted if he
made a written confession to the coroner, which resulted
in the forfeiture of his property as on conviction; his life
only was spared ...."J.H. Baker, An Introduction to English
Legal History 585 (3d ed. 1990).
2. A holy area of a religious building; esp., the area in
a church or temple where the main altar or tabernacle
is located.
sandbagging, n. 1. A trial lawyer's remaining cagily
silent when a possible error occurs at trial, with the
hope ofpreserving an issue for appeal ifthe court does
not correct the problem . Such a tactic does not usu.
preserve the issue for appeal because objections must
be promptly made to alert the trial judge ofthe possible
error. [Cases: Criminal Law (;::::::> 1030(1); Federal Courts
C=>611.] 2. Corporations. An antitakeover tactic
wherein the target company delays a hostile bidder's
final offer by agreeing to negotiate then prolonging bad
faith negotiations as long as pOSSible. sandbag, vb.
S & L. abbr. SAVINGS-AND-LOAN ASSOCIATION.
sandpapering, n. A lawyer's general preparation of a
witness before a deposition or triaL Cf. HORSESHED
DING.
sandwich lease. See LEASE.
sane, adj. (17c) Having a relatively sound and healthy
mind; capable of reason and of distinguishing right
from wrong. [Cases: Criminal Law (''--:>46; Mental
Health C=>3.L]
sane memory. See CAPACITY (3).
sanguis (sang-gwis), n. [Latin "blood"]l. Roman law.
Blood relationship. 2. Hist. Consanguinity. 3. Hist.
The right ofa chieflord to judge cases involving blood
shed.
sanitary code. A set of ordinances regulating the food
and healthcare industries. [Cases: Food C='1; Health
(,'J354.J
sanity. (15c) The state or condition of having a relatively
sound and healthy mind. Cf. INSANITY. [Cases: Mental
Health C=>3.1,432.]
sanity hearing. (1925) 1. An inquiry into the mental
competency of a person to stand trial. See COMPE
TENCY. Cases: Criminal Law C=>623.] 2. A proceeding
1460 sans ce que
to determine whether a person should be institutional
ized. [Cases: Mental Health
sans ce que (sanz see k;) or sawn s;} k;). [Law French] See
ABSQUE HOC.
sansfrais (sawn fray). [Law French] Without expense.
sans impeachment de wast (sanz im-peech-m;}nt d<l
wayst). [Law French] Hist. Without impeachment of
waste.
sans jour (sawn zhoor or sanz joor). [Law French] Hist.
Without day; SINE DIE. See ALLER SANS JOUR.
sans recours (sawn r<'l-koor or sanz ri-kuur). See
WITHOUT RECOURSE.
sap, n. A club, a blackjack, a hose containing rocks in
the middle, or any other object generally used as a
bludgeon.
sapiens naturam delicti (say-pee-enz n;)-t[y]oor-;:,m di
lik-tI). [Law Latin] Hist. Partaking of the character of
a delict.
SAPJ. See senior administrative patent judge under
JUDGE.
SAR. abbr. 1. STOCK-APPRECIATION RIGHT. 2. SUSPI
CIOUS-ACTIVITY REPORT.
sasine. See SEISIN.
satellite litigation. (1983) 1. One or more lawsuits related
to a major piece oflitigation that is being conducted
in another court <the satellite litigation in state court
prevented the federal judge from ruling on the issue>.
2. Peripheral skirmishes involved in the prosecution of
a lawsuit <the plaintiffs called the sanctions "satellite
litigation," drummed up by the defendants to deflect
attention from the main issues in the case>.
satellite state. See client state under STATE.
satisdare (sat-is-dair-ee), vb. [Latin fro satis "sufficient" +
dare "to give"] Roman law. To give security in the form
ofsatisdatio. See SATISDATIO.
satisdatio (sat-is-day-shee-oh), n. [Latin fro satisdarel
Roman law. Security given by a person, such as a debtor,
through a surety. PI. satisdationes (sat-is-day-shee-oh
neez).
satisfaction, n. (l4c) 1. The giving of something with
the intention, express or implied, that it is to extin
guish some existing legal or moral obligation. _ Satis
faction differs from performance because it is always
something given as a substitute for or equivalent of
something else, while performance is the identical
thing promised to be done. Also termed satisfac
tion ofdebt. [Cases: Accord and Satisfaction (;::::> 1.] 2.
The fulfillment ofan obligation; esp., the payment in
full of a debt.
"Satisfaction closely resembles performance. Both depend
upon presumed intention to carry out an obligation, but
in satisfaction the thing done is something different from
the thing agreed to be done, whereas in performance the
identical act which the party contracted to do is considered
to have been done. The cases on satisfaction are usually
grouped under four heads, namely, OJ satisfaction of debts
by legacies; (ii) satisfaction of legacies by legacies; (iii) satisfaction (or ademption) of legacies by portions; and (iv)
satisfaction of portion-debts by legacies, or by portions.
Strictly, however, only the first and last of these heads are
really cases of satisfaction; for satisfaction presupposes an
obligation, which, of course, does not exist in the case of
a legacy in the will of a living person." R.E. Megarry, Snell's
Principles ofEquity 226-27 (23d ed. 1947).
3. SATISFACTION PIECE. 4. Wills & estates. The payment
by a testator, during the testator's lifetime, of a legacy
provided for in a will; ADVANCEMENT. Cf. ADEMPTION.
[Cases: Wills (;::::>772.] 5. Wills & estates. A testamen
tary gift intended to satisfy a debt owed by the testator
to a creditor. See ACCORD AND SATISFACTION. -satisfy,
vb.
satisfaction contract. See CONTRACT.
satisfaction ofdebt. See SATISFACTION (1).
satisfaction ofjudgment. (17c) 1. The complete discharge
ofobligations under a judgment. [Cases: Federal Civil
Procedure (;::::>2398; Judgment (;::::>874-899.] 2. The
document filed and entered on the record indicating
that a judgment has been paid. [Cases: Federal Civil
Procedure (;::::>2398; Judgment (;::::>897.]
"Generally, a satisfaction of ajudgment is the final act and
end of a proceeding. Satisfaction implies or manifests
an expression of finality as to all questions of liability
and damages involved in the litigation. Once satisfac
tion occurs, further alteration or amendment of a final
judgment generally is barred. Satisfaction of ajudgment,
when entered of record by the act of the parties, is prima
facie evidence that the creditor has received payment of
the amount of the judgment or its equivalent, and operates
as an extinguishment of the judgment debt," 47 Am. Jur.
2d judgments 1006, at 443 (1995).
satisfaction oflien. (1833) 1. The fulfillment of all obli
gations made the subject of a lien. 2. The document
Signed by the lienholder releasing the property subject
to a lien.
satisfaction ofmortgage. (18c) 1. 1he complete payment
ofa mortgage. 2. A discharge Signed by the mortgagee
or mortgage holder indicating that the property subject
to the mortgage is released or that the mortgage debt
has been paid and the mortgage conditions have been
fully satisfied. [Cases: Mortgages (;::::>309-315.]
satisfaction piece. (1831) A written statement that one
party (esp. a debtor) has discharged its obligation to
another party, who accepts the discharge. -Also
termed certificate of discharge; satisfaction. [Cases:
Mortgages (;::::> 309.]
satisfactory evidence. See EVIDENCE.
satisfactory proof. See satisfactory evidence under
EVIDENCE.
satisfied term. See TERM (4).
Saturday-night special. (1959) 1. A handgun that is
easily obtained and concealed. [Cases: Weapons
4,8.] 2. Corporations. A surprise tender offer typically
held open for a limited offering period (such as one
week) to maximize pressure on a shareholder to accept.
-These tender offers are now effectively prohibited by
section 14(e) of the Williams Act. 15 USCA 78n(e).
1461 scale
saunkefin (sawn-k~-fan). [fro Law French sang quifinl
Hist. End of blood; the failure ofa line ofsuccession.
SAUSA. abbr. Special assistant to the united states
attorney. See UNITED STATES ATTORNEY.
sauvagine |
. Special assistant to the united states
attorney. See UNITED STATES ATTORNEY.
sauvagine (soh-va-zheen). [Law French] Hist. 1. Wild
animal. 2. Wild nature ofan animal.
save, vb. 1. To preserve from danger or loss <save a ship in
distress>. 2. To lay up; to hoard <save money>. 3. To toll
or suspend (the operation, running, etc.) ofsomething
<save a statute of limitations>. 4. To except, reserve,
or exempt (a right, etc.) <to save vested rights>. 5. To
lessen or avoid (a cost, resource, etc.) <save labor>.
save harmless. See HOLD HARMLESS.
save-harmless agreement. See HOLD-HARMLESS AGREE
MENT.
save-harmless clause. See INDEMNITY CLAUSE.
saver default (say-v;)r di-fawlt). [Law French] Hist. To
excuse a default. Also spelled saver de fault; saver
defaut.
"Saver default is the same as to excuse a default. And this is
properly when a man having made default in court, comes
afterwards, and alleges a good cause why he did it, as
imprisonment at the same time, or the like." Termes de la
Ley 352 (1 st Am. ed. 1812).
saving, n. An exception; a reservation.
saving clause. (17c) 1. A statutory provision exempt
ing from coverage something that would otherwise
be included. _ A saving clause is generally used in a
repealing act to preserve rights and claims that would
otherwise be lost. [Cases: Statutes (;::0228, 278.23.]
2. SAVING-TO-SUITORS CLAUSE. 3. SEVERABILITY
CLAUSE. Also termed savings clause.
savings account. A saVings-bank depositor's account
usu. bearing interest or containing conditions (such as
advance notice) to the right of withdrawaL
savings-account trust. See Totten trust under TRUST.
savings-and-Ioan association. (1884) A financial insti
tution -often organized and chartered like a bank
that primarily makes home-mortgage loans but also
usu. maintains checking accounts and provides other
banking services. Often shortened to S & L. -Also
termed savings-and-loan bank; loan association; thrift
institution; thrift, Cf. BUILDING-AND-LOAN ASSOCIA
TION. [Cases: Building and Loan Associations
24-40.J
'The thrift institutions, mutual savings banks, savings
and loan associations, and credit unions, originally were
created to meet needs for saving, credit and loans of people
whose resources and income were modest. Commercial
banks, merchants, money lenders, and pawn shops often
did not serve this demand for loans or savings as well, or
with interest rates as favorable to poor individuals. and
families. During the last two centuries, thrift institutions
were gradually developed, therefore, by social reformers,
philanthropic benefactors, religious and fraternal organiza
tions, trade unions, employers, and thrift entrepreneurs (in
most countries of the world) as a collateral type of banking
or financial intermediation." William A. Lovett, Banking and
Financial Institutions Law in a Nutshell 236 (1997).
savings bank. See BANK. savings-bank trust. See Totten trust under TRUST.
savings bond. See BOND (3).
savings clause. See SAVING CLAUSE.
savings note. See NOTE (1).
saving-to-suitors clause. Maritime law. In the federal
statutory provision granting admiralty and maritime
jurisdiction to the federal courts, a clause that pre
serves the option to file suit in a nonadmiralty court. 28
USCA 1333(1). -The nonadmiralty court is typically
either a state court or a law-side federal court. Under
the reverse-Erie doctrine. the nonadmiralty court is
required to apply the same law that the admiralty court
would have used. Also termed saving clause. [Cases:
Admiralty (;::02.]
savor, vb. (16c) To partake of the character of or bear
affinity to (something) . In traditional legal idiom,
an interest arising from land is said to "savor of the
realty." Also spelled savour.
S.B. See senate bill under BILL (3).
SBA. abbr. SMALL BUSINESS ADMINISTRATION.
SBIC. abbr. SMALL- BUSINESS INVESTMENT COMPANY.
sc. abbr. SCILICET.
S.c. abbr. 1. SUPREME COURT. 2. Same case. _ In former
practice, when put between two citations, the abbrevia
tion indicated that the same case was reported in both
places. 3. SENATUS CONSULTUM.
scab. (ISc) A person who works under conditions
contrary to a union contract; esp., a worker who crosses
a union picket line to replace a union worker during a
strike. Also termed strikebreaker.; (in BrE) black
leg labor.
scabini (sk;)-bI-nr). [Law Latin] Hist. Judges or the judge's
assessors in the court held by the count; magistrates.
-The term was found in a charter from the wardens
of Lynn in Norfolk, during the reign of Henry VIII.
But even earlier than that, the title was used in Charle
magne's empire (the French equivalent being edevins)
and later Germanized as SchOffen.
scalam (skay-Idm), n. [Latin] Hist. Scale. -Ad sealam
was the method of paying money to the Exchequer,
in which sixpence was added to each twenty shillings
to compensate for a deficiency in weight, although no
scales were actually used.
scale, n. 1. A progression ofdegrees; esp., a range of wage
rates. 2. A wage according to a range of rates. 3. An
instrument for weighing. 4. Hist. In the practice ofthe
English Supreme Court of Judicature, the fee charged
by a solicitor for a particular type of case. _ Unless
the court ordered otherwise, the lower scale applied
to all causes and matters aSSigned by the Judicature
Acts to the King's Bench. or the Probate, Divorce, and
Admiralty divisions; to all actions for debt, contract,
or tort; and to almost all causes and matters assigned
by the acts to the Chancery division and in which the
amount in controversy was less than 1,000. The higher
scale applied in all other cases, and in actions falling
1462 scale order
under one of the lower-scale classes if the principal
relief sought was injunctive.
scale order. See ORDER (8).
scale tolerance. The nominal variation of the mass or
weight of the same goods on different scales.
scaling law. (1882) Rist. A statute establishing a process
for adjusting value differences between depreci
ated paper money and specie. Statutes of this type
were necessary when paper depreciated after both the
American Revolution and the Civil War.
scalper. L A seller who buys something (esp. a ticket)
at face value (or less) and then tries to resell it for a
higher price. Also termed ticket speculator. [Cases:
Public Amusement and Entertainment (::::>70.] 2. An
investment adviser who buys a security before recom
mending it to clients. 3. A market-maker who puts an
excessive markup or markdown on a transaction.
scalping, n. 1. The practice of selling something (esp. a
ticket) at a price above face value once it becomes scarce
(usu. just before a high-demand event begins). [Cases:
Public Amusement and Entertainment (::::>70.J 2. The
purchase ofa security by an investment adviser before
the adviser recommends that a customer buy the same
security. This practice is usu. considered unethical
because the customer's purchase will increase the secu
rity's price, thus enabling the investment adviser to sell
at a profit. 3. The excessive markup or markdown on a
transaction by a market -maker. This action violates
National Association of Securities Dealers guide
lines. -scalp, vb.
scandal. 1. Disgraceful, shameful, or degrading acts
or conduct. 2. Defamatory reports or rumors; esp.,
slander. See SCANDALOUS MATTER.
"Scandal consists in the allegation of anything which
is unbecoming the dignity of the court to hear, or is
contrary to decency or good manners, or which charges
some person with a crime not necessary to be shown in
the cause, to which may be added that any unnecessary
allegation, bearing cruelly upon the moral character of an
individual, is also scandalous. The matter alleged, however,
must be not only offensive, but also irrelevantto the cause,
for however offenSive it be, if it be pertinent and material
to the cause the party has a right to plead it. It may often be
necessary to charge false representations, fraud and immo
rality, and the pleading will not be open to the objection of
scandal, if the facts justify the charge." Eugene A. Jones,
Manual ofEquitV Pleading and Practice SO-51 (1916).
scandalous matter. (17c) Civil procedure. A matter that is
both grossly disgraceful (or defamatory) and irrelevant
to the action or defense . A federal court upon a
party's motion or on its own -can order a scandalous
matter struck from a pleading. Fed. R. Civ. P. 12(f). Cf.
IMPERTINENT MATTER. [Cases: Federal Civil Procedure
Pleading (::::>364(4).]
scandalous subject matter. Trademarks. A word, phrase,
symbol, or graphic depiction that the U.S. Patent and
Trademark Office may refuse to register because it
is shockingly offensive to social mores . Although
the Lanham Act uses the phrase "immoral, decep
tive, or scandalous subject matter," courts have not distinguished "scandalous" from "immoral." [Cases:
Trademarks (::::>1072.]
scandalum magnatum (skan-dd-ldm mag-nay-tdm).
[Law Latin1Rist. Actionable slander ofpowerful people;
specif., defamatory comments regarding persons of
high rank, such as peers, judges, or state officials.
"Words spoken in derogation of a peer, a judge, or other
great officer of the realm, which are called scandalum
magnatum, are held to be still more heinous; and, though
they be such as would not be actionable in the case of
a common person, yet when spoken in disgrace of such
high and respectable characters, they amount to an atro
cious injury: which is redressed by an action on the case
founded on many ancient statutes; as well on behalf of the
crown, to inflict the punishment of imprisonment on the
slanderer, as on behalf of the party, to recover damages for
the injury sustained." 3 William Blackstone, Commentaries
on the Laws of Eng/and 123-24 (1768).
scarlet-letter punishment. See shame sanction under
SANCTION.
scarlet-letter sentence. See shame sanction under
SANCTION.
scatter-point analysis. (1993) A method for studying the
effect that minority-population changes have on voting
patterns, involving a plotting ofthe percentage of votes
that candidates receive to determine whether voting
percentages increase or decrease as the percentages of
voters of a particular race increase or decrease.
scenes afaire (sen ah fair). [French uscenes for action"]
Copyright. Standard or general themes that are common
to a wide variety of works and are therefore not copy
rightable. Examples of scenes afaire are obvious plot
elements and character types. [Cases: Copyrights and
Intellectual Property (::::> 12(2).]
schedule, n. (15c) A written list or inventory; esp.,
a statement that is attached to a document and that
gives a detailed showing of the matters referred to in
the document <Schedule B to the title policy lists the
encumbrances on the property>. schedule, vb.
scheduled, adj.
scheduled injury. See INJURY.
scheduled property. See PROPERTY.
scheme. (16c) 1. A systemic plan; a connected or orderly
arrangement, esp. of related concepts <legislative
scheme>. 2. An artful plot or plan, usu. to deceive
others <a scheme to defraud creditors>.
scheme ofarrangement. English law. A court-approved
reorganization of a company's capital structure or
debts. The company seeking to reorganize is usu. in
financial trouble but may not yet be insolvent.
creditors' scheme ofarrangement. A reorganization
plan in which creditors agree to defer demands for
payment, in hopes ofeventually receiving more than
they would if the company were immediately liqui
dated.
members'scheme ofarrangement. A reorganization
plan voted on and approved by the company's share
holders. This type of scheme may be used to prepare
1463
for a merger. Also termed shareholders' scheme of
arrangement.
shareholders' scheme ofarrangement. See members'
scheme ofarrangement.
schism (siz-Jm or skiz-Jm). (l4c) 1. A breach or rupture; a
division, esp. among members ofa group, as ofa union.
2. A separation ofbeliefs and doctrines by persons of
the same organized religion, religious denomination,
or sect [Cases: Religious Societies 35.]
"It has been held that the civil courts are not concerned
with mere schisms stemming from disputations over
matters of religious doctrine, not only because such ques
tions are essentially ecclesiastical rather than judicial, but
also because of the separation between the church and the
state .... However, it has also been held that the situa
tion is different in the case of self-governing congressional
churches, for here the courts do not hesitate to assume
jurisdiction when a schism affects property rights, for in
this form ... each local congregation is independent and
autonomous and there is no recourse within the denomi
nation." 66 Am. Jur. 2d Religious |
and
autonomous and there is no recourse within the denomi
nation." 66 Am. Jur. 2d Religious Societies 51, at 804
(1973).
school, n. 1. An institution oflearning and education,
esp. for children. [Cases: Schools (::::J 11.]
"Although the word 'school' in its broad sense includes i
all schools or institutions, whether of high or low degree,
the word 'school' frequently has been defined in constitu
tions and statutes as referring only to the public common
schools generally established throughout the United
States .. When used in a statute or other contract,
'school' usually does not include univerSities, business
colleges, or other institutions of higher education unless
the intent to include such institutions is clearly indicated."
68 Am. Jur. 2d Schools 1, at 355 (1993).
common school. See public school.
district school. A public school contained in and main
tained by a school district. See SCHOOL DISTRICT.
private school. A school maintained by private indi
viduals, religiOUS organizations, or corporations,
funded, at least in part, by fees or tuition, and open
only to pupils selected and admitted based on reli
gious affiliations or other particular qualifications.
[Cases: Schools 1.]
public school. An elementary, middle, or high school
established under state law, regulated by the local
state authorities in the various political subdivisions,
funded and maintained by public taxation, and open
and free to all children ofthe particular district where
the school is located. -Also termed common school.
[Cases: Schools C=> 11.]
2. The collective body ofstudents under instruction in
an institution oflearning_ 3. A group ofpeople adhering
,
, to the same philosophy or system ofbeliefs.
school board. An administrative body, made up of a
number of directors or trustees, responSible for over
seeing public schools within a city, county, or district.
Cf. BOARD OF EDUCATION. [Cases: Schools (::::J51.]
school bond. See BOND (3).
school district. A political subdivision ofa state, created
by the legislature and invested with local powers ofself
government, to build, maintain, fund, and support the scientific method
public schools within its territory and to otherwise
assist the state in administering its educational respon
sibilities. [Cases: Schools G=2L]
consolidated school district. A public-school district in
which two or more existing schools have consolidated
into a Single district. [Cases: Schools
school land. See LAND.
Schumer box. In a credit-card agreement, a table that
summarizes all the costs for which the cardholder is
liable, so that the cardholder can more easily compare
credit-card agreements. _ The term derives from the
name of Senator Charles Schumer, who proposed the
disclosure requirements. The box must contain the
information listed in 15 t.JSCA 1637(c)(1)(A)-(B).
Also termed Schumer's box. [Cases: Consumer Credit
Scieuce and Technology Directorate. The division of
the Department of Homeland Security responsible for
coordinating research and development, including pre
paring for and responding to terrorist threats involv
ing weapons ofmass destruction. -The Directorate
also works with the Chemical, Biological, Radiological,
and Nuclear Countermeasures Program and the Envi
ronmental Measurements Lab in the Department of
Energy, the National BW (biological warfare) Defense
Analysis Center in the Department ofDefense, and the
Plum Island Animal Disease Center Abbr. S&T.
science oflegislation. See LAW REFORM.
sciendum est (sI-en-d;:lm est). [Latin] Roman law. It is
to be known or understood. - This phrase often intro
duced a particular topic or explanation.
sciens et prudens (sI-enz et proo-denz). [Latin] Hist. In
full knowledge and understanding.
scienter (sI-en-tJr or see-), n. [Latin "knowingly"] (1824)
1. A degree of knowledge that makes a person legally
responsible for the consequences of his or her act or
omission; the fact ofan act's having been done know
ingly, esp. as a ground for civil damages or criminal
punishment. See KNOWLEDGE; MENS REA. [Cases:
Criminal Law C=>20; Negligence (::::J212, 302.] 2. A
mental state consisting in an intent to deceive, manipu
late, or defraud. -In this sense, the term is used most
often in the context of securities fraud. The Supreme
Court has held that to establish a claim for damages
under Rule lOb-5. a plaintiff must prove that the defen
dant acted with scienter. Ernst & Ernst v. Hochfelder,
425 U.S. 185,96 S.Ct. 1375 (1976). [Cases: Securities
Regulation G:::c60,45, 60.51(2).]
scienter action. A lawsuit in which the plaintiff must
prove that the defendant acted knOWingly or knew of
the danger -e.g., at common law an action for damage
caused by a domestic animaL See SCIENTER.
scientific creationism. See CREATIONISM.
scientific evidence. See EVIDENCE.
scientific knowledge. See KNOWLEDGE.
scientific method. An analytical technique by which a
hypothesis is formulated and then systematically tested
1464 sci. fa.
through observation and experimentation. [Cases:
Criminal Law C=>388.1; Evidence C=>555.]
sci. fa. abbr. SCIRE FACIAS.
scH. abbr. SCILICET.
scilicet (sH-d-set or -sit). [fro Latin scire licet "that you
may know"] (14c) That is to say; namely; VIDELICET.
Like videlicet, this word is used in pleadings and other
instruments to introduce a more particular statement
ofmatters previously mentioned in general terms. It has
never been quite as common, however, as videlicet. -
Abbr. sc.; scil.; (erroneously) ss.
SCIN. abbr. See self-canceling installment note under
NOTE (1).
scintilla (sin-til-d). (13c) A spark or trace <the standard is
that there must be more than a scintilla of evidence>. PI.
scintillas (sin-tH-n). [Cases: Evidence C=>597; Federal
Civil Procedure C=>2146; Judgments C=>185(5); Trial
C=> 139.1(8).]
scintilla juris (sin-til-d joor-is). [Law Latin "a spark of
right"] Hist. A fragment of law or right. This refers
to a figurative expression in the law of uses providing
a trace of seisin rights to remain in the feoffees suffi
cient to allow contingent uses to be executed under the
Statute ofUses. Itwas abolished in the Law ofProperty
Amendment Act of 1860. See STATUTE OF USES.
scintilla-of-evidence rule. (1896) A common-law
doctrine holding that if even the slightest amount of
relevant evidence exists on an issue, then a motion for
summary judgment or for directed verdict cannot be
granted and the issue must go to the jury. Federal
courts do not follow this rule, but some states apply
it. -Also termed scintilla rule. [Cases: Federal Civil
Procedure C=>2146, 2546; Judgment C=> 185(5); Trial
C=> 139.1(8).]
scire facias (sl-ree fay-shee-ds). [Law Latin "you are to
make known, show cause"] (15c) A writ requiring the
person against whom it is issued to appear and show
cause why some matter ofrecord should not be annulled
or vacated, or why a dormant judgment against that
person should not be revived. -Abbr. sci. fa. [Cases:
Scire Facias C=> 1.]
amicable scire facias to revive a judgment. A written
agreement in which a person against whom a revival
ofan action is sought agrees to the entry ofan adverse
judgment.
scire facias ad audiendum errores (sl-ree fay-shee-ds
ad aw-dee-en-ddm e-ror-eez). [Law Latin "that you
cause to know to hear errors"] Hist. A common
law writ allowing a party who had assigned error to
compel the opposing party to plead . It was abol
ished in 1875.
scire facias ad disprobandum debitum (sl-ree fay
shee-ds ad dis-proh-ban-ddm deb-d-tdm). [Law Latin
"that you cause to know to disprove the debt"] Hist.
A writ allowing a defendant in a foreign attachment
against the plaintiff to disprove or avoid the debt recovered by the plaintiff, within a year and a day
from the time of payment.
scire facias ad rehabendam terram (sl-ree fay
shee-ds ad re-hd-ben-ddm ter-dm), n. [Law Latin
"that you cause to know to recover the land"] Hist.
A writ allowing a judgment debtor to recover lands
taken in execution after the debtor has satisfied the
judgment.
scire facias quare restitutionem non (Sl-ree fay-shee-ds
kwair-ee res-td-t[y]oo-shee-oh-ndm non), n. [Law
Latin "that you cause to know why (there is not) resti
tution"] Hist. A writ for restitution after an execution
on a judgment is levied but not paid and the judgment
is later reversed on appeal.
scire facias sur mortgage (sl-ree fay-shee-ds Sdr
mor-gij), n. [Law Latin "that you cause to know on
mortgage"] Hist. A writ ordering a defaulting mort
gagor to show cause why the mortgage should not be
foreclosed and the property sold in execution. [Cases:
Mortgages C=>388.]
scire facias sur municipal claim (SI-ree fay-shee-ds Sdr
myoo-nis-d-pdl klaym), n. [Law Latin "that you cause
to know on municipal claim"] Hist. A writ compelling
the payment ofa municipal claim out ofthe property
to which a municipal lien is attached.
scire feci (sl-ree fee-SIlo [Latin "I have caused to know"]
Hist. The sheriff's return to a writ of scire facias, indi
cating that notice was given to the parties against whom
the writ was issued.
scire fieri inquiry (sl-ree fl-d-n), n. [Law Latin] Hist. A
writ to ascertain the location of a testator's property
from an executor, when the sheriff returned nulla bona
to a writ ofexecution fieri facias de bonis testatoris. See
FIERI FACIAS.
scite (SIt). [fr. Latin situs] Archaic. 1. A location; a site.
2. The site of a capital messuage. 3. A municipal ordi
nance. -Also termed site.
scofflaw (skof-law). (1924) 1. A person who treats the
law with contempt; esp., one who avoids various laws
that are not easily enforced <some scofflaws carry man
nequins in their cars in order to drive in the carpool
lane>. 2. Hist. A person who consumes illegally made
or obtained alcoholic beverages . This was the original
meaning.
scold, n. Hist. A person who regularly breaks the peace
by scolding people, increasing discord, and generally
being a public nuisance to the neighborhood . This
behavior was formerly punishable in various ways,
including having an iron bridle fitted to the person's
mouth. -Also termed common scold; objurgatrix. See
BRANKS. [Cases: Criminal LawC=>45.25.]
scolding bridle. See BRANKS.
scope note. (1903) In a digest, a precis appearing after
a title and showing concisely what subject matter is
included and what is excluded.
"In the Century and Decennial Digests, though not in the
various digests of the Key-Number Series, there is printed
1465
immediately following each topic title a couple of para
graphs which are called the Scope-Note. The first para
graph of this scope-note shows very briefly the character
of the subject-matter included under the title. The second
paragraph shows the 'Exclusions' -i.e., what related
matter has been excluded in order to conform to the plan
of the Digest and directs the reader to the proper title
under which such related matter may be found. Conse
quently a little study of the scope-note will ofttimes repay
the searcher for a few moments' time consumed in so
doing." William M. Lile et aI., Brief Making and the Use of
Law Books 116 (3d ed. 1914).
scope ofa patent. Patents. The limits ofa patent's protec
tion, as defined by the allowed claims. [Cases: Patents
~165.]
scope of authority. (1805) Agency. The range of reason
able power that an agent has been delegated or might
foreseeably be delegated in carrying out the princi
pal's business. See SCOPE OF EMPLOYMENT; RESPON
DEAT SUPERIOR. [Cases: Principal and Agent
92-137.]
scope ofbusiness. The range ofactivities that are reason
ably necessary to operate a commercial venture suc
cessfully, as determined by the nature of the venture
and the activities of others engaged in the same occu
pation in the same area.
scope ofemployment, (1836) The range of reasonable and
foreseeable activities that an employee engages in while
carrying out the employer's business; the field of action
in which a servant is authorized to act in the master
servant relationship. See RESPONDEAT SUPERIOR. Cf.
COURSE OF EMPLOYMENT; ZONE OF EMPLOYMENT.
[Cases: Labor and Employment ~2769, 3044.]
scope-of-work clause. A contractual provision that
highlights in summary fashion what work is to be per
formed under the contract.
scorched-earth defense. Corporations. An antitake
over tactic by which a target corporation sells its most
|
scorched-earth defense. Corporations. An antitake
over tactic by which a target corporation sells its most
valuable assets or divisions in order to reduce its value
after acquisition and thus try to defeat a hostile bidder's
tender offer. Cf. CROWN-JEWEL DEFENSE; PAC-MAN
DEFENSE.
S corporation. See CORPORATION.
scot. Hist. A payment; esp., a customary tax.
soul scot. Hist. Eccles. law. See MORTUARY. Also
written soul shot.
scotal (skot-~I). Hist. An extortionary practice by which
forest officers forced people to patronize the officers'
alehouses, often in exchange for the officers' ignoring
forest offenses. _ This practice was prohibited in 1217
by the Charter of the Forest, ch. 7. Also spelled
scotale (skot-ayl).
scot and lot. Hist. 1. The customary payment of a share
of taxes based on one's ability. 2. A municipal tax on
the right to vote.
Scotch marriage. See MARRIAGE (1).
Scotch verdict. See NOT PROVEN. scripto veljuramento
scottare (sb-tair-ee), vb. [Law Latin] Hist. To pay a
tax.
SCPA. abbr. SEMICONDUCTOR CHIP PROTECTION ACT.
scrambling possession. See POSSESSION.
scrap value. See salvage value under VALUE (2).
scratch-and-dent loan. See LOAN.
scratching the ticket. A party member's rejection of a
candidate on a regular party ticket by canceling the
ca ndidate' s name or by voting for one or more nominees
of the opposing political party.
scrawL See SCROLL (3).
screening committee. See COMMITTEE.
screening grand jury. See GRAND JURY.
screening mechanism. See ETHICAL WALL.
screen-scraping, n. Intellectual property. The practice
ofextracting data directly from one website and dis
playing it on another website. -The source website's
database is not used only the display. Screen-scrap
ing may infringe the extracted website-owner's copy
right in the contents. screen-scrape, vb.
scriba (skrI-b~), n. [Latin] Roman law. A court or office
clerk; a scribe; a secretary . In England, the scriba regis
was the king's secretary. Cf. NOTARIUS.
scribe. See SECRETARY (3).
scribere est agere (skrI-bJ-ree est aj-J-ree). [Latin] Hist.
To write is to act.
"But now it seems clearly to be agreed. that, by the common
law and the statute of Edward III, words spoken amount
only to a high misdemeanor, and no treason. For they may
be spoken in heat, without any intention .... If the words
be set down in writing. it argues more deliberate inten
tion; and it has been held that writing is an overt act of
treason; for scribere est agere. But even in this case the
bare words are not the treason, but the deliberate act of
writing them." 4 William Blackstone, Commentaries on the
Laws ofEng/and 80 (1769).
Scribes. See AMERICAN SOCIETY OF WRITERS ON LEGAL
SUBJECTS.
scrip.(lSc) 1. A document that entitles the holder to
receive something ofvalue. See LAND SCRIP. 2. Money,
esp. paper money, that is issued for temporary use.
Internet scrip. 1. Value that may be exchanged over
the Internet but may not be exchanged for money.
Internet scrip is analogous to coupons or bonus points
that can be exchanged by a consumer for goods or
services but that have no cash value. 2. See e-money
under MONEY. Also termed online scrip.
on-line scrip. See Internet scrip.
scrip dividend. See DIVIDEND.
script. (I4c) L An original or principal writing. 2. Hand
writing.
scripto (skrip-toh). [Latin] Hist. By writing.
scripto vel juramento (skrip-toh vel juur-J-men-toh).
[Law Latin] Hist. By writ or oath. _ The phrase appeared
in reference to the mode of proof required in certain
cases.
1466 scriptum indentatum
scriptum indentatum (sicrip-t;)m in-den-tay-t;)m). [Law
Latin "indented writing"] Hist. An indenture.
scrivarius. Law Latin. A notary public.
scrivener (skriv-[;)]-n;)r). (14c) A writer; esp., a profes
sional drafter ofcontracts or other documents.
money scrivener. See MO~EY SCRIVENER.
scrivener's error. See clerical error under ERROR (2).
scrivener's exception. (1978) An exemption from the
attorney-client privilege whereby the privilege does
not attach ifthe attorney is retained solely to perform
a ministerial task for the client, such as preparing a
statutory-form deed. [Cases: Privileged Communica
tions and Confidentiality ~129, 131.]
scroll, n. (ISc) 1. A roll of paper, esp. one containing a
writing; a list. 2. A draft or outline to be completed at
a later time. 3. A written mark; esp., a character affixed
to a signature in place ofa seal. -Also termed (in sense
3) scrawl.
Scroops's Inn. See SERJEANT'S INN.
scrnet-roll (skroo-;)t-rohl). Hist. The record of bail
accepted in a habeas corpus case.
scrutator (skroo-tay-taf), n. [Latin ff. scrutari "to search"]
Hist. A bailiff Of officer who enforces the king's water
rights, as by supervising wreckage, flotsam, and jetsam;
a customs officer.
S.Ct. abbr. 1. SUPREME COURT. 2. Supreme Court
Reporter.
scutage (skyoo-tij), n. [fro Latin scutum "a shield"] Hist.
1. A monetary payment levied by the king on barons as
a substitute for some or all ofthe knights to be supplied
to the king by each baron . This payment seems to date
from the 12th century, Henry II (1154-1189) haVing
levied five scutages in the first 11 years ofhis reign. 2.
A fee paid by a tenant-in-chiefby knight-service in lieu
ofserving in a war. 3. A tax on a knight's estate to help
furnish the army. Also termed escuage.
"Scutage ... Shieldmoney, in mediaeval feudal law, a
payment in lieu of military service, paid by a tenantin
chief in respect of the service of knights which he owed
to the Crown. His personal obligation to serve could not
be discharged by scutage but only by fine. Payment of
scutage, though known in France and Germany, was most
highly developed in England where it became a general tax
on knights' estates at rates which by the thirteenth century
were standardized. King John demanded frequent and
heavy scutages and Magna Carta forbade the levying of
scutage Without the consent of a general council. Scutage
was diVided between the King and the tenants-inchief who
gave personal service in the campaign. It became obsolete
by the fourteenth century." David M. Walker, The Oxford
Companion to Law 1121 (1980).
scutagio habendo. See DE SCUTAGIO HABENDO.
scyra (shy-r;), n. [Law Latin "shire"] Hist. 1. A county;
shire. 2. A county's inhabitants.
S.D. abbr. Southern District, in reference to U.S. judicial
districts.
sid b/l. abbr. Sight draft with bill oflading attached. See
sight draft under DRAFT. S.E. abbr. SOUTH EASTERK REPORTER.
sea. l. The ocean <on the sea>. 2. A large landlocked part
of the ocean; a large body of salt water smaller than a
regular ocean <the Mediterranean Sea>. 3. The ocean
swell <a rough sea>. 4. An extremely large or extended
quantity <a sea ofdocuments>.
free seas. See high seas.
high seas. The seas or oceans beyond the jurisdiction
ofany country. _ Under traditional international law,
the high seas began 3 miles from the coast; today the
distance is generally accepted as 12 miles. Under the
1982 U.N. Convention on the Law ofthe Sea, coastal
shores now have a 200-mile exclusive economic
zone. Also termed free seas; open seas; main sea.
[Cases: Criminal Law (;:;::::>97(3); International Law
C=-S,7.]
main sea. Archaic. The open ocean; high seas.
navigable sea. See NAVIGABLE SEA.
open seas. See high seas.
territorial sea. See territorial waters under WATER.
seabed. The sea floor; the ground underlying the ocean,
over which nations may assert sovereignty, esp. if
underlying their territorial waters.
sea brief. See SEA LETTER.
seagoiug vessel. See VESSEL.
seal, n. (Be) 1. A fastening that must be broken before
access can be obtained; esp., a device or substance
that joins two things, usu. making the seam impervi
ous. -Also termed common-law seal. 2. A piece of
wax, a wafer, or some other substance affixed to the
paper or other material on which a promise, release, or
conveyance is written, together with a recital or expres
sion of intention by which the promisor, releasor, or
grantor manifests that a piece ofwax, wafer, or other
substance is a seal. _ The purpose ofa seal is to secure
orprove authenticity. 3. A design embossed or stamped
on paper to authenticate, confirm, or attest; an impres
sion or sign that has legal consequence when applied to
an instrument. [Cases: Seals ~ 1.]
"The use ofthe seal in England seems to have begun after
the Norman Conquest, spreading from royalty and a few
of the nobility to those of lesser rank. Originally a seal
often consisted of wax bearing the imprint of an individu
alized signet ring, and in the seventeenth century Lord
Coke said that wax without impression was not a seal. But
in the United States the courts have not required either
wax or impression. Impressions directly on the paper were
recognized early and are still common for notarial and
corporate seals, and gummed wafers have been widely
used. In the absence of statute decisions have divided on
the effectiveness of the written or printed word 'seal,' the
printed initials 'L.S: (locus Sigilli, meaning place of the
seal), a scrawl made with a pen (often called a 'scroll')
and a recital of sealing. Most states in which the seal is
still recognized now have statutes giving effect to one or
more such devices." Restatement (Second) of Contracts
96 emt. a (1979).
"The timehonoured form of seal was a blob of wax at the
foot of the document, bearing an imprint of some kind,
often a crest or motto. The use of wax was not, however,
necessary for a seal. and any mark or impression on the
1467
paper was sufficient as long as it was made with the inten
tion of affixing a seal. Recent English cases have been
willing to find the necessary intention in circumstances
where courts in the past would almost certainly have
declined; so much so that it may now be the common law
that a document purporting to be executed as a deed but
lacking actual sealing will be regarded as sealed as long
as it contains a printed or written indication of where the
mark or impression constituting the seal should be placed
if it were to be affixed." Peter Butt, Land Law 481-82 (2d
ed,1988).
corporate seal. (I8c) A seal adopted by a corporation
for executing and authenticating its corporate and
legal instruments. [Cases: Corporations (,':,'::)51.]
great seal. 1. The official seal of the United States, of
which the Secretary ofState is the custodian. -Also
termed seal ofthe United States. [Cases: United States
(::::::5.5.] 2. The official seal of a particular state.
Also termed seal ofthe state; state seal. [Cases: States
(:::-;:,23.] 3. The official seal of Great Britain, of which
the Lord Chancellor is the custodian.
notary seal. See NOTARY SEAL
private seal. (l6c) A corporate or individual seal, as dis
tinguished from a public seaL [Cases: Seals
public seal. (16c) A seal used to certify documents
belonging to a public authority or government
bureau.
quarter seal. A seal (originally a quarter section ofthe
great seal) maintained in the Scotch chancery to be
used on particular grants from the Crown. See great
seal (3).
seal ofthe state. See great seal (2).
seal ofthe United States. See great seal (1).
state seal. See great seal (2).
wafer seal. A plastic or paper disk, usu. red or gold,
affixed to a legal document as a substitute for a wax
seal. _ Wafers are more common in the U.K. than in
the U.S. Sometimes shortened to wafer.
seal, vb. (14c) 1. To authenticate or execute (a document)
by use ofa seaL 2. To close (an envelope, etc.) tightly; to
prevent access to (a document, record, etc.).
sealed and delivered. See SIGNED, SEALED, AND DELIV
ERED.
sea lane. Int'l & maritime law. A deSignated course or
regularly used route for ships, esp. in restricted waters
such as harbors and straits, _ Although sea lanes have
obvious safety advantages, they were long resisted by
sea captains, who saw them as a threat to their freedom
to navigate.
sea law. See MARITIME LAW |
sea captains, who saw them as a threat to their freedom
to navigate.
sea law. See MARITIME LAW.
sealed bid. See BID (2).
sealed-container rule. (1961) Products liability. The prin
ciple that a seller is not liable for a defective product if
the seller receives the product from the manufacturer
and sells it without knowing of the defect or having a
reasonable opportunity to inspect the product. [Cases:
Products Liability (:::::: 168, 175; Sales (::::::430.J seal of cause
sealed contract. See contract under seal under
CONTRACT.
sealed instrument. (17c) 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. -The common-law distinction between
sealed and unsealed instruments has been abolished
by many states, and the UCC proVides that the laws
applicable to sealed instruments do not apply to con
tracts for the sale of goods or negotiable instruments.
UCC 2-203. See contract under seal under CONTRACT.
[Cases: Contracts G~36; Seals (::::::, 1.]
"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).
"In medieval England a wax seal may have performed [the
functions of a formality] tolerably well, But in the United
States few people owned or used a seal and the ritual
deteriorated to the point that wax was dispensed with
and printing houses decorated the signature lines of their
standard forms with the printed letters 'L.S.' for locus sigilli
(place of the sea\), Perfunctory invocation of the rules for
sealed documents called into question the seal's utility
in making promises enforceable," E, Allan Farnsworth,
Changing Your Mind: The Law of Regretted Decisions 46
(l998).
sealed-record statute. See CONFIDENTIALITY STATUTE.
sealed testament. See mystic will under WILL.
sealed verdict. See VERDICT.
sealed will. See mystic will under WILL.
sealetter. Hist. A manifest issued during a war by author
ities ofa port where a neutral vessel is fitted, certifying
the vessel's nationality, specifying the nature of and
destination of the vessel's cargo, and allOWing the vessel
to sail under the neutral flag ofits owner. -The last sea
letter was issued at the Port of New York in 1806, and
the use of sea letters was discontinued by proclama
tion of President James Madison. -Also spelled sea-
letter. Also termed sea brief; sea pass; passport.
"Our laws require masters of vessels, on entering a port
for traffic, to lodge with the consul their registers, sea
letters, and passports ...." Theodore D. Woolsey, Intro
duction to the Study ofInternational Law 161-62 (5th
ed. 1878).
sealing ofrecords. (1953) The act or practice ofoffiCially
preventing access to particular (esp. juvenile-criminal)
records, in the absence of a court order. Cf. EXPUNGE
ME~T OF RECORD. [Cases: Records (;:::'32.]
seal of cause. Scots law. The seal of a burgh court, by
which a royal burgh could, consistently with its charter
powers, create a subordinate corporation by charter.
1468 seal of the state
The seal of cause was most commonly used to create
charitable corporations and craft guilds.
seal of the state. See great seal (2) under SEAL.
seal of the United States. See great seal (1) under SEAL.
seaman. Maritime law. Under the Jones Act and the
Longshore and Harbor Workers' Compensation Act,
a person who is attached to a navigating vessel as an
employee below the rank of officer and contributes to
the function of the vessel or the accomplishment of
its mission . Seamen's are covered under the
Jones Act and the general maritime law. Also termed
crew member; mariner; member ofa crew. See JONES
ACT. Cf. STEVEDORE. [Cases: Seamen
'The Jones Act plaintiff must be a 'seaman' who is injured
(or killed) 'in the course of his employment.' The 'course
of ... employment' requirement at least excluded pas
sengers, guests, trespassers, pirates (unless of course
the pirate was suing his own employer) and so on. Who
else might be excluded (or included) was, as a matter of
initial construction, impossible to say. After a half-century
of litigation the answer to the riddle is not apparent. The
Supreme Court has alternated between giving the term
'seaman' an exceedingly broad construction and giving it
a much narrower one. Consequently defendants have been
encouraged to argue, in all but the most obvious cases,
that plaintiff is not aJones Act seaman and that the action
must be dismissed. Thus there has always been, there
continues to be, and presumably there will go on being a
substantial volume of depressing litigation of this type."
Grant Gilmore & Charles L. BlackJr., The Law ofAdmiralty
6-21, at 328 (2d ed. 1975).
"The traditional seaman is a member of the crew of a
merchant vessel .. , . However, vessels are not limited in
their functions to the transportation of goods over water.
The performance by a vessel of some other mission, such
as operating as a cruise ship, necessitates the presence
aboard ship of employees who do not 'man, reef and steer'
the vessel .... Exploration for oil and gas on navigable
waters has led to further expansion of the concept of a
'seaman.' In 1959, in the celebrated case of Offshore Oil Co.
v. Robinson, 266 F.2d 769 (5th Cir, 1959), the Fifth Circuit
held that floating drilling structures are 'vessels' and that
the amphibious oil workers aboard them are entitled to the
seaman's remedies against their employers and the opera
tors of the 'vessels' on which they are employed." Frank l.
Maraist, Admiralty in a NutsheJl178-80 (2d ed. 1988).
able-bodied seaman. An experienced seaman who
is qualified for all seaman's duties and certified by
an inspecting authOrity. Abbr. AB; ABS. Also
termed able seaman; bluewater seaman. [Cases:
Seamen 11, 29.)
merchant seaman. A sailor employed by a private
vessel, as distinguished from one employed in public
or military service. [Cases: Seamen (;::;;>2.J
ordinary seaman. A seaman who has some experi
ence but who is not proficient enough to be classified
as an able-bodied seaman. Abbr. OS; OD. [Cases:
Seamen (;::;;> 11, 29.J
seaman's will. See soldier's will under WILL.
sea pass. See SEA LETTER.
search, n. (14c) 1. Criminal procedure. An examination of
a person's body, property, or other area that the person
would reasonably be expected to consider as private,
conducted by a law-enforcement officer for the purpose offinding evidence of a crime . Because the Fourth
Amendment prohibits unreasonable searches (as well
as seizures), a search cannot ordinarily be conducted
without probable cause. [Cases: Searches and Seizures
(:;::, 13.]
"It must be recognized that whenever a police officer
accosts an indiVidual and restrains his freedom to walk
away, he has 'seized' that person, And it is nothing less
than sheer torture of the English language to suggest that
a careful exploration of the outer surfaces of a person's
clothing all over his or her body in an attempt to find
weapons is not a 'search.'" Terry v. Ohio, 392 U.S. 1, 16,
88 S.Ct. 1868, 1877 (1968) (Warren, j.).
administrative search. (1963) A search of public or
commercial premises carried out by a regulatory
authority to enforce compliance with health, safety,
or security regulations. -The probable cause required
for an administrative search is less stringent than that
required for a search incident to a criminal investi
gation. -Also termed regulatory search; inspection
search. [Cases: Searches and Seizures (;::;-79.J
border search. (1922) 1. A search conducted at the
border of a country, esp. at a checkpoint, to exclude
illegal aliens and contraband. [Cases: Aliens, Immi
gration, and Citizenship (;::;;>440-446; Customs
Duties (;::;;> 126(1).J
"[W)arrantless searches and seizures conducted at national
boundaries are permitted under the general authority of
the United States to ensure the integrity of its borders. As
the Supreme court stated in Carroll v. United States, such
activity ensures 'national self-protection reasonably requir
ing one entering the country to identify himself as entitled
to come in, and his belongings as effects which may be
lawfully brought in.' [267 U.S. 132, 154,45 S.Ct. 280, 285
(1925).] Thus, the right to remain silent and protect one's
personal belongings from government intrusion, normally
afforded constitutional protection, are surrendered at
the border." Charles H. Whitebread. Criminal Procedure
12.02, at 227 (1980).
2. Loosely, a search conducted near the border of a
country. Generally, searches near the U.S. border
are treated no differently from those conducted else
where in the country.
checkpOint search. (1973) 1. A search anywhere on
a military installation. 2. A search in which police
officers set up roadblocks and stop motorists to ascer
tain whether the drivers are intoxicated. [Cases: Auto
mobiles (;::;;>349(9).]
Chimel search. See protective search.
consent search. (1965) A search conducted after a
person with the authority to do so voluntarily waives
Fourth Amendment rights . The government has the
burden to show that the consent was given freely
not under duress. Bumper v. North Carolina, 391
U.S. 543, 548-49, 88 S.Ct. 1788, 1792 (1968). Also
termed consensual search. [Cases: Searches and
Seizures (;::;;> 171-186.J
'The voluntariness of a consent to search is 'to be deter
mined from the totality of all the circumstances.' [Schneck
loth v. Bustamante, 412 U.S. 218, 93 S.Ct. 2041 (1973).]
Among the factors to be considered in determining the
effectiveness of an alleged consent to search are whether
the defendant (1) has minimal schooling or was of low
1469
intelligence; (2) was mentally ill or intoxicated; (3) was
under arrest at the time the consent was given; (4) was
overpowered by officers, handcuffed, or similarly subject
to physical restriction; (5) has seized from him by the
police the keys to the premises thereafter searched; (6)
employed evasive conduct or attempted to mislead the
police; (7) denied guilt or the presence of any incriminatory
objects in his premises; (8) earlier gave a valid confession
or otherwise cooperated, as by instigating the search, or
at least the investigation leading to the search; (9) was
hesitant in agreeing to the search; or (10) was refused his
request to consult with counsel. The presence of some
of these factors is not controlling, however, as each case
must stand or fall on its own special facts."Jerold H.lsrael
& Wayne R. LaFave, Criminal Procedure in a Nutshell 141-42
(5th ed. 1993).
constructive search. A subpoena of a corporation's
records.
"[I]t is settled that the so-called 'constructive search'
involved in an administrative subpoena of corporate
books or records constitutes a 'search' or 'seizure' within
the meaning of the Fourth Amendment." 68 Am. Jur. 2d
Searches and Seizures 44, at 674 (1993).
emergency search. (1971) A warrantless search con
ducted by a police officer who has probable cause and
reasonably believes that, because ofa need to protect
life or property, there is not enough time to obtain
a warrant. See EMERGENCY DOCTRINE (3). [Cases:
Searches and Seizures
exigent search (eks-;:l-j;:lnt). (1974) A warrantless search
carried out under exigent circumstances, such as
an imminent danger to human life or a risk of the
destruction of evidence. See exigent circumstances
under CIRCUMSTANCE. [Cases: Controlled Substances
105, 114, 123, 130; Searches and Seizures
42.]
illegal search. See unreasonable search.
inventory search. (1966) A complete search of an arrest
ee's person before that person is booked into jail. All
possessions found are typically held in police custody.
[Cases: Automobiles ~'J349.5(12); Controlled Sub
stances (;=117; Searches |
ases: Automobiles ~'J349.5(12); Controlled Sub
stances (;=117; Searches and Seizures (;=58.]
no-knock search. (1970) A search of property by the
police without knocking and announcing their
presence and purpose before entry. A no-knock
search warrant may be issued under limited cir
cumstances, as when a prior announcement would
probably lead to the destruction of the objects searched
for, or would endanger the safety of the police or
another person. [Cases: Searches and Seizures
143.1; Controlled Substances 153.]
private search. A search conducted by a private person
rather than by a law-enforcement officer . Items
found during a private search are generally admis
sible in evidence ifthe person conducting the search
was not acting at the direction of a law-enforcement
officer. [Cases: Searches and Seizures (;=33.J
protective search. (1967) A search of a detained suspect
and the area within the suspect's immediate control,
conducted to protect the arresting officer's safety
(as from a concealed weapon) and often to preserve
evidence . A protective search can be conducted search of patentability
without a warrant. Chimel v. California, 395 U.S. 752,
89 S.Ct. 2034 (1969). Also termed search incident to
arrest; Chimel search (sh;:l-mel). [Cases: Arrest (;:::)63,
63.5(8); Searches and Seizures (;=70.]
regulatory search. See administrative search.
search incident to arrest. See protective search.
sector search. See zone search.
shakedown search. (1952) A usu. unannounced and
warrantless search for illicit or contraband material
(such as weapons or drugs) in a prisoner's cell.
Often shortened to shakedown. [Cases: Prisons
134.J
strip search. (1955) A search of a person conducted after
that person's clothes have been removed, the purpose
usu. being to find any contraband the person might be
I hiding. [Cases: Controlled Substances 126.]
I
unreasonable search. (18c) A search conducted without
probable cause or other considerations that would
make it legally permissible. -Also termed illegal ,
I search.
voluntary search. (1936) A search in which no duress
or coercion was applied to obtain the defendant's
consent. See consent search.
warranted search. (1968) A search conducted under
authority of a search warrant. [Cases: Searches and
Seizures (;=141.]
warrantless search. (1950) A search conducted without
obtaining a proper warrant. Warrantless searches
are permissible under exigent circumstances or when
conducted incident to an arrest. See exigent circum
stances under CIRCUMSTANCE; protective search.
Arrest (;=71.1(1); Searches and Seizures
42.1.]
zone search. A search of a crime scene (such as the
scene of a fire or explosion) by dividing it up into
specific sectors. -Also termed sector search.
2. An examination of public documents or records
for information; esp., TITLE SEARCH. 3. Int'llaw.
The wartime process of boarding and examining
the contents of a merchant vessel for contraband .
A number of treaties regulate the manner in which
the search must be conducted. See RIGHT OF SEARCH.
[Cases: War and National Emergency (::=>20.]
search-and-seizure warrant. See SEARCH WARRANT.
search book. (1912) A lawbook that contains no state
ments of the law but instead consists of lists or tables
of cases, statutes, and the like, used simply to help a
resean:her find the law. Most indexes, other than
index-digests, are search books.
search committee. See COMMITTEE.
search incident to arrest. See protective search under
SEARCH.
search of patentability. See PATENTABILITY SEARCH.
1470 search report
search report. Patents. A list of prior-art documents
cited by the patent examiner during the patent appli
cation's preliminary examination.
search warrant. (18c) Criminal law. A judge's written
order authorizing a law-enforcement officer to conduct
a search ofa specified place and to seize evidence. See
Fed. R. Crim. P. 41. -A\so termed search-and-sei
zure warrant. See WARRANT (1). [Cases: Searches and
Seizures (;~,101.]
anticipatory search warrant. (1912) A search warrant
based on an affidavit showing probable cause that
evidence of a certain crime (such as illegal drugs)
will be located at a specific place in the future. [Cases:
Searches and Seizures (;::::::-122.]
blanket search warrant. (1921) 1. A single search
warrant that authorizes the search ofmore than one
area. 2. An unconstitutional warrant that authorizes
the seizure of everything found at a given location,
without specifying which items may be seized.
covert-entry search warrant. A warrant authorizing
law-enforcement officers to clandestinely enter private
premises in the absence of the owner or occupant
without prior notice, and to search the premises
and collect intangible evidence, esp. photographs
and eyewitness information. -Although previously
used in federal criminal investigations, these types
of warrants were first given express statutory author
ity by the USA Patriot Act. 18 USCA 3103a. Infor
mation gathered while a sneak-and-peek
warrant can later be used to support a search warrant
under which physical evidence can be seized. -Also
termed sneak-and-peek search warrant; surreptitious
entry search warrant. lCases: Searches and Seizures
(;::) 143.1.J
no-knock search warrant. (1972) A search warrant
that authorizes the police to enter premises without
knocking and announcing their presence and purpose
before entry because a prior announcement would
lead to the destruction of the objects searched for or
would endanger the safety of the police or another
person. Cf. KNOCK-AND-ANNOUNCE RULE .[Cases:
Searches and Seizures (;:::: 143.1.]
sneak-and-peek search warrant. See covert-entry
search warrant
surreptitious-entry search warrant. See covert-entry
search warrant.
search-warrant affidavit. See AFFIDAVIT.
sea reeve (see reev). Hist. An officer appointed to watch
the shore and enforce a lord's maritime rights, includ
ing the right to wreckage.
sea rover. 1. A person who roves the sea for plunder; a
pirate. 2. A pirate vessel.
Sears-Compco doctrine. The principle that Congress,
by passing copyright, trademark, and patent laws, has
preempted some state-law protection of information
that is not protected by those statutes. Sears, Roebuck
& Co. v. Stiffel Co., 376 U.S. 225, 84 S.Ct. 784 (1964); Compco Corp. v. Day-Brite Lighting, Inc., 376 U.S. 234,
84 S.Ct. 779 (1964). The doctrine reflects a congres
sional policy decision that public access to informa
tion outweighs private economic incentives to collect
and disseminate it. Itlimits how far states may protect
against misappropriation. [Cases: Copyrights and
Intellectual Property (;:::: 109.]
seasonable, adj. (ISc) Within the time agreed on; within
a reasonable time <seasonable performance of the
contract>.
seasonal employment. See EMPLOYMENT.
seat, n. 1. Membership and privileges in an organiza
tion; esp., membership on a securities or commodities
exchange <her seat at the exchange dates back to 1998>.
[Cases: Exchanges(r~7.]2. The center ofsome activity
<the seat ofgovernment>.
seated land. See LAND.
seat of government. The nation's capital, a state capital,
a county "eat, or other location where the principal
offices of the national, state, and local governments are
located. [Cases: Counties (;::::;27; States
seaward. See CUSTOS MARIS.
seaworthy, adj. (Of a vessel) properly equipped and suf
ficiently strong and tight to resist the perils reasonably
incident to the voyage for which the vesseJ is insured.
_ An implied condition ofmarine-insurance policies,
unless otherwise stated, is that the vessel will be sea
worthy. [Cases: Seamen (;:::>9; Shipping (;:::>80,121.]
seaworthiness, n.
seaworthy vessel. See VESSEL.
sec. abbr. 1. (all cap.) SECURITIES AND EXCHANGE COM
MISSION. 2. Section. See SECTION (1).
secession. The process or act of withdrawing, esp. from
a religiOUS or politicaJ association <the secession from
the established church> <the secession of 11 states at
the time ofthe Civil War>.
seck (sek), adj. Hist. 1. Lacking the right or remedy of
distress. 2. Lacking profits, usu. due to a reversion
without rent or other service. See RENT SECK.
second, n. Parliamentary law. 1. A statement by a member
other than a motion's maker that the member also
wants the assembly to consider the motion <Is there a
second to the motion?>. 2. Criminal law. A person who
directs, assists, or supports another engaged in a duel.
See DUEL (2). second, vb.
Second Amendment. The constitutional amendment,
ratified with the Bill of Rights in 1791, guaranteeing the
right to keep and bear arms as necessary for securing
freedom through a well-regulated militia. See RIGHT
TO BEAR ARMS. [Cases; Weapons (;:::> 1.]
secondary, adj. (14c) (Of a position, status, use, etc.) sub
ordinate or subsequent.
secondary, n. Hist. An officer of the courts ofthe King's
Bench and common pleas, so called because he was next
to the chief officer . By the Superior Courts (Officers)
1471 secondary term
Act (1837), the secondary office was abolished. St. 7
WilL 4; 1 Vict., ch. 30.
secondary abuse. See ABDSE.
secondary activity. Labor law. A union's picketing or
boycotting of a secondary or neutral party, with the
goal ofplacing economic pressure on that party so that
it will stop doing business with the employer that is the
primary subject ofthe labor dispute . Secondaryactiv
ities are forbidden by the Labor-Management Relations
Act. 29 USCA 158(b)(4). See secondary boycott under
BOYCOTT; secondary picketing under PICKETING. Cf.
PRIMARY ACTIVITY. [Cases: Labor and Employment
C-::> 1411, 1412.]
secondary affinity. See AFFINITY.
secondary amendment. See AMENDMENT (3).
secondary assumption ofrisk. See ASSUMPTION OF THE
RISK.
secondary authority. See AUTHORITY (4).
secondary beneficiary. See contingent beneficiary (2)
under BENEFICIARY.
secondary boycott. See BOYCOTT.
secondary consideration. See SECONDARY FACTOR.
secondary conveyance. See CONVEYANCE.
secondary creditor. See CREDITOR.
secondary devise. See alternative devise under DEVISE.
secondary distribution. See DISTRIBUTION.
secondary easement. See EASEMENT.
secondary-effects test. A court's analysis ofa regulation
affecting free-speech interests to determine whether
it is actually intended to diminish or eliminate an
indirect harm flowing from the regulated expression.
The test is used to distinguish content-specific regula
tion from content-neutral regulation. A regulation that
is facially content-specific may be treated as content
neutral if its purpose is to diminish or eliminate a sec
ondary effect ofthe speech, such as a zoning regulation
for adult theaters when it is intended to limit crime. The
test was first enunciated in City ofRenton v. Playtime
7heatres, Inc., 475 U.S. 41, 106 S.Ct. 925 (1986). [Cases:
Constitutional Law (:::::>2213.]
secondary enforcement. See secondary right under
RIGHT.
secondary evidence. See EVIDENCE.
secondary factor. (usu. pl.) Patents. Objective evidence
that courts consider in determining a patent claim's
nonobviousness . Secondary factors include "com
mercial success, long-felt but unsolved need, failure of
others, and unexpected results." Graham v. John Deere
Co., 383 US. 1, 17-18 (1966). -Also termed secondary
consideration. [Cases: Patents (:::::> 36.1.]
secondary insured. See additional insured under
INSURED.
secondary insurer. See excess insurer under INSURER. secondary invention. Patents. An invention that uses
or incorporates established elements or combinations
to achieve a new and useful result. [Cases: Patents
174.)
secondary lender. A wholesale mortgage buyer who pur
chases first mortgages from banks and savings-and
loan associations, enabling them to restock their money
supply and loan more money.
secondary liability. See LIABILITY.
secondary-line competition. See vertical competition
under COMPETITION.
secondary-line injury. Antitrust. Under the price-dis
crimination provisions of the Robinson -Patman Act,
the act of hindering or seeking to hinder competition
among a seller's customers by selling substantially the
same products at favorable prices to one customer, or a
|
among a seller's customers by selling substantially the
same products at favorable prices to one customer, or a
select group of customers, to the detriment ofothers. 15
USCA 13(a). A secondary-line injury, which refers
to competition among the seller's customers, is distin
guishable from a primary-line injury, which refers to
the anticompetitive effects that predatory pricing has
on the direct competitors of the seller. Cf. PRIMARY
LINE INJURY.
secondary market. See MARKET.
secondary meaning. Intellectual property. A special
sense that a trademark or tradename for a business,
goods, or services has acquired even though the trade
mark or trade name was originally merely descriptive
and therefore not protectable . The term does not refer
to a subordinate or rare meaning, but rather to a later
meaning that has been added to the original one borne
by the mark or name and that has now become in the
market its usual and primary meaning. Also termed
special meaning; trade meaning. [Cases: Trademarks
(:::::> 1032.J
"Secondary meaning is association, nothing more. It exists
only in the minds of those of the public who have seen or
known or have heard of a brand of goods by some name
or sign and have associated the two in their minds." Harry
D. Nims, The Law of Unfair Competition and TradeMarks
105 (1929).
secondary mortgage market. See MORTGAGE MARKET.
secondary motion. See MOTION (2).
secondary obligation. See OBLIGATION.
secondary offering. See OFFERING.
secondary party. Commercial law. 1. A party not pri
marily liable under an instrument, such as a guarantor.
[Cases: Bills and Notes <::-='49; Guaranty (:::::>33.] 2. The
drawer or indorser ofa negotiable instrument.
secondary picketing. See PICKETING.
secondary register. See SUPPLEMENTAL REGISTER.
secondary reserve ratio. See RESERVE RATIO.
secondary right. See RIGHT.
secondary strike. See STRIKE.
secondary term. Oil & gas. The term of an oil-and-gas
lease after production has been established, typically
1412 secondary trading
lasting "as long thereafter as oil and gas is produced
from the premises." See HABENDUM CLAUSE; PRIMARY
TERM. [Cases: Mines and Minerals C=>73.5.]
secondary trading. See TRADING.
secondary use. See shifting use under USE (4).
second chair, n. (1968) A lawyer who helps the lead
attorney in court, usu. by examining some of the wit
nesses, arguing some ofthe points oflaw, and handling
parts of the voir dire, opening statement, and closing
argument <the young associate was second chair for
the fraud case>. -second-chair, vb.
second-collision doctrine. See CRASHWORTHlNESS
DOCTRINE.
second cousin. See COUSIN.
second-degree amendment. See secondary amendment
under AMENDMENT (3).
second-degree manslaughter. See involuntary man
slaughter under MANSLAUGHTER.
second-degree murder. See MURDER.
second-degree principal. See principal in the second
degree under PRINCIPAL (2).
second deliverance. See DELIVERANCE.
second delivery. See DELIVERY.
second distress. See DISTRESS.
secondhand evidence. See HEARSAY.
second-impact doctrine. See CRASHWORTHINESS
DOCTRINE.
second lien. See LIEN.
second-look doctrine. (1962) 1. WAIT-AND-SEE PRIN
CIPLE. 2. An approach that courts use to monitor the
continuing effectiveness or validity of an earlier order.
For example, a family court may reconsider a waiver
of alimony, and a federal court may reconsider a law
that Congress has passed a second time after the first
law was struck down as unconstitutionaL
second mortgage. See MORTGAGE.
second offense. See OFFENSE (1).
second-parent adoption. See ADOPTION.
second-permittee doctrine. Insurance. The principle
that, when a third person is allowed to use an insured's
car by permission granted by someone else to whom
the insured gave permission to use the car, the third
person's use of the car will be a permissive use, under
the insured's automobile-liability-insurance policy, as
long as that use falls within the scope of the permis
sion originally given by the insured.lCases: Insurance
C=>2666.]
seconds, n. Commercial law. Goods that are defective or
nonconforming because they do not meet a recognized
standard.
second-step freezeout. See FREEZEOUT.
second surcharge. See SURCHARGE.
second-tier patent. See UTILITY MODEL. second user. See JUNIOR USER.
secrecy. The state or quality of being concealed, esp.
from those who would be affected by the concealment;
hidden.
secret, n. (14c) 1. Something that is kept from the knowl
edge of others or shared only with those concerned.
See STATE SECRET; TRADE SECRET. 2. Information that
cannot be disclosed without a breach of trust; specif.,
information that is acquired in the attorney-client
relationship and that either (1) the client has requested
be kept private or (2) the attorney believes would be
embarrassing or likely to be detrimental to the client
ifdisclosed. Under the ABA Code of Professional
Responsibility, a lawyer usu. cannot reveal a client's
secret unless the client consents after full disclosure.
DR 4-101. Cf. CONfIDENCE (3). [Cases: Attorney and
Client C=>32(l3).]
secretariU5 (sek-ra-tair-ee-as), n. [Law Latin] See APOC
RISARIUS.
secretary. 1. An administrative assistant. 2. A corporate
officer in charge ofofficial correspondence, minutes of
board meetings, and records of stock ownership and
transfer. -Also termed clerk ofthe corporation. [Cases:
Corporations 3. Parliamentary law. An officer
charged with recording a deliberative assembly's pro
ceedings. Also termed clerk; recorder; recording sec
retary; recording officer; scribe.
corresponding secretary. An officer in charge of an
organization's correspondence, usu. including notices
to members.
financial secretary. 1. An officer in charge of billing,
collecting, and accounting for dues from the members.
2. TREASURER.
Secretary General. The chief administrative officer of
the United Nations, nominated by the Security Council
and elected by the General Assembly.
Secretary ofAgriculture. The member ofthe President's
cabinet who heads the U.S. Department of Agriculture.
[Cases: Agriculture C=>2.]
Secretary ofCommerce. The member ofthe President's
cabinet who heads the U.S. Department ofCommerce.
[Cases: United States C-;:;)32.]
Secretary of Defense. The member ofthe President's
cabinet who heads the U.S. Department of Defense.
[Cases: C'nited States C=>32.]
Secretary of Education. The member ofthe President's
cabinet who heads the U,S. Department of Education.
[Cases: United States
secretary of embassy. A diplomatic officer appointed
as secretary or assistant, usu. to an ambassador or
minister plenipotentiary.
Secretary of Energy. The member of the President's
cabinet who heads the U.S. Department of Energy.
[Cases: United States
Secretary of Health and Human Services. The
member of the President's cabinet who heads the U.S.
1473
Department of Health and Human Services. [Cases:
United States (:::>32.]
Secretary of Homeland Security. The member of the
President's cabinet who heads the u.s. Department of
Homeland Security. [Cases: United States (:::>32.]
Secretary of Housing and Urban Development. The
member of the President's cabinet who heads the U.S.
Department of Housing and Urban Development.
[Cases: United States (:::>32.]
Secretary of Labor. The member of the President's
cabinet who heads the U.S. Department of Labor.
[Cases: United States (:::>32.]
secretary oflegation. An officer employed to attend a
foreign mission and perform certain clerical duties.
Secretary ofState. (ISc) 1. The member of the President's
cabinet who heads the U.S. Department ofState. _ The
Secretary is the first-ranking member ofthe cabinet and
is also a member ofthe National Security Council. He
or she is fourth in line ofsuccession to the presidency
after the Vice President, the Speaker of the House,
and the President pro tempore of the Senate. [Cases:
Vnited States (:::> 32.] 2. A state government official
who is responsible for the licensing and incorporation
ofbusinesses, the administration ofelections, and other
formal duties . The secretary ofstate is elected in some
states and appointed in others. [Cases: United States
(:::>68.J
Secretary ofthe Interior. The member ofthe President's
cabinet who heads the U.S. Department ofthe Interior.
[Cases: United States (:::>32.]
Secretary ofthe Treasury. The member ofthe President's
cabinet who heads the U.S. Department ofthe Treasury.
[Cases: United States C=:>32.]
Secretary of Transportation. The member ofthe Presi
dent's cabinet who heads the U.S. Department ofTrans
portation. [Cases: United States (:::>32.]
Secretary of Veterans Affairs. The member of the
President's cabinet who heads the U.S. Department of
Veterans Affairs. [Cases: United States (:::> 102.]
secret ballot. See BALLOT (2).
secret detainee. See DETAINEE.
secret detention. See DETENTION.
secret diplomacy. See DIPLOMACY.
secrete (si-kreet), vb. (l7c) To conceal or secretly transfer
(property, etc.), esp. to hinder or prevent officials or
creditors from finding it.
secret equity. See latent equity under EQUITY.
secret evidence. See EVIDENCE.
secretion of assets. 'The hiding of property, usu. for the
purpose of defrauding an adversary in litigation or a
creditor.
secret lien. See LIEN.
secret partner. See PARTNER.
Secret Service. See UNITED STATES SECRET SERVICE. Section 8 and 15 declaration
secret session. See executive session under SESSION (1).
secret testament. See mystic will under WILL.
secret trust. See TRUST.
secret will. See mystic will under WILL.
secta (sek-to:l), n. [Latin "suit"] 1. Roman law. A group of
followers, as of a particular religion or school of phi
losophy, law, etc.; a religious sect. 2. His!. People whom
a plaintiff must bring to court to support the plaintiff's
case. 3. Hist. A lawsuit.
secta ad molendinum. See DE SECTA AD MOLENDINUM.
i secta curiae (sek-to:l kyoor-ee-ee). [Latin "suit ofcourt"]
Hisl. Attendance at court, esp. by feudal tenants, who
are obligated to attend the lord's court as jurors or
parties.
secta facienda per Wam quae habet eniciam partem
(sek-to:l fay-shee-en-do:l po:lr i1-o:lm kwee hay-bo:lt i-nish
ee-o:lm pahr-to:lm), n. [Law Latin "suit to be performed by
her who has the eldest part"] Hist. A writ ordering the
eldest heir or coparcener to perform suit and services
for all the coheirs or coparceners.
secta regalis (sek-to:l ri-gay-lis). [Latin "king's suit"] Hist.
An obligation to attend the sheriff's court twice a year,
so called because it had the same functions and juris
diction as the king's court.
sectarian, adj. Ofor relating to a particular religious sect
<sectarian college>.
sectatoris (sek-to:l-tor-is), n. [Latin] Roman law. A sup
porter of a candidate for office, who accompanied a
candidate during a campaign, primarily to impress
voters. PI. sectatores.
secta unica tantum facienda pro pluribus haeredita
tibus (sek-to:l yoo-no:l-ko:l tan-to:lm fay-shee-en- do:l proh
ploor-o:l-bi}s ho:l-red-o:l-tay-to:l-bo:ls), n. [Law Latin "one
suit alone to be performed for several inheritances"]
Hist. A writ exempting the eldest heir, distrained by a
lord to perform several services for the coheirs, from
performing all services but one.
section. (16c) 1. A distinct part or division ofa writing,
esp. a legal instrument. -Abbr. ; sec.; s. 2. Real estate.
A piece of land containing 640 acres, or one square
mile. Traditionally, public lands in the United States
were divided into 640-acre squares, each one called a
"section." -Also termed section ofland.
halfsection. A piece ofland containing 320 acres, laid
off either by a north-and-south or by an east -and-west
line; half a section ofland.
quarter section. A piece ofland containing 160 acres,
laid offby a north-south or east-west line; one quarter
ofa section ofland, formerly the amount usu. granted
to a homesteader. Often shortened to quarter.
Section 8 affidavit. See DECLARATION OF "LSE.
Section 8 and 15 affidavit. See COMBINED 8 AND 15
AFFIDAVIT.
Section 8 and 15 declaration. See COMBINED 8 AND
15 AFFIDAVIT.
Section 8 declaration. See DECLARATION OF USE. |
8 AND
15 AFFIDAVIT.
Section 8 declaration. See DECLARATION OF USE.
section 8(f) agreement. Labor law. A labor contract that
is negotiated between an employer in the construction
business and a union that cannot demonstrate that it
represents a majority of the employees at the time the
contract is executed. 29 USCA 158(f) . This is an
exception to the general rule that an employer need
only negotiate with a union that can demonstrate
majority status. It was enacted in part because of the
nature of the construction industry, in which the
employers may have several different jobs in different
parts of the country, the jobs are typically completed
in a relatively short time, and the workforce is often
transient. Since the workforce often does not have suf
ficient ties to a particular employer to petition for a
certification election, section 8(f) agreements provide
a certain level ofprotection in recognition of that fact.
But section 8(f) agreements are not equivalent to collec
tive-bargaining agreements. For example, the employer
can legally repudiate the agreement at any time, and the
employees may not legally picket to enforce the agree
ment. The main protection such an agreement provides
is a monetary obligation, which can be enforced, if
necessary, in federal court. And if the union achieves
majority status, the section 8(f) agreement will essen
tially become a fully enforceable collective-bargaining
agreement.
Section 15 affidavit. See DECLARATION OF INCOKTEST
ABILITY.
Section 15 declaration. See DECLARATION OF INCON
TESTABILITY.
Section 43(a) action. Trademarks. A private cause of
action codified in the Lanham Trademark Act and
covering a broad spectrum ofdeceptive trade practices,
including passing off, false advertising, trade-dress
infringement, trademark dilution, and cyperpiracy.
15 USCA 1125(a). [Cases: Antitrust and Trade Regu
lation ~::;;61; Trademarks
Section 101 rejection. See REJECTION.
Section 102 rejection. See REJECTION.
Section 103 rejection. See REJECTION.
Section 112 rejection. See vague-and-indefinite rejection
under REJECTIO.'II.
section ofland. See SECTiON (2).
sectis nonfaciendis (sek-tis non fay-shee-en-dis). See DE
SECTIS NON FACIENDIS.
sector (sek-tor), n. [Latin] Roman law. A successful bidder
at a public auction. Pi. sectores.
sector search. See zone search under SEARCH.
secular, adj. Worldly, as distinguished from spiritual
<secular business>.
secular clergy. 1. Clergy who have no particular religious
affiliation or do not belong to a particular religious
denomination. 2. Clergy who live in their parishes and
minister there, as contrasted with regular clergy who
live in monasteries. secular trust. See TRUST (3).
secundum (si-kan-dam), adj. [Latin] Roman law. Accord
ing to; in favor of, as in secundum actorem ("in favor
of the plaintiff').
secundum aequum et bonum (si-kan-dam ee-kwam et
boh-mm). [Latin] Hist. According to what is just and
good.
secundum allegata etprobata (si-kan-dam al-a-gay-ta et
pra-bay-ta). [Latin] Hist. According to what is alleged
and proved.
secundum artem (si-kan-dam ahr-tam). [Latin] Hist.
According to the art or trade.
secundum bonos mores (si-kan-dam boh-nohs mor-eez).
[Latin] Hist. According to good usages; customary.
secundum bonum et aequum (sa-kan-dam boh-nam et
ee-kwam). [Latin] Hist. According to that which is good
and equitable.
secundum chartam conficiendam (sa-kan-dam
kahr-tam kan-fish-ee-eu-dam). [Law Latin] Hist.
According to a charter to be granted. Cf. SECUNDUM
TENOREM CHARTAE CONFECTAE.
secundum consuetudinem manerii (si-k.m-dam kon
SW;J-t[y]oo-d;J-nam ma-neer-ee-I). [Law Latin] Hist.
According to the custom of the manor.
secundum formam chartae (si-kan-dam for-mam kahr
tee). [Law Latin] Hist. According to the form of the
charter.
secundum formam doni (si-hn-dam for-mam doh-ill).
[Latin] Hist. According to the form of the gift or
grant.
secundum formam statuti (si-kan-dam for-mam sta-t[y]
oo-tr). [Law Latin] Hist. According to the form of the
statute.
secundum legem communem (si-kan-dam lee-jam
ka-myoo-nam). [Law l.atin] Hist. According to the
common law.
secundum legem domicilii, velloc; contractus (sa-kan
dam lee-jam dom-a-sil-ee-I, velloh-sI kan-trak-tas).
[Law Latin] Hist. According to the law of the domicile
or of the place where the contract was entered into. See
LEX LOCI CONTRACTUS.
secundum materiam subjectam (sa-hn-dam ma-teer
ee-am sab-jek-tam). [Latin] Hist. According to the
subject matter.
secundum naturam. [Latin] According to nature.
secundum norm am legis (si-kan-dam nor-mam lee-jis).
[Latin] Hist. According to the rule of law; by rule of
law.
secundum regulam (si-kan-dam reg-p-Iam). [Latin]
Hist. According to the rule; by rule.
secundum subjectam materiam (si-kan-dam sab-jek
tam ma-teer-ee-am). [Law Latin] Hist. According to
the subject matter.
secundum tenorem chartae confectae (sa-kan
dam ta-nor-am kahr-tee kan-fek-tee). [Latin] Hist.
According to the tenor of the charter already granted. ! Securities and Exchange Commission. The five-member
Cf. SECUNDUM CHARTAM CONFICIENDAM.
secundum vires hereditatis (s;J-kan-d;Jm VI-reez h;J-red
i-tay-tis). [Law Latin] Rist. According to the extent of
the inheritance.
secundum vires inventarii (sa-k;m-dam VI-reez in-ven
tair-ee-I). [Law Latin] Hist. According to the extent of
the inventory.
secured, adj. (1875) 1. (Of a debt or obligation) supported
or backed by security or collateraL [Cases: Secured
Transactions C=>2.] 2. (Of a creditor) protected by a
pledge, mortgage, or other encumbrance of property
that helps ensure financial soundness and confidence.
See SECURITY. [Cases: Mortgages
secured bond. See BOND (3).
secured claim. See CLAIM (5).
secured creditor. See CREDITOR.
secured debt. See DEBT.
secured loan. See LOAN.
secured note. See NOTE (1).
secured party. See secured creditor under CREDITOR.
secured transaction. (1936) A business arrangement
by which a buyer or borrower gives collateral to the
seller or lender to guarantee payment ofan obligation.
-Article 9 ofthe UCC deals with secured transactions.
See SECURITY AGREEMENT. [Cases: Secured Transac
tions C~l.]
securitas (si-kyoor-i-tas), n. [Latin) 1. Roman law.
Security; freedom from liability after performance. 2.
Civil law. A release.
securitatem inveniendi (si-kyoor-i-tay-tam in-vee-nee
en-dI), n. [Law Latin] Hist. A writ from the Crown
requiring subjects to find security to ensure that they
would not leave the kingdom without the Crown's per
mission. _ It was replaced by ne exeat regno. See NE
EXEAT.
securitate pads (si-kyoor-i-tay-tee pay-sis), n. [Law Latin
"of security of the peace"] Hist. A writ for someone
fearing bodily harm from another, as when the person
has been threatened with violence. -Also termed secu
ritatis pads; writ ofthreats.
securities act. (1933) A federal or state law protecting
the public by regulating the registration, offering, and
trading of securities. See SECURITIES ACT OF 1933;
SECURITIES EXCHANGE ACT OF 1934; BLUE-SKY LAW.
Securities Act of 1933. The federal law regulating the
registration and initial public offering of securities,
with an emphasis on full publk disclosure of financial
and other information. 15 USCA 77a-77aa. -Also
termed Securities Act; 1933 Act. [Cases: Securities Reg
ulation C=>11.10-30.15.]
securities analyst. A person, usu. an employee ofa bank,
brokerage, or mutual fund, who studies a company and
reports on the company's securities, financial condi
tion, and prospects. federal agency that regulates the issuance and trading
ofsecurities to protect investors against fraudulent or
unfair practices. -The Commission was established
by the Securities Exchange Act of 1934. --Abbr. SEC.
[Cases: Securities Regulation C::>81-89.J
Securities and Investment Board. See FINANCIAL
SERVICES AGENCY. Abbr. SIB.
securities broker. See BROKER.
securities exchange. (1909) 1. A marketplace or facility
for the organized purchase and sale of securities, esp.
stocks. 2. A group of people who organize themselves
to create such a marketplace; EXCHANGE (5). -Often
shortened to exchange. Also termed stock exchange.
[Cases: Exchanges C::> 1.J
regional securities exchange. A securities exchange
that focuses on stocks and bonds oflocal interest,
such as the Boston, Philadelphia, and Midwest stock
exchanges. -Also termed regional stock exchange.
Securities Exchange Act of 1934. The federal law reg
ulating the public trading of securities. -This law
provides for periodic disclosures by issuers ofsecurities
and for the registration and supervision of securities
exchanges and brokers, and regulates proxy solicita
tions. The Act also established the SEC. 15 USCA 78a
et seq. -Also termed Exchange Act; 1934 Act. [Cases:
Securities Regulation C=>35.l0-67.15.]
Securities Investor Protection Act. A 1970 federal law
establishing the Securities Investor Protection Cor
poration that, although not a governmental agency,
is deSigned to protect investors whose brokers and
dealers are in financial trouble. -Abbr. SIPA. 15
USCA 78aaa et seq. [Cases: Securities Regulation
C=> 185.10-185.21.]
Securities Investor Protection Corporation. A federally
chartered corporation established under the Securities
Investor Protection Act to protect investors and help
brokers in financial trouble. -Abbr. SIPe. See SECU
RITIES INVESTOR PROTECTION ACT. [Cases: Securities
Regulation (;:)185.11.]
securities-offering distribution. See DISTRIBUTION.
securitizable, adj. 1. Of, relating to, or constituting the
class of obligations that a creditor (originator) may
package and sell to others for corporate purposes. 2.
(Of an asset) capable of being rapidly converted to
cash, as with commercial-loan receivables and trade
accounts receivable.
securitize, vb. To convert (assets) into negotiable secu
rities for resale in the financial market, allOWing the
issuing financial institution to remove assets from its
books, and thereby improve its capital ratio and liquid
ity, and to make new loans with the security proceeds
ifit so chooses. securitized, adj. -securitization,
n.
security, n. (15c) 1. Collateral given or pledged to guaran
tee the fulfillment ofan obligation; esp., the assurance
that a creditor will be repaid (usu. with interest) any
money or credit extended to a debtor. [Cases: Secured
Transactions 115.]2. A person who is bound by
some type of guaranty; SURETY. 3. The state of being
secure, esp. from danger or attack. 4. An instrument
that evidences the holder's ownership rights in a firm
(e.g., a stock), the holder's creditor relationship with a
firm or government (e.g., a bond), or the holder's other
rights (e.g., an option). - A security indicates an interest
based on an investment in a common enterprise rather
than direct participation in the enterprise. Under an
important statutory definition, a security is any interest
or instrument relating to finances, including a note,
stock, treasury stock, bond, debenture, evidence of
indebtedness, certificate ofinterest or participation in
a profit-sharing agreement, collateral trust certificate,
preorganization certificate or subscription, transfer
able share, investment contract, voting trust certificate,
certificate ofdeposit for a security, fractional undivided
interest in oil, gas, or other mineral rights, or certificate
of interest or participation in, temporary or interim
certificate for, receipt for, guarantee of, or warrant or
right to subscribe to or purchase any ofthese things. A
security also includes any put, call, straddle, option, or
privilege on any security, certificate of deposit, group
or index of securities, or any such device |
, option, or
privilege on any security, certificate of deposit, group
or index of securities, or any such device entered into
on a national securities exchange, relating to foreign
currency. 15 USCA 77b(1). Also termed (in sense
4) evidence ofindebtedness; evidence ofdebt. Cf. SHARE
(2); STOCK (4). [Cases: Corporations C::>63.1, 470; Secu
rities Regulation 249.]
"Securities differ from most other commodities in which
people deal. They have no intrinsic value in themselves
they represent rights in something else. The value of a
bond, note or other promise to pay depends on the finan
cial condition of the promisor. The value of a share of
stock depends on the profitability or future prospects of
the corporation or other entity which issued it; its market
price depends on how much other people are willing to
pay for it, based on their evaluation of those prospects."
David L. Ratner, Securities Regulation in a .Nutshell1 (4th
ed. 1992).
"What do the following have in common: scotch whisky,
self-improvement courses, cosmetics, earthworms,
beavers, muskrats, rabbits, chinchillas, fishing boats,
vacuum cleaners, cemetery lots, cattle embryos, master
recording contracts, animal feeding programs, pooled
litigation funds, and fruit trees? The answer is that they
have all been held to be seCUrities within the meaning of
federal or state securities statutes. The vast range of such
unconventional investments that have fallen within the
ambit of the securities laws' coverage is due to the broad
statutory definition of a 'security' ...." 1 Thomas Lee
Hazen, Treatise on the Law of Securities Regulation 1.5,
at 28-29 (3d ed. 1995).
adjustment security. A stock or bond that is issued
during a corporate reorganization. _ The security
holders' relative interests are readjusted during this
process.
assessable security. A security on which a charge or
assessment covering the obligations of the issuing
company is made. _ Bank and insurance-company
stock may be assessable. asset-backed security. A debt security (such as a bond)
that is secured by assets that have been pooled and
secured by the assets from the pool.
bearer security. An unregistered security payable to the
holder. Cf. bearer bond under BOND (3).
callable security. See redeemable security.
certificated security. A security that is a recognized
investment vehicle, belongs to or is divisible into a
class or series of shares, and is represented on an
instrument payable to the bearer or a named person.
UCC 8-102(1)(4). [Cases: Corporations <;::)94.]
collateral security. 1. A security, subordinate to
and given in addition to a primary security, that is
intended to guarantee the validity or convertibility
ofthe primary security. 2. COLLATERAL (2).
consolidated security. (usu. pl.) A security issued in
large enough numbers to provide the funds to retire
two or more outstanding issues of debt securities.
conversion security. The security into which a convert
ible security may be converted, usu. common stock.
convertible security. A security (usu. a bond or pre
ferred stock) that may be exchanged by the owner
for another security, esp. common stock from the
same company, and usu. at a fixed price on a speci
fied date. -Also termed (specif.) convertible debt;
convertible stock. [Cases: Securities Regulation
53.16(10).]
coupon security. A security with detachable interest
coupons that the holder must present for payment as
they mature. _ Coupon securities are usu. in denom
inations of $1,000, and they are negotiable. [Cases:
Corporations
debt security. A security representing funds borrowed
by the corporation from the holder of the debt obli
gation; esp., a bond, note, or debenture. -Generally,
a debt security is any security that is not an equity
See BOND (3). [Cases: Securities Regulation
5.13,250.]
dematerialized security. See uncertificated security.
derivative security. See DERIVATIVE.
divisional security. A special type ofsecurity issued to
finance a particular project.
equity security. A security representing an ownership
interest in a corporation (such as a share of stock)
rather than a debt interest (such as a bond); any stock
or similar security, or any security that is convertible
into stock or similar security or carrying a warrant
or right to subscribe to or purchase stock or a similar
security, and any such warrant or right. [Cases: Cor
porations C::>63.1; Securities Regulation
exempt security. A security that need not be registered
under the provisions ofthe Securities Act of 1933 and
is exempt from the margin requirements ofthe Secu
rities Exchange Act of1934. [Cases: Securities Regula
tion C::> 14.10-14.40.]
1477 security
fixed-income security. A security that pays a fixed rate
of return, such as a bond with a fixed interest rate or
a preferred stock with a fixed dividend.
government security. A security issued by a govern
ment, a government agency, or a government corpora
tion; esp., a security (such as a Treasury bill) issued by
a U.S. government agency, with the implied backing of
Congress. -Also termed government-agency security;
agency security; government bond. [Cases: Securities
Regulation C=o5.29; United States C-::>91.]
heritable security. Scots law. A debt instrument secured
by a charge on heritable property. Also termed
inheritable security. See heritable bond under BOND
(2).
high-grade security. A security issued by a company
of sound financial condition and having the ability
to maintain good earnings (e.g., a utility company
security).
hybrid security. A security with features of both a
debt instrument (such as a bond) and an equity
interest (such as a share of stock). An example of a
hybrid security is a convertible bond, which can be
exchanged for shares in the issuing corporation and
is subject to stock-price fluctuations.
investment security. An instrument issued in bearer
or registered form as a type commonly recognized
as a medium for investment and evidencing a share
or other interest in the property or enterprise of the
issuer. [Cases: Securities Regulation C=o5.1O, 252.]
junior security. A security that is subordinate to a
senior security. Junior securities have a lower
priority in claims on assets and income.
landed security. A mortgage or other encumbrance
affecting land. [Cases: Mortgages
letter security. See restricted security.
listed security. A security accepted for trading on a
securities exchange . The issuing company must
have met the SEC's registration requirements and
complied with the rules ofthe particular exchange.
Also termed listed stock. See DELISTING. [Cases:
Exchanges C::>13.10.]
long-term security. 1. A new securities issue with an
initial maturity often years or more. 2. On a balance
sheet, a security with a remaining maturity of one
year or more.
low-grade security. A security with low investment
quality. Low-grade securities usu. offer higher
yields to attract capital. See high-yield bond under
BOND (3).
marginable security. A security that can be bought on
margin. -Also termed margin stock. See MARGIN.
margined security. A security that is bought on margin
and that serves as collateral in a margin account. See
MARGIN. marketable security. A security that the holder can
readily sell on a stock exchange or an over-the-coun
ter market.
mortgage-backed security. A security (esp. a pass
through security) backed by mortgages . The cash
flow from these securities depends on principal and
interest payments from the pool of mortgages. See
stripped mortgage-backed security. [Cases: Securities
Regulation C=o5.13.]
municipal security. See municipal bond under BOND
(3).
noncallable security. A security that cannot be
redeemed, or bought back, at the issuer's option.
Also termed (specif.) noncallable bond.
nonmarketable security. 1. A security that cannot
be sold on the market and can be redeemed only by
the holder. 2. A security that is not of investment
quality.
outstanding security. A security that is held by an
investor and has not been redeemed by the issuing
corporation.
pass-through security. A security that passes through
payments from debtors to investors . Pass-through
securities are usu. assembled and sold in packages to
investors by private lenders who deduct a service fee
before passing the principal and interest payments
through to the investors.
personal security. 1. An obligation for the repayment of
a debt, evidenced by a pledge or note binding a natural
person, as distinguished from property. 2. A person's
legal right to enjoy life, health, and reputation.
public security. A negotiable or transferable security
that is evidence ofgovernment debt.
real security. The security of mortgages or other liens
or encumbrances upon land. See COLLATERAL (2).
[Cases: Mortgages C=o 1.]
redeemable security. Any security, other than a short
term note, that, when presented to the issuer, entitles
the holder to receive a share ofthe issuer's assets or the
cash equivalent. Also termed callable security.
registered security. 1. A security whose owner is
recorded in the issuer's books . The issuer keeps a
record ofthe current owners for purposes ofsending
dividends, interest payments, proxies, and the like. 2.
A security that is to be offered for sale and for which
a registration statement has been submitted. -Also
termed (specif.) registered stock. [Cases: Securities
Regulation C~11.10-11.50.]
restricted security. A security that is not registered with
the SEC and therefore may not be sold publicly unless
specified conditions are met. A restricted security
is usu. acquired in a non public transaction in which
the buyer gives the seller a letter stating the buyer's
intent to hold the stock as an investment rather than
resell it. Also termed restricted stock; letter security;
letter stock; unregistered security.
1478 security agreement
senior security. A security of a class having priority
over another class as to the distribution of assets or
the payment ofdividends. 15 USCA 77r(d)(4).
shelf security. A security that is set aside for shelf reg
istration.
short-term security. A bond or note that matures and is
payable within a brief period (often one year).
speculative security. A security that, as an invest
ment, involves a risk ofloss greater than would usu.
be involved; esp., a security whose value depends on
proposed or promised future promotion or develop
ment, rather than on present tangible assets or con
ditions.
stripped mortgage-backed security. A derivative
security providing distributions to classes that receive
different proportions ofeither the principal or interest
payments from a pool of mortgage-backed securi
ties. -Abbr. 5MBS. See mortgage-backed security.
structured security. (usu. pl.) 1. A security whose cash
flow characteristics depend on one or more indexes,
or that has an embedded forward or option. 2. A
securitv for which an investor's investment return and
the iss~er's payment obligations are contingent on, or
highly sensitive to, changes in the value ofthe under
lying assets, indexes, interest rates, or cash flows. SEC
Rule 434(h) (17 CFR 230.434(h.
treasury security. See treasury stock under STOCK.
uncertificated security. A share or other interest in
property or an enterprise, or an obligation of the
issuer that is not represented by an instrument but is
registered on the issuer's books. UCC 8-102(a)(18).
This term was called uncertified security in earlier
versions of the UCC. Also termed (in BrE) dema
terialized security.
unlisted security. An over-the-counter security that is
not registered with a stock exchange. -Also termed
unlisted stock.
unregistered security. See restricted security.
voting security. See voting stock under STOCK.
when-issued security. A security that can be traded
even though it has not yet been issued . Any transac
tion that takes place does not become final until the
security is issued.
worthless security. A security that has lost its value, for
which a loss (usu. capital) is allowed for tax purposes.
IRC (26 USCA) 165. [Cases: Internal Revenue
3429.]
zero-coupon security. A security (esp. a bond) that is
issued at a large discount but pays no interest. The
face value of the bond is payable at maturity.
security agreement. An agreement that creates or
prOVides for an interest in specified real or personal
property to guarantee the performance ofan obligation.
It must provide for a security interest, describe the
collateral, and be signed by the debtor. The agreement may include other important covenants and warranties.
[Cases: Secured Transactions (;::::-'41-51.]
Security Council. A principal organ of the United
Nations, consisting offive permanent members (China,
France, Russia, the United Kingdom, and the United
States) and ten additional members elected at stated
intervals, charged with the responsibility of main
taining international peace and security, and esp. of
preventing or halting wars by diplomatic, economic,
or military action . The nonpermanent members are
elected from each of the world's major regions, based
on a distribution formula. [Cases: International Law
(;:::>10.45.]
security deposit. See DEPOSIT (3).
security for costs. (l7c) Money, property, or a bond given
to a court by a plaintiff or an appellant to secure the
payment ofcourt costs ifthat party loses. [Cases: Costs
(;::::-105,302; Federal Civil Procedure < |
ifthat party loses. [Cases: Costs
(;::::-105,302; Federal Civil Procedure <8=>2732.]
security grade. See SECURITY RATING.
security grading. See SECURITY RATING.
security interest. (1951) A property interest created by
agreement or by operation oflaw to secure performance
ofan obligation (esp. repayment ofa debt) . Although
the UCC limits the creation of a security interest to
personal property, the Bankruptcy Code defines the
term to mean "a lien created by an agreement." 11
USCA 101(51). [Cases: Secured Transactions C=)2,
11.]
perfected security interest. (1955) A security interest
that complies with the statutory requirements for
achieving priority over a trustee in bankruptcy and
unperfected interests . A perfected interest may also
have priority over another interest that was perfected
later in time. See PERFECT. [Cases: Bankruptcy
2952; Secured Transactions <8=>81-96, 138-145.]
purchase-money security interest. (1957) A security
interest that is created when a buyer uses the lender's
money to make the purchase and immediately gives
the lender security by using the purchased property
as collateral (UeC 9-107); a security interest that
is either (1) taken or retained by the seller of the col
lateral to secure all or part ofits price or (2) taken by
a person who by making advances or incurring an
obligation gives value to enable the debtor to acquire
rights in or the use ofcollateral if that value is in fact
so used . Ifa buyer's purchase ofa boat, for example,
is financed by a bank that loans the amount of the
purchase price, the bank's security interest in the boat
that secures the loan is a purchase-money security
interest. Abbr. PMSI. -Also termed purchase
money interest. [Cases: Secured Transactions
146.]
unperfected security interest. (1957) A security interest
held by a creditor who has not established priority
over any other creditor. -The only priority is over the
debtor. [Cases: Secured Transactions <8=> 139.]
1479
security rating. 1. The system for grading or classifying a
security by financial strength, stability, or risk. Firms
such as Standard and Poor's and Moody's grade securi
ties. Also termed security grade; security grading;
security rate. 2. The classification that a given security
is assigned to under this system.
secus (see-kas). [Latin] Otherwise; to the contrary.
sedato animo (5i-day-toh an-a-moh). [Latin] With stated
or settled purpose.
se defendendo (see def-en-den-doh), adv. [Law Latin] In
self-defense; in defending oneself <homicide se defen
dendo>.
"Homicide se defendendo is of two kinds. (1) Such, as tho
it excuseth from death, yet it excuseth not the forfeiture
of goods, ... (2) Such as wholly acquits from all kinds of
forfeiture." 1 Hale P.c. 478.
sedentary work. See WORK (1).
sedente curia (si-den-tee kyoor-ee-d). [Latin]lhe court
sitting; during the court sitting.
sede plena (see-dee plee-nd). [Latin] Hist. The see being
filled. This term indicated that a bishop's see was not
vacant.
sederunt. See ACT OF SEDERUNT.
sedes (see-deez), n. [Latin "a seat"] 1. Roman law. A
private residence. 2. Roman law. Judicial office; the
bench. 3. Hist. A see; a bishop's dignity.
sede vacante (see-dee vd-kan-tee). [Law Latin] Hist. The
benefice being vacant.
sedge flat. A tract ofland below the high-water mark.
sedition, n. (l4c) 1. An agreement, communication, or
other preliminary activity aimed at inciting treason
or some lesser commotion against public authority. 2.
Advocacy aimed at inciting or producing -and likely
to incite or produce -imminent lawless action . At
common law, sedition included defaming a member
of the royal family or the government. The differ
ence between sedition and treason is that the former
is committed by preliminary steps, while the latter
entails some overt act for carrying out the plan. But
if the plan is merely for some small commotion, even
accomplishing the plan does not amount to treason.
Cf. TREASON. [Cases: Insurrection and Sedition
1.] -seditious, adj.
"Sedition -This, perhaps the very vaguest of all offences
known to the Criminal Law, is defined as the speaking or
writing of words calculated to excite disaffection against
the Constitution as by law established, to procure the
alteration of it by other than lawful means, or to incite
any person to commit a crime to the disturbance of the
peace, or to raise discontent or disaffection, or to promote
ill-feeling between different classes of the community. A
charge of sedition is, historically, one ofthe chief means by
which Government, especially at the end of the eighteenth
and the beginning of the nineteenth century, strove to put
down hostile critics. It is evident that the vagueness of the
charge is a danger to the liberty of the subject, especially if
the Courts ofJustice can be induced to take a view favour
able to the Government." Edward Jenks, The Book ofEnglish
Law 136 (P.B. Fairest ed., 6th ed. 1967). segregation
Sedition Act. Hist. A 1798 federal statute that prohibited
the malicious publication ofdefamatory material about
the government, Congress, or the President. The act
expired in 1801.
seditious conspiracy. See CONSPIRACY.
seditious libel. See LIBEL.
seditious speech. See SPEECH.
sed non allocatur (sed non al-a-kay-tar). [Law Latin]
Hist. But it is not allowed or upheld. This phrase was
formerly used to indicate the court's disagreement with
the arguments ofcounsel.
sedper curiam (sed pdr kyoor-ee-dm). [Latin] But by the
court. This phrase is used to introduce: (1) a state
ment made by the court disagreeing with counsel's
arguments; or (2) the opinion ofthe whole court when
different from the opinion ofthe single judge immedi
ately before quoted.
sed quaere (sed kweer-ee). [Latin] But inquire; examine
this further. This remark indicates that the correct
ness ofa particular statement is challenged.
seduction. (16c) The offense that occurs when a man
entices a woman ofpreviously chaste character to have
unlawful intercourse with him by means of persua
sion, solicitation, promises, or bribes, or other means
not involving force . Many states have abolished this
offense for persons over the age oflegal consent. Tra
ditionally, the parent ofa young woman had an action
to recover damages for the loss of her services. But in
measuring damages, the jury could consider not just
the loss of services but also the distress and anxiety
that the parent had suffered in being deprived ofher
comfort and companionship. 1bough seduction was
not a crime at common law, many American states
made it a statutory crime until the late 20th century.
[Cases: Seduction <:;:::029-54.]
sed vide (sed VI-dee). [Latin] But see. This remark,
followed by a citation, directs the reader's attention to
an authority or a statement that conflicts with or con
tradicts the statement or principle just given. Also
termed but see.
see, n. The area or district ofa bishop's jurisdiction <the
see ofCanterbury>.
seed money. Start-up money for a business venture.
Also termedfront money;front-end money.
seeming danger. See DANGER.
segregation, n. (16c) 1. 1he act or process of separat
ing.
punitive segregation. (1958) The act of removing a
prisoner from the prison population for placement
in separate or solitary confinement, usu. for disciplin
ary reasons. -Also termed punitive isolation. [Cases:
Prisons <:;:::0 231.]
2. The unconstitutional policy of separating people
on the basis of color, nationality, religion, or the
like. [Cases: Civil Rights lO33(1, 1); Constitu
tional Law Schools C=> 13(5).J segregate,
vb. -segregative, adj.
de facto segregation. (1958) Segregation that occurs
without state authority, usu. on the basis of socio
economic factors. [Cases: Civil Rights 1033(1);
Schools (;::::::'13(5).]
de jure segregation. (1963) Segregation that is permit
ted by law. [Cases: Civil Rights C=> 1033(1); Schools
C=>13(5).]
seignior (seen-yar), n. [Law French] Hist. An owner of
something; a lord of a fee or manor. -Also spelled
seigneur (seen- or sayn-yar); seign or. See SEIGNIORY.
seignior in gross (seen-Ydr in grohs), n. [Law French]
A lord having no manor but enjoying the other rights
oflordship.
seigniorage (seen-pr-ij), n. [Law French] 1. Hist. 1he
tenure existing between lord and vassal. 2. Hist. A pre
rogative of the Crown; specif., the charge for coining
bullion into money; mintage. 3. A royalty. 4. A profit.
seignioress (seen-Ydr-es or -is), n. [Law French] Hist. A
female superior; a lady.
seigniory (seen-yar-ee), n. [Law French] Hist. 1. The
rights and powers of a lord; esp., a grantor's retained
right to have the grantee perform services in exchange
for the transfer ofland. 2. A lord's dominions; a feudal
or manor lordship; esp., land held subject to such a
retained right in the grantor. -Also spelled seignory.
seigniory in gross (seen-Ydr-ee in grohs). See reputed
manor under MANOR.
seignory. See SEIGNIORY.
seise (seez), vb. To invest with seisin or establish as a
holder in fee simple; to put in possession <he became
seised ofhalf a section of farmland near Amarillo>.
seised to uses. See STANDING SEISED TO USES.
seisin (see-zin), n. (14c) 1. Hist. Completion of the
ceremony of feudal investiture, by which the tenant
was admitted into freehold. 2. Possession ofa freehold
estate in land; ownership. 3. Louisiana law. The right
that the law accords universal successors to own and
possess a person's estate directly and immediately upon
that person's death. La. Civ. Code arts. 935 et seq.
Also spelled seizin. Also termed vesture; seisina; (in
Scots law) sasine. [Cases; Property C:::> 10.]
"Originally, seisin meant simply possession and the word
was applicable to both land and chattels. Prior to the four
teenth century it was proper to speak of a man as being
seised of land or seised of a horse. Gradually, seisin and
possession became distinct concepts. A man could be said
to be in possession of chattels, or of lands wherein he had
an estate for years, but he could not be said to be seised
of them. Seisin came finally to mean, in relation to land,
possession under claim of a freehold estate therein. The
tenant for years had possession but not seisin; seisin was
in the reversioner who had the fee. And although the word
'seisin' appears in modern statutes with a fair degree of
frequency, it is usually treated as synonymous with owner
ship." CorneliusJ. Moynihan, Introduction to the Law ofReal
Property 98-99 (2d ed. 1988).
"It is difficult to define seisin satisfactorily. It has nothing
to do with 'seizing,' with its implication of violence. To medieval lawyers it suggested the very opposite: peace
and quiet. A man who was put in seisin of land was 'set'
there and continued to 'sit' there. Seisin thus denotes quiet
possession of land, but quiet possession of a particular
kind. .. Although it seems impossible to frame a satisfac
tory definition ... , to call it 'that feudal possession of land
which only the owner of a freehold estate in freehold land
could have' is to express the most important elements."
Robert E. Megarry & M.P. Thompson, A Manual of the Law
of Reai Property 27-28 (6th ed. 1993).
actual seisin. See seisin in deed.
constructive seisin. See seisin in law.
covenant ofseisin. See COVENANT (4).
customary seisin. See quasi-seisin.
equitable seisin. 1. Possession or enjoyment of a
property interest or right enforceable in equity. 2.
See seisin in law.
fictitious seisin. See seisin in law.
legal seisin. See seisin in law.
livery ofseisin. See LIVERY OF SEISIN.
primer seisin (prim-<)r orprI-m<)r see-zin). Hist. A right
of the Crown to receive, from the heir ofa tenant who
died in possession ofa knight's fee, one year's profits
of the inherited estate (or half a year's profits if the
estate was in reversion); FIRST FRUITS (1).
quasi-seisin. A copyholder's possession of lands, the
freehold possession being in the lord. -Also termed
customary seisin.
seisin in deed. (17c) Actual possession of a freehold
estate in land, by oneself or by one's tenant or agent, as
distinguished from legal possession. Also termed
seisin in fact; actual seisin. |
's tenant or agent, as
distinguished from legal possession. Also termed
seisin in fact; actual seisin. [Cases; Property C=> 10.]
seisin infact. See seisin in deed.
seisin in law. (l7e) The right to immediate possession
of a freehold estate in land, as when an heir inherits
land but has not yet entered it. -Also termed legal
seisin; constructive seisin; equitable seisin; fictitious
seisin. [Cases: Property C=> 10.]
"Seisin in law is, when something is done, which the law
accounteth a seisin; as an inrollment." 2 E. Chambers,
Cyclopedia: Or, an Universal Dictionary ofArts and Sciences
(1743), s.v. SEISIN 'N FACT.
seisina (see-zin-<), n. [Law Latin] Hist. Seisin.
seisina habenda (see-zin-d ha-ben-d<)). See DE SEISINA
HABENDA.
seisor (see-zar), n. One who takes possession of a
freehold.
seize, vb. (Be) 1. To forcibly take possession (of a person
or property). 2. To place (someone) in possession. 3. To
be in possession (of property). 4. To be informed of or
aware of (something). See SEISIN; SEIZURE.
seizin. See SEISIN.
seizure, n. (15c) The act or an instance oftaking posses
sion of a person or property by legal right or process;
esp., in constitutional law, a confiscation or arrest that
may interfere with a person's reasonable expectation of
privacy. [Cases: Arrest ~68(4); Searches and Seizures
(.':::>13.1.]
constructive seizure. A manifest intent to seize and take
possession of another person's property, usu. either
by lawfully acquiring actual custody and control of
the property or by posting notice of the property's
pending foreclosure. [Cases: Attachment C=> 162;
Execution C=> 126.]
select committee. See special committee under COMMIT
TEE.
select council. See COUNCIL.
selecti judices (si-Iek-tI joo-di-seez). [Latin] Roman law.
Jurors on the official panel prepared by the praetor,
who for a specific trial were drawn by lot subject to
challenge and sworn to office in a similar manner to
modern juries.
selective disclosure. (1963) The act ofdivulging part ofa
privileged communication, or one ofseveral privileged
communications, usu. because the divulged portion
is helpful to the party giving the information, while
harmful portions ofthe communication are withheld.
-Such a disclosure can result in a limited waiver ofthe
privilege for all communications on the same subject
matter as the divulged portion. [Cases: Privileged Com
munications and ConfidentialityC=>20.]
selective-draft law. A statute empowering the federal
government to conscript citizens for military duty.
The constitutionality of the first selective-draft law
was challenged and upheld in the Selective-Draft-Law
Cases. See Arver v. United States, 245 U.S. 366, 38 S.Ct.
159 (1918). [Cases: Armed Services C=>20, 40.1.]
selective enforcement. (1958) The practice of law
enforcement officers who use wide or even unfettered
discretion about when and where to carry out certain
laws; esp., the practice ofsingling a person out for pros
ecution or punishment under a statute or regulation
because the person is a member of a protected group
or because the person has exercised or is planning to
exercise a constitutionally protected right. -Also
termed selective prosecution. Cf. vindictive prosecution
under PROSECUTION. [Cases: Constitutional Law
223,250.1(3); Criminal Law C=>37.1O.]
"The chief of police of a New England town once declared to
the press that he believed in a strict curfew law, 'selectively
enforced.' 'Selective enforcement' in this case means that
the policeman decides for himself who ought to be sent
home from the street; legislative candour would suggest
that if this is the intention it ought to be expressed in the
law itself, instead of being concealed behind words that
are 'strict' and categorical." Lon L. Fuller, Anatomy of the
Law 42 (1968).
selective incorporation. See INCORPORATION.
selective prosecution. (1967) I. SELECTIVE ENFORCE
MENT. 2. The practice or an instance ofa criminal pros
ecution brought at the discretion ofa prosecutor rather
than one brought as a matter of course in the normal
functioning of the prosecuting authority's office. _
Selective prosecution violates the Equal Protection
Clause of the Fourteenth Amendment if a defendant is singled out for prosecution when others Similarly
situated have not been prosecuted and the prosecutor's
reasons for doing so are impermissible.
selective prospectivity. (1991) A court's decision to apply
a new rule oflaw in the particular case in which the new
rule is announced, but to apply the old rule in all other
cases pending at the time the new rule is announced
or in which the facts predate the new rule's announce
ment. [Cases: Courts C=' 100(1).]
i Selective Service System. The federal agency that reg
isters all persons 18-26 who are eligible for military
service military service and prOVides personnel to the
i Armed Forces during emergencies . It was established
in 1940 as a part of the War Manpower Commission
and became independent in 1943. -Abbr. SSS. [Cases:
Armed Services C~\20.8.1
I selectman. A municipal officer elected annually in some
New England towns to transact business and perform
some executive functions. [Cases: Towns C=>26.]
self-applying, adj. (1894) (Of a statute, ordinance, etc.)
! requiring no more for interpretation than a familiarity
with the ordinary meanings of words.i
self-authentication. See AUTHENTICATION.
self-canceling installment note. See NOTE (1).
self-crimination. See SELF-INCRIMINATION.
self-critical-analysis privilege. See PRIVILEGE (3).
self-dealing, n. (1940) Participation in a transaction that
benefits oneself instead ofanother who is owed a fidu
ciary duty . For example, a corporate director might
engage in self-dealing by participating in a compet
ing business to the corporation's detriment. Cf. FAIR
DEALING (1), (2). [Cases: Corporations ~315,316.]
self-deal, vb.
self-defense, n. (1651) 1. The use of force to protect
oneself, one's family, or one's property from a real or
threatened attack. Generally, a person is justified in
using a reasonable amount of force in self-defense if
he or she reasonably believes that the danger ofbodily
harm is imminent and that force is necessary to avoid
this danger. Also termed defense ofseif. Cf. adequate
provocation under PROVOCATION. [Cases: Assault and
Battery c= 13, 67; Homicide C:;>766.J
'The law of self-defence, as it is applied by the courts, turns
on two requirements: the force must have been necessary,
and it must have been reasonable." Andrew Ashworth, Prin
ciples ofCriminal Law 114 (1991).
imperfect self-defense. (1882) The use of force by one
who makes an honest but unreasonable mistake that
force is necessary to repel an attack. -In some juris
dictions, such a self-defender will be charged with
a lesser offense than the one committed. [Cases:
Homicide C'J686.]
perfect self-defense. (1883) The use offorce by one who
accurately appraises the necessity and the amount of
force to repel an attack.
2. Int'I law. The right ofa state to defend itself against a
real or threatened attack. See United Nations Charter,
art. 51 (59 Stat. 1031). -Also spelled (esp. in BrE) self
defence. self-defender, n.
"Self-defence, properly understood, is a legal right, and
as with other legal rights the question whether a specific
state of facts warrants its exercise is a legal question. It is
not a question on which a state is entitled, in any special
sense, to be ajudge in its own cause." J.L Brierly, The Law
ofNations 319 (5th ed. 1955).
self-destruct clause. A provision in a trust for a con
dition that will automatically terminate the trust.
Discretionary trusts, esp. supplemental-needs trusts,
often include a self-destruct provision. For example,
a trust to provide for the needs of a disabled person
may terminate ifthe beneficiary becomes ineligible for
a government-benefits program such as Medicaid.
self-destruction. See SUICIDE (1).
self-determination contract. See CONTRACT.
self-determination election. See GLOBE ELECTION.
self-disserving declaration. Hist. See declaration against
interest under DECLARATION (6).
self-employed retirement plan. See KEOGH PLAN.
self-employment tax. See TAX.
self-evaluation privilege. See self-critical-analysis privi
lege under PRIVILEGE (3).
self-executing, adj. (1857) (Of an instrument) effective
immediately without the need of any type of imple
menting action <the wills had self-executing affidavits
attached>. _ Legal instruments may be self-executing
according to various standards. l;or example, treaties
are self-executing under the Supremacy Clause ofthe
U.S. Constitution (art. VI, 2) if textually capable of
judicial enforcement and intended to be enforced in
that manner.
self-help, n. (1831) An attempt to redress a perceived
wrong by one's own action rather than through the
normal legal process. -The UCC and other statutes
provide for particular self-help remedies (such as repos
session) if the remedy can be executed without breach
ing the peace. UCC 9-609. -Also termed self-redress;
extrajudicial enforcement. [Cases: Secured Transactions
C=228.]
"Notice to the debtor is generally not required prior to
self-help repossession of collateral by the creditor upon
default, although the provision for self-help repossession
has been held to violate due process requirements in some
instances, and states under the Uniform Consumer Credit
Code require particular notice requirements. Furthermore,
while the UCC generally does not require notice to the
debtor upon self-help repossession of the collateral upon
the debtor's default, the agreement between the parties
may require such notice prior to repossession." 68A Am.
Jur. 2d Secured Transactions 608, at 466 (1993).
self-help remedy. See extrajudiCial remedy under
REMEDY.
self-incrimination. (1853) The act of indicating one's
own involvement in a crime or exposing oneself to pros
ecution, esp. by making a statement. -Also termed
self-crimination; self-inculpation. See RIGHT AGAINST SELF-INCRIMINATION. [Cases: Criminal Law C='393;
Witnesses C;)297.]
Self-Incrimination Clause. (1925) The clause of the
Fifth Amendment to the U.S. Constitution barring the
government from compelling criminal defendants to
testify against themselves. [Cases: Witnesses (;:=:>299.]
self-inculpation. See SELF-INCRIMLNATION.
self-induced frustration. See FRUSTRATION.
self-induced intoxication. See voluntary intoxication
under INTOXICATION.
self-insurance. See INSURANCE.
self-insured retention. Insurance. The amount of an oth
erwise-covered loss that is not covered by an insurance
policy and that usu. must be paid before the insurer
will pay benefits <the defendant had a $1 million CGL
policy to cover the loss, but had to pay a self-insured
retention of $100,000, which it had agreed to so that
the policy premium would be lower>. Abbr. SIR. C(
DEDUCTIBLE. [Cases: Insurance (;:=:>2283.]
self-killing. See SUICIDE (1).
self-liquidating mortgage. See amortized mortgage
under MORTGAGE.
self-murder. See SUICIDE (1).
self-policing privilege. See self-critical-analysis privilege
under PRIVILEGE (3).
self-proved will. See WILL.
self-proving affidavit. See AFFIDAVIT.
self-redress. See SELF-HELP.
self-regulation. See REGULATION (1).
self-regulatory organization. A nongovernmental orga
nization that is statutorily empowered to regulate its
members by adopting and enforcing rules of conduct,
esp. those governing fair, ethical, and efficient prac
tices. Abbr. SRO.
self-represented litigant. See PRO SE.
self-serving declaration. See DECLARATION (6).
self-settled trust. See TRUST.
self-slaughter. See SUICIDE (1).
self-stultification. (1862) The act or an instance of testi
fying about one's own deficiencies. See STULTIFY.
sell, vb. (bef. 12c) To transfer (property) by sale.
seller. (l3c) 1. A person who sells or contracts to sell
goods; a vendor. UCC 2-103(l)(d). [Cases: Sales (;:=:>
15.] 2. Generally, a person who sells anything; the
transferor of property in a contract of sale.
seller's market. See MARKET |
person who sells anything; the
transferor of property in a contract of sale.
seller's market. See MARKET.
seller's option. See OPTION.
selling agent. See AGENT (2).
selling price. See sales price under PRICE.
sell-off, n. A period when heavy pressure to sell causes
falling stock-market prices.
sell order. See ORDER (8),
semble (sem-b;Jl). [Law French] (1817) It seems; it would
appear <semble that the parties' intention was to create
a binding agreement> . This term is used chiefly to
indicate an obiter dictum in a court opinion or to intro
duce an uncertain thought or interpretation. -Abbr.
sem.; semb.
semestria (si-mes-tree-;J), n. [Latin half-yearly matters"]
Roman law. The collected decisions ofRoman emperors,
issued every six months.
Semiconductor Chip Protection Act. Intellectual
property. A 1984 statute protecting manufacturers
against the unauthorized copying or use of semicon
ductor chips and the mask works used to manufacture
them. _ Semiconductor chips do not qualify for patent
protection since technological advancements are small
and usu. obvious. Mask works are multi-layered, three
dimensional templates used to produce semiconduc
tor chips. Mask-work design is more functional than
expressive and so traditional copyright protection was
inapplicable until 1984. The Act provides copyright
protection to the mask works for a period often years.
17 USCA 901-914. -Abbr. SCPA. [Cases: Copy
rights and Intellectual Property (::::::> lOA.]
semi-free software. Software that does not include
source code but comes with permission for individu
als to use, copy, modify, and distribute the software
for nonprofit purposes. Cf. FREEWARE; PROPRIETARY
SOFTWARE; SHAREWARE.
semi-matrimonium (sem-I ma-tr<l-moh-nee-am), n.
[Latin] A half-marriage.
seminary. 1. An educational institution such as a college,
academy, or other school; esp., one that trains students
forthe clergy. [Cases: Colleges and Universities L]
2. The building in which the institution performs its
functions.
seminaufragium (sem-I-naw-fray-jee-;Jm), n. [Latin]
Hist. A half-shipwreck, as when goods are cast over
board in a storm or when a damaged ship's repair costs
are more than the ship's worth.
semiplena probatio (sem-I-plee-na proh-bay-shee-oh),
n. [Latin] Half-proof.
"In actions of filiation, a pursuer was formerly entitled, on
adducing a semiplena probatio, to her oath in supplement
to prove that the defender was the father of her child. A
semiplena probatiowas such a proof as induced, not merely
a suspicion, but a reasonable beliefthat the pursuer's case
was wellfounded, and consisted generally of a proof of
opportunity for connection, acts of familiarity on the part
of the defender towards the pursuer, &c ...." John Trayner,
Travner's Latin Maxims 569 (4th ed. 1894).
semi-secret trust. See TRUST.
semi-skilled work. See WORK (1).
semper (sem-p;Jr). [LatinJ Always. -This term intro
duces several Latin maxims, such as semper in dubiis
benigniora praeferenda sunt nn doubtful cases, the
more favorable constructions are always to be pre
ferred"). semper paratus. A defendant's pleading that he or
she has always been ready to perform as the plaintiff
demanded.
senage (see-nij). [French] Money paid for synodals; trib
ute-money. See SYNODAL.
senate. (l3c) 1. The upper chamber ofa bicameral legis
lature. [Cases: States (;:::::)26.J 2. (cap.) The upper house
ofthe U.S. Congress, composed of 100 members -two
from each state -who are elected to six-year terms. -
Abbr. S. [Cases: United States <:---=-7.1.]
senate hill. See BILL (3).
senator. (13c) A person who is a member ofa senate.
senatores (sen-d-tor-eez), n. pl. [Latin] Roman law. 1.
Members ofthe Roman senate. 2. Members ofmunici
pal councils.
senatorial courtesy. (1884) 1. The tradition that the
President should take care in filling a high -level federal
post (such as a judgeship) with a person agreeable to
the senators from the nominee's home state, lest the
senators defeat confirmation. [Cases: Judges (::::::>3.]
"The risk of a deadlock is minimized by [the President's]
consulting informally with the Senators from the State in
which the office lies, if they are members of his own politi
cal party. Actually this amounts in most instances to his
taking the advice of these two Senators as to a selection.
A nomination approved by them is practically certain of
final confirmation by the Senate as a whole. The arrange
ment is a 'log-rolling' one, which has been dignified by the
name of 'Senatorial courtesy.' 'If you will help me to get
the appointments I want in my State, I will help you get the
appointments you want in your State.'" Herbert W. Horwill,
The Usages of the American Constitution 129 (1925).
2. Loosely, civility among senators <a decline ofsena
torial courtesy>.
Senator of the College of Justice. Scots law. See LORD
OF SESSION.
senatus (si-nay-t;Js), n. [Latin] Roman law. l.lhe Roman
senate. 2. The meeting place for the Roman senate.
senatus consulto (si-nay-t<ls k;Jn-sal-toh). [Latin] Roman
law. By the decree of the Senate.
senatus consultum (si-nay-t;Js k;Jn-sal-tam). [Latin]
Roman law. In the Republic, a resolution ofthe Roman
Senate, which did not have the force oflaw (though usu.
followed). -In the first century A.D., these resolutions
replaced the legislation of the comitia, but by the end
of the second century, they were merely the Senate's
official expression ofthe imperial will. The senate often
adopted the text ofa speech (oratio) by the emperor.
Sometimes written senatusconsulturn. Also termed
senatu5 consult. -Abbr. S.C. PI. senatus consulta.
"Senatus consulta. --_. In the regal and republican periods
the Senate enjoyed no legislative power. It was an advisory
body, nominated by the King, and at first purely patrician.
Later it ... included patricians and plebeians ... its chief
duty still being to tender advice to the magistrates ....
The theory still was, till the time of Hadrian, that senarus
consulta were directions to the magistrates, who were now
in fact, if not in name, bound to give effect to them, till by
a process of gradual usurpation senatus consulta came to
be direct legislation." R.W. Leage, Roman Private Law 12-13
(C.H. Ziegler ed., 2d ed. 1930).
1484 senatus consultum Macedonianum
senatus consultum Macedonianum (si-nay-tds k;)n-sal
t;)m mas-;)-doh-nee-ay- n;)m). [Latin "Macedo's Reso
lution"] Roman law. A senate decree under Vespasian
to protect fathers from children in their power who
had borrowed excessive sums in expectation of their
father's death, by making actions to recover such loans
unlawful. -Also termed Macedonian Decree.
"In the principate of Vespasian, 6979 A.D., a senatus can
sultumwas passed which forbade loans to a filius-familias.
It was called the senatus consultum -Macedonianum,
after one Macedo, a usurer who had made such a loan and
thereby instigated a hard-pressed debtor to kill his father
in order to enter into his inheritance. To prevent tragic pos
sibilities like these, the senatus consultum declared that no
action would lie to recover money lent to a filius-familias."
Max Radin, Handbook of Roman Law 188-89 (1927).
"The senatus consultum Macedonianum reads as follows:
'Whereas Macedo's borrowings gave him an added incen
tive to commit a crime to which he was naturally predis
posed and whereas those who lend money on terms which
are dubious, to say the least, often provide evil men with
the means of wrongdoing, it has been decided, in orderto
teach perniciOUS moneylenders that a son's debt cannot
be made good by waiting for his father's death, that a
person who has lent money to a son-in-power is to have
no claim or action even after the death of the person in
whose power he was.'" Digest of justinian 14.6.1 (Ulpian,
Ad Sabinum 49).
senatus consultum ultimum necessitatis (si-nay-t;)s bn
sClI-t~m Cll-t;)-mee nd-ses-i-tay-tis). [Latin1 Roman law.
A decree of the senate ofthe last necessity . This decree
usu. preceded the nomination ofa leader with absolute
power in a time ofemergency. Also termed senatus
consultum ultimae necessitatis.
senatus consultum Velleianum (si-nay-tCls kCln-sCll-t;)m
vel-ee-ay-n;)m). [Latin "Yelleian Decree") Roman law.
A senate decree, probably ofA.D. 46, to protect women
from making unconscionable guarantees, suretyship
undertakings, or debt assumptions for their husbands
and for others generally. by making actions to enforce
such undertakings unlawfuL
senatus decreta (si-nay-tCls di-kree-t;. [Latin] Roman
law. The senate's decisions.
sending state. See STATE.
senescallus (sen-Cls-kal-;>s), n. [Law Latin] See SENE
SCHAL.
seneschal (sen-;)-sh;)l), n. [Law French] Hist. 1. A French
title ofoffice, equivalent to a steward in England. _ A
seneschal was originally a duke's lieutenant or a lieuten
ant to other dignities ofthe kingdom. 2. The steward of
a manor. 3. Hist. An administrative or judicial officer,
such as the governor of a city or province. Also
termed senescallus.
senility. (18c) Mental feebleness or impairment caused
by old age. _ A senile person (in the legal, as opposed
to the popular, sense) is incompetent to enter into a
binding contract or to execute a will. Also termed
senile dementia (see-nIl di-men-shee-Cl). [Cases: Mental
Health C~3.] senile, adj.
senior, adj. (14c) 1. (Of a debt, etc.) first; preferred, as over
junior obligations. 2. (Of a person) older than someone else. 3. (Of a person) higher in rank or service. 4. (Of a
man) elder, as distinguished from the man's son who
has the same name.
senior administrative patent judge. See JUDGE.
senior counsel. 1. See lead counsel under COUNSEL. 2.
See KINds COUNSEL; QUEEN'S COUNSEL.
senior debt. See DEBT.
senior interest. See INTEREST (2).
seniority. (15c) 1. lhe preterential status, privileges, or
rights given to an employee based on the employee's
length ofservice with an employer. Employees with
seniority may receive additional or enhanced benefit
packages and obtain competitive advantages over
fellow employees in layoff and promotional decisions.
2. The status ofbeing older or senior.
seniority system. Employment law. Any arrangement
that recognizes length ofservice in making decisions
about job layoffs and promotions or other advance
ments.
senior judge. See rUDGE.
senior lien. See LIEN.
senior mortgage. See MORTGAGE.
senior partner. See PARTNER.
senior party. Intellectual property. In an interference
proceeding, the first person to file an application for a
property's legal protection, e.g., an invention patent or
a trademark registration . In the United States, merely
being the first to file does not entitle the party to the
protection. The proceeding's administrator also takes
other factors into account. For instance, in a patent
interference proceeding the invention's conception date
and the inventor's diligence in reducing the invention
to practice are relevant factors. Priority in the filing
date is prima facie evidence that the senior party is the
first inventor, so the challenger has the burden ofproof.
Cf. JUNIOR PARTY. [Cases: Patents C=>106(1).)
senior security. See SECURITY.
senior status. (1970) The employment condition of a
semiretired judge who continues to perform certain
judicial duties that the judge is willing and able to
undertake. [Cases: Judges
senior user. Trademarks. The first person to use a mark.
_ That person is usu_ found to be the mark's owner.
Also termed first user. Cf. JUNIOR USER. [Cases: Trade
marks C=> 1137.]
sensitivity training. (1956) One or more instructional
sessions for management and employees, designed to
counteract the callous treatment ofothers, esp. women
and minorities, in the workplace.
sensus (sen-s~s). [Latin] Hist. Sense; meaning; signi
fication. _ The word appears in its inflected form in
phrases such as malo sensu ("an evil sense"), mitiori
sensu ("in a milder sense"), and sensu honesto nn |
such as malo sensu ("an evil sense"), mitiori
sensu ("in a milder sense"), and sensu honesto nn an
honest sense").
sentence, n. (14c) The judgment that a court formally
pronounces after finding a criminal defendant guilty;
the punishment imposed on a criminal wrongdoer <a
sentence of 20 years in prison>. See Fed. R. Crim. P.
32. Also termed judgment ofconviction. [Cases: Sen
tencing and Punishment ~1001.] -sentence, vb.
accumulative sentences. See consecutive sentences.
aggregate sentence. (1917) A sentence that arises from
a conviction on multiple counts in an indictment.
[Cases: Sentencing and Punishment ~642-643.1
alternative sentence. (1841) A sentence other than
incarceration . Examples include community
service and victim restitution. Also termed creative
sentence. [Cases: Sentencing and Punishment
2049,2100-2217.]
blended sentence. In a juvenile-delinquency disposi
tion, a sanction that combines delinquency sanctions
and criminal punishment.
concurrent sentences. (1905) Two or more sentences of
jail time to be served simultaneously . For example,
ifa convicted criminal receives concurrent sentences
of 5 years and IS years, the total amount of jail time
is IS years. [Cases: Sentencing and Punishment
547.]
conditional sentence. (1843) A sentence of confinement
if the convicted criminal fails to perform the condi
tions of probation. [Cases: Sentencing and Punish
ment ~1960-1988.]
consecutive sentences. (1844) Two or more sentences of
jail time to be served in sequence . For example, ifa
convicted criminal receives consecutive sentences of
20 years and 5 years, the total amount ofjail time is
25 vears. -Also termed cumulative sentences; accu
mrllative sentences. [Cases: Sentencing and Punish
ment
consolidated sentence. See general sentence.
creative sentence. See alternative sentence.
death sentence. (1811) A sentence that imposes the
death penalty. See Model Penal Code 210.6.
Also termed judgment ofblood. See DEATH PENALTY.
[Cases: Sentencing and Punishment (:::::i 1610,1787.]
deferred sentence. (1915) A sentence that will not be
carried out if the convicted criminal meets certain
requirements, such as complying with conditions of
probation. [Cases: Sentencing and Punishment
2051-2054.]
delayed sentence. (1906) A sentence that is not imposed
immediately after conviction, thereby allowing the
convicted criminal to satisfy the court (usu. by com
plying with certain restrictions or conditions during
the delay period) that probation is preferable to a
prison sentence. [Cases: Sentencing and Punishment
~c;2051-2054.1
determinate sentence. (1885) A sentence for a fixed
length of time rather than for an unspecified
duration. Also termed definite sentence; defini
tive sentence; fixed sentence; flat sentence; straight sentence. [Cases: Sentencing and Punishment
1053, 1054.]
excessive sentence. (1879) A sentence that gives more
punishment than is allowed by law. [Cases: Sentenc
ing and Punishment <>:>34, 1480, 1483.J
fixed sentence. 1. See determinate sentence. 2. See man
datory sentence.
flat sentence. See determinate sentence.
general sentence. (1891) An undivided, aggregate
sentence in a multicount case; a sentence that does
not specify the punishment imposed for each count.
General sentences are prohibited. Also termed
consolidated sentence. [Cases: Sentencing and Punish
ment (;:;) 1060.]
indeterminate sentence. (1885) 1. A sentence of an
unspecified duration, such as one for a term of 10 to 20
years. [Cases: Sentencing and Punishment ~1057
1059, 1125-1127.] 2. A maximum prison term that the
parole board can reduce, through statutoryauthoriza
tion, after the inmate has served the minimum time
required by law. -Also termed indefinite sentence.
See INDETERMINATE SENTENCING.
intermittent sentence. (1964) A sentence consisting
of periods of confinement interrupted by periods of
freedom. -Also termed (when served on weekends)
weekend sentence.
life sentence. (1878) A sentence that imprisons the
convicted criminal for life though in some juris
dictions the prisoner may become eligible for release
on good behavior, rehabilitation, or the like. (Cases:
Sentencing and Punishment (';=> 1055, 1120.]
mandatory sentence. (1926) A sentence set by law with
110 discretion for the judge to individualize punish
ment. Also termed mandatory penalty; mandatory
punishment;fixed sentence. [Cases: Sentencing and
Punishment ~'='1053, 1054.]
maximum sentence. (1898) The highest level of punish
ment provided by law for a particular crime. (Cases:
Sentencing and Punishment ~1059, 1127.)
minimum sentence. (1891) The least amount of time
that a convicted criminal must serve in prison before
becoming eligible for parole. [Cases: Sentencing and
Punishment ~1057, 1126.]
multiple sentences. (1938) Concurrent or consecutive
sentences, if a convicted criminal is found guilty of
more than one offense. [Cases: Sentencing and Pun
ishment ~500.1
nominal sentence. (1852) A criminal sentence in name
only; an exceedingly light sentence.
noncustodial sentence. (1971) A criminal sentence
(such as probation) not requiring prison time.
presumptive sentence. (1978) An average sentence for
a particular crime (esp. provided under sentencing
guidelines) that can be raised or lowered based on the
presence of mitigating or aggravating circumstances.
[Cases: Sentencing and Punishment C-::>34,654.)
prior sentence. (1863) A sentence previously imposed
on a criminal defendant for a different offense,
whether by a guilty verdict, a guilty plea, or a nolo
contendere. [Cases: Sentencing and Punishment
630-637.]
split sentence. (1927) A sentence in which part of
the time is served in confinement -to expose the
offender to the unpleasantness ofprison and the
rest on probation. See shock probation under PROBA
TION. [Cases: Sentencing and Punishment (;:;;, 1934,
1936.]
straight sentence. See determinate sentence.
suspended sentence. (1919) A sentence postponed
so that the convicted criminal is not required to
serve time unless he or she commits another crime
or violates some other court-imposed condition .
A suspended sentence, in effect, is a form of proba
tion. -Also termed withheld sentence. [Cases: Sen
tencing and Punishment C::::> 1804-1810.]
weekend sentence. See intermittent sentence.
sentence bargain. See PLEA BARGAIN.
sentence cap. Military law. A pretrial plea agreement in
a court -martial proceeding by which a ceiling is placed
on the maximum penalty that can be imposed. [Cases:
Military Justice C='990, 1326.]
sentenced to time served. (1959) A sentencing dispo
sition whereby a criminal defendant is sentenced to
the same jail time that the defendant is credited with
serving while in custody awaiting trial. The sentence
results in the defendant's release from custodv. Cf.
BALANCE OF SENTENCE SUSPENDED. [Cases: Sen'tenc
ing and Punishment (;:;;, 1156.]
sentence-factor manipulation. See sentencing entrap
ment under ENTRAPMENT.
sentence-package rule. (1996) Criminal procedure. The
principle that a defendant can be resentenced on an
aggregate sentence that is, one arising from a con
viction on multiple counts in an indictment -when
the defendant successfully challenges part of the con
viction, as by successfully challenging some but not
all of the counts.
sentencing. The judicial determination of the penalty
for a crime.
determinate sentencing. See mandatory sentencing.
discretionary sentencing. See indeterminate sentenc
ing.
fixed sentencing. See mandatory sentencing.
indeterminate sentencing. Sentencing that is left up to
the court, with few or very flexible guidelines. Also
termed discretionary sentencing. [Cases; Sentencing
and Punishment (;:;;, 1057-1059, Il25-Il27.J
mandatory sentencing. A statutorily specified penalty
that automatically follows a conviction for the offense,
often with a mi~imum mandatory term. Also
termed determinate sentencing; fixed sentencing.
[Cases: Sentencing and Punishment 1054.] presumptive sentencing. A statutory scheme that pre
scribes a sentence or range ofsentences for an offense
but allows the court some flexibility in atypical cases.
[Cases: Sentencing and Punishment (;:;;, 34,654.]
sentencing council. (1973) A panel of three or more
judges who confer to determine a criminal sentence.
Sentencing by a council occurs less frequently than
sentencing by a Single trial judge.
sentencing entrapment. See ENTRAPMENT.
sentencing guidelines. (1970) A set of standards for
determining the punishment that a convicted criminal
should receive, based on the nature of the crime and the
offender's criminal history . The federal government
and several states have adopted sentencing guidelines in
an effort to make judicial sentencing more consistent.
[Cases: Sentencing and Punishment (;:;;,650-998.]
sentencing bearing. See PRESENTENCE HEARING.
sentencing phase. See PENALTY PHASE.
Sentencing Reform Act of 1984. A federal statute
enacted to bring greater uniformity to punishments
assessed for federal crimes by creating a committee
of federal judges and other officials (the United States
Sentencing Commission) responsible for producing
sentencing gUidelines to be used by the federal courts.
28 USCA 994(a)(1).
Sentencing Table. A reference gUide used by federal
courts to calculate the appropriate punishment under
the sentencing guidelines by taking into account
the gravity of the offense and the convicted person's
criminal history. [Cases; Sentencing and Punishment
(;:;;,666-871.]
sententia (sen-ten-shee-~), n. [Latin] Roman & civil law.
1. Sense; meaning. 2. An opinion, esp. a legal opinion.
3. A judicial decision.
sententia voluntatis (sen-ten-shee-;l vol-~n-tay-tis). [Law
Latin] Hist. The determination of the will.
SEP. abbr. See simplified employee pension plan under
EMPLOYEE BENEFIT PLAN.
separability. Copyright. An element of various judicial
tests used to determine whether a design in a func
tional article is a copyrightable work ofapplied art, or
an uncopyrightable industrial design, the test being
based on whether the beholder separates the work's
artistic appearance from its useful function. _ Some
courts use a strict phYSical separability test, but most
look at whether the work's two roles are conceptually
separate. [Cases: Copyrights and Intellectual Property
(;:;;,4.]
separability clause. See SEVERABILITY CLAUSE.
separable, adj. (14c) Capable of being separated or
divided <a separable controversy>.
separable controversy. See CONTROVERSY.
separaliter (sep-a-ray-l;l-tar). [Latin] Hist. Separately.
This term was formerly used in an indictment to empha
size that multiple defendants were being charged with
separate offenses, when it appeared from the general
1487
language of the indictment that the defendants were
jointly charged.
separate, adj. (15c) (Of liability, cause of action, etc.)
individual; distinct; particular; disconnected.
separate action. See ACTION (4).
separate and apart. See LIVING SEPARATE AND APART.
separate-but-equal doctrine. (1950) The now-defunct
doctrine that African-Americans could be segregated
if they were provided with equal opportunities and
facilities in education, public transportation, and jobs.
This rule was established in Plessy v. Ferguson, 163
U.S. 537, 16 S.Ct. 1138 (1896), and overturned in Brown
v. Board ofEducation, 347 U.S. 483, 74 S.Ct. 686 (1954).
[Cases: Schools C=:> 13(2).]
separate caucus. See CAUCUS.
separate count. See COUNT.
separate covenant. See several covenant under COVENANT
(1).
separate demise. See DEMISE.
separate estate. See ESTATE (1).
separate examination. (18c) 1. The private interroga
tion ofa witness, apart from the other witnesses in the
same case. 2. The interrogation of a wife outside the
presence of her husband by a court clerk or notary for
the purpose of acknowledging a deed or other instru
ment. This was done to ensure that the wife signed
without being coerced to do so by her husband.
separate goodwill. See personal goodwill under
GOODWILL.
separate maintenance. See MAINTENANCE.
separate offense. See OFFENSE (1).
separate property. (I8c) 1. Property that a spouse owned
before marriage or acquired during marriage by inheri
tance or by gift from a third party, and in some states
property acquired during marriage but after the spouses
have entered into a separation agreement and |
or by gift from a third party, and in some states
property acquired during marriage but after the spouses
have entered into a separation agreement and have
begun living apart or after one spouse has commenced
a divorce action. -Also termed individual property.
Cf. COMMUNITY PROPERTY; marital property under
PROPERTY. [Cases: Divorce (>:::252.3(3).] 2. In some
common-law states, property titled to one spouse or
acquired by one spouse individually during marriage.
3. Property acquired during the marriage in exchange
for separate property (in sense 1 or sense 2).
separate-property state. See COMMON LAW STATE (2).
separate return. See TAX RETURN.
separate-sovereigns rule. (1995) Criminal procedure. The
principle that a person may be tried twice for the same
offense despite the Double Jeopardy Clause -if the
prosecutions are conducted by separate sovereigns, as
by the federal government and a state government or
by two different states. See DOUBLE JEOPARDY. [Cases:
Double Jeopardy C-= 183.]
separate-spheres doctrine. Hist. Family law. The com
mon-law doctrine that wives were limited to control separation of powers
ofthe home the personal or domestic sphere and
that husbands had control of the public sphere . Under
this-early-19th century doctrine, the wife was to tend
to the home and family and the husband was to be
the breadwinner. -Also termed doctrine ofseparate
spheres.
separate support. See separate maintenance under
MAINTENANCE.
separate trading of registered interest and principal
of securities. A treasury security by which the owner
receives either principal or interest, but usu. not
both. -Abbr. STRIP.
separate trial. See TRIAL.
separatim (sep-aray-tim). [Latin] Hist. Severally . This
term referred to the formation of several covenants in
a deed.
separatio (sep-a-ray-shee-oh), n. See FRUCTUS (1).
separatio bonorum. See BENEFICIUM SEPARATIONIS.
separation. (l7c) 1. An arrangement whereby a husband
and wife live apart from each other while remaining
married, either by mutual consent (often in a written
agreement) or by judicial decree; the act of carrying
out such an arrangement. -Also termed separation
from bed and board. See divorce a mensa et thoro under
DIVORCE. [Cases: Divorce Husband and Wife
C:::277.] 2. The status of a husband and wife having
begun such an arrangement, or the judgment or
contract that brought about the arrangement. -Also
termed (in both senses) legal separation; judicial separa
tion. 3. Cessation ofa contractual relationship, esp. in
an employment situation. -separate, vb.
separation agreement. (1886) 1. An agreement between
spouses in the process of a divorce or legal separation
concerning alimony, maintenance, property division,
child custody and support, and the like. Also termed
separation order (if approved or sanctioned judicially).
See temporary order under ORDER. 2. DIVORCE AGREE
MENT. [Cases: Husband and Wife C=~)277.]
separation a mensa et thoro. See divorce a mensa et
thoro under DIVORCE.
separation from bed and board. 1. SEPARATION (1). 2.
See divorce a mensa et thoro under DIVORCE.
separation ofpatrimony. Ovillaw. The act ofproViding
creditors ofa succession the right to collect against the
class of estate property from which the creditors should
be paid, by separating certain succession property from
property rights belonging to the heirs. [Cases: Descent
and Distribution (;=> 137.]
separation ofpowers. (1896) The division of governmen
tal authOrity into three branches ofgovernment leg
islative, executive, and judicial -each with specified
duties on which neither of the other branches can
encroach; a constitutional doctrine of checks and
balances designed to protect the people against tyranny.
Cf. DIVISION OF POWERS. [Cases: Constitutional Law
G=2330-2626.]
"[TJhe doctrine of the separation of powers was adopted
by the convention of 1787 not to promote efficiency but
to preclude the exercise of arbitrary power. The purpose
was not to avoid friction, but, by means of the inevitable
friction incident to the distribution of the governmental
powers among three departments, to save the people from
autocracy." Justice Louis Brandeis (as quoted in Roscoe
Pound, The Development of Constitutional Guarantees of
Liberty 94 (1957)).
"Although in political theory much has been made of the
vital importance of the separation of powers, it is extraor
dinarily difficult to define precisely each particular power.
In an ideal state we might imagine a legislature which had
supreme and exclusive power to lay down general rules
for the future without reference to particular cases; courts
whose sale function was to make binding orders to settle
disputes between IndiViduals which were brought before
them by applying these rules to the facts which were
found to exist; an administrative body which carried on
the business of government by issuing particular orders or
making decisions of policy within the narrow confines of
rules of law that it could not change. The legislature makes,
the executive executes, and the judiciary construes the
law." George Whitecross Paton, A Textbook ofJurisprudence
330 (GW. Paton & David P. Derham eds., 4th ed. 1972).
"Separation of powers means something quite different in
the European context from what it has come to mean in
the United States .... Separation of powers to an American
evokes the famil iar system of checks and balances among
the three coordinate branches of government legislative,
executive, and judiciary each with its independent con
stitutional basis. To a European, it is a more rigid doctrine
and inseparable from the notion of legislative supremacy."
Mary Ann Glendon et aI" Comparative Legal Traditions 67
(1994).
separation of witnesses. (1819) The exclusion of wit
nesses (other than the plaintiff and defendant) from
the courtroom to prevent them from hearing the testi
mony ofothers. [Cases: Criminal Law (;:::::>665; Federal
Civil Procedure (';=;>2012; Trial0=>4L]
separation order. 1. See SEPARATION AGREEMENT. 2. See
ORDER (2).
separation pay. See SEVERANCE PAY.
separatio tori (sep-Cl-ray-shee-oh tor-I). [Law Latin]
Hist. A separation of the marriage bed. See A MENSA
ETTHORO.
separator, n. Oil & gas. Equipment used at a well site
to separate oil, water, and gas produced in solution
with oiL. Basic separators simply heat oil to speed
the natural separation process, More complex separa
tors may use chemicals.
separatum tenementum (sep-Cl-ray-tClm ten-Cl-men-tClm).
[Law Latin] Hist. A separate tenement
SEP-IRA. See simplified employee pension plan under
EMPLOYEE BENEFIT PLAN.
sequatur sub suo periculo (si-kway-tClr s;)b s[y]oo-oh
pa-rik-[y];)-loh), n. [Law Latin "let him follow at his
peril"] Hist. A writ available when a sheriff returned
nihil to several summonses; speci., a writ issued after
the sheriff returned nihil to a warrant ad warrantizan
dum and follOWing an alias and a pluries writ See SICUT
ALIAS.
sequela (si-kwee-ICl), n. [Latin "that which follows"] Hist.
Suit; process, as in sequela curiae ("a suit ofcourt") and sequela causae ("the process ofa cause"). pL sequelae
(si-kwee-Iee).
sequela villanorum (si-kwee-la vil-<J-nor-<Jm). [Law
Latin] Hist. The family and appurtenances to a villein's
goods, which were at the lord's disposaL
sequence listing. Patents. A description ofthe nucleotide
or amino-acid chain in a biotechnological invention.
sequential journal. See JOURNAL OF NOTARIAL ACTS,
sequential marriage. See BIGAMY (2).
sequester (si-kwes-tar), n. (14c) 1. An across-the-board
cut in government spending. [Cases: States ~121.]2.
A person with whom litigants deposit property being
contested until the case has concluded; a sequestra
tor.
sequester, vb. (I5c) 1. To seize (property) by a writ of
sequestration. [Cases: Sequestration ~15.] 2. To seg
regate or isolate (a jury or witness) during triaL [Cases:
Criminal Law ~665, 854; Federal Civil Procedure
C:::)2012; Trial C--J 41, 303,]3. Eccles. law. To excommu
nicate. See EXCOMMlJNICATION. Also (erroneously)
termed sequestrate. [Cases: Criminal Law~665, 854;
Trial ~41,303.]
sequestered account. See ACCOUNT.
sequesterer. See SEQUESTRATOR.
sequestrarifacias (see-kwes-trair-I fay-shee-as), n. [Law
Latin "you are to cause to be sequestered"] Hist. Eccles.
law. A process to enforce a judgment against a clergy
man in a benefice, by which the bishop was ordered to
sequester a church's rents, tithes, or other profits until
the debt was paid.
sequestrate, vb. See SEQUESTER.
sequestratio (see-kwes-tray-shee-oh), n. [Latin] Roman
law. The depositing ofan object in dispute with a holder,
the sequester, either voluntarily or by court order. PL
sequestrationes (see-kwes-tray-shee-oh-neez).
sequestration (see-kwes-tray-shCln), n. (16c) 1. The
process by which property is removed from the pos
sessor pending the outcome of a dispute in which two
or more parties contend for it. Cf. ATTACHMENT (1);
GARNISHMENT, [Cases: Sequestration ~l.]
conventional sequestration. The parties' voluntary
deposit ofthe property at issue in a lawsuit.
judicial sequestration. The court-ordered deposit of
the property at issue in a lawsuit. [Cases: Sequestra
tion~L]
2. The setting apart of a decedent's personal property
when no one has been willing to act as a personal rep
resentative for the estate. 3. The process by which a
renounced interest is subjected to judicial management
and is distributed as the testator would have wished
ifhe or she had known about the renunciation. 4. A
judicial writ commanding the sheriff or other officer to
seize the goods of a person named in the writ. This
writ is sometimes issued against a civil defendant who
has defaulted or has acted in contempt ofcourt [Cases:
Sequestration ~13.] 5. The court-ordered seizure of
1489
a bankrupt's estate for the benefit ofcreditors. 6. Int'l
law. The seizure by a belligerent power of enemy assets.
[Cases: War and National Emergency 12.] 7. The
freezing of a government agency's funds; SEQUESTER
(1). [Cases: States 121.] 8. Custodial isolation of a
trial jury to prevent tampering and exposure to public
ity, or of witnesses to prevent them from hearing the
testimony of others. -Also termed (in sense 8) jury
sequestration. [Cases: Federal Civil Procedure C=>20l2;
Trial 303.]
sequestration for rent. Scots law. A landlord's remedy
to recover up to one year's unpaid rent by seizing
and selling, under court order, the tenant's personal
property. Cf. DISTRESS (2).
sequestrator (see-kwes-tray-tar). (15c) 1. An officer
appointed to execute a writ of sequestration.
"[AJ sequestrator was an officer of the Court of Chancery
acting under the order of that court in seizing property. The
law courts appear, however, to have held that the holder
of the property could resist seizure by the officer of the
Court of Chancery, and indeed kill that officer if necessary
to prevent the seizure. And if he killed the officer, he would
not be held gUilty of murder because the Court of Chancery
was an illegal tribunal or its decrees were illegal, and could
not justify an officer in seizing the property mentioned in
the order." Charles Herman Kinnane, A First Book on Anglo
American Law 306 (2d ed. 1952).
2. A person who holds property in sequestration.
Also termed sequesterer. [Cases: Sequestration Cd
14.]
sequestro habendo (si-kwes-troh ha-ben-doh), n. [Law
Latin] Hist. Eccles. law. A writ from the sovereign to
the bishop ordering the discharge of the sequestration
ofa benefice's profits.
serendipity doctrine. (1989) Criminal procedure. lhe
principle that all evidence discovered during a lawful
search is eligible to be admitted into evidence at trial.
[Cases: Criminal LawC-~394.1(1).]
serf. Hist_ A person in a condition of feudal servitude,
bound to labor at the will of a lord; a villein . Serfs
differed from slaves in that they were bound to the
native soil rather than being the absolute property of
a master.
"As the categories became indistinct, the more abject vari
eties of slavery disappeared and in the twelfth century the
word 'villein' became the general term for unfree peasants.
'Serf' did not become a legal term of art, and in so far as it
remained in use it did not connote a status lower than that
of villein. The merger was to the detriment of the villani,
but it ens |
connote a status lower than that
of villein. The merger was to the detriment of the villani,
but it ensured that full slavery was not received as part
of the common law." j.H. Baker, An Intmduction to English
Legal History 532 (3d ed. 1990).
sergeant. 1. Hist. A person who is not a knight but holds
lands by tenure of military service. 2. Hist. A munici
pal officer performing duties for the Crown. 3. Hist. A
bailiff. 4. SERGEANT-AT-ARMS. 5. A noncommissioned
officer in the armed forces ranking a grade above a
corporal. 6. An officer in the police force ranking below
a captain or lieutenant. -Also spelled serjeant. [Cases:
Municipal Corporations 180(2).] seriatim
sergeant-at-arms. 1. Hist. An armed officer attending a
sovereign. 2. An officer the Crown assigns to attend a
session of Parliament. 3. A legislative officer charged
with maintaining order and serving notices and process
on behalf ofthe legislative body and its committees.
[Cases: States (;::;>32.] 4. Parliamentary law. An officer
charged with helping keep order in a meeting under the
chair's direction. Also spelled (in senses 1, 2, & 4)
serjeant-at-arms_ -Also termed (in sense 4) warden;
warrant officer.
sergeantry. See SERJEANTY.
Sergeant Schultz defense. Slang. An assertion by a
criminal or civil defendant who claims that he or she
was not an active partiCipant in an alleged scheme
or conspiracy, and that he or she knew nothing, saw
nothing, and heard nothing . This defense is named
after a character from the television series Hogan's
Heroes, in which Sergeant Schultz, a German guard
in charge of prisoners of war during World War II,
would avoid responsibility for the prisoners' schemes
by proclaiming that he saw nothing and knew nothing.
[Cases: Criminal Law
sergeanty. See SERJEANTY.
serial bond. See BOND (3).
serial consideration. See consideration seriatim under
CONSIDERATION (2).
serial murder. See MURDER.
serial note. See installment note under NOTE (1).
serial number. 1. A number assigned to a specific thing,
esp. a product, to identify it from other things of the
same kind . While serial numbers are usually assigned
in numerical order, they may also be random. 2. Patents
& Trademarks. An identifying number assigned to a
completed patent or trademark application . The serial
number is assigned when the application is received or
completed. See APPLICATION NUMBER.
serial polygamy. See POLYGAMY (2).
serial right. The right of publication; esp., a right reserved
in a publishing contract giving the author or publisher
the right to publish the manuscript in installments (as
in a magazine) before or after the publication of the
book. [Cases: Copyrights and Intellectual Property
C=>38.]
serial violation. (1989) Civil-rights law. The practice
by an employer ofcommitting a series of discrimina
tory acts against an employee, all of which arise out
of the same discriminatory intent or animus . Such
a series of discriminatory acts will usu. be considered
a continuing violation. For a claim on the violation to
be timely, at least one of the discriminatory acts must
have taken place within the time permitted to assert the
claim (e.g., 300 days for a Title VII claim). Cf. SYSTEM
ATIC VIOLATION. [Cases: Civil Rights C=> 1505(7).J
seriatim (seer-ee-ay-tim), adj. Occurring in a series.
seriatim, adv. [Latin] One after another; in a series; suc
cessively <the court disposed of the issues seriatim>. See
1490 seriatim opinions
consideration seriatim under CONSIDERATION. Also
termed sedately (seer-ee-dt-lee).
seriatim opinions. See OPINION (1).
series bonds. See BOND (3).
series code. Patents & Trademarks. A numerical designa
tion aSSigned to any ofa group ofapplications for patent
or trademark registration filed in the U.S. Patent and
Trademark Office . The series code is part ofan appli
cation number and is followed by a slash. For example,
if the application number is 09/445,323, then 09 is the
series code, and the application is the 445,323rd appli
cation in that batch. For ordinary patent applications,
series codes are aSSigned for a group of applications
filed during a particular period. Nonprovisional patent
applications are aSSigned series codes from 01 to 10,
depending on the period during which the application
was filed. The series code for design applications is 29,
for provisional applications 60, for ex parte reexamina
tion proceedings 90, and for inter partes reexamination
proceedings 95. For trademark applications, the series
code usu. begins with numbers between 70 and 75.
Also termed batch number.
series rerum judicatarum (seer-d-eez or seer-eez reer-dm
joo-di-ka-tor-dm). [Law Latin] Scots law. A succession
of decisions deciding a particular principle, as a result
ofwhich a precedent has been established.
serious, adj. 1. (Of conduct, opinions, etc.) weighty;
important <serious violation of rules>. 2. (Of an injury,
illness, accident, etc.) dangerous; potentially resulting
in death or other severe consequences <serious bodily
harm>.
serious and willful misconduct. Workers' compensation.
An intentional act performed with the knowledge that
it is likely to result in serious injury or with a wanton
and reckless disregard of its probable consequences.
[Cases: Workers' Compensation (::=>774; 2093.J
serious bodily harm. See serious bodily injury under
INJURY.
serious bodily injury. See INJURY.
serious crime. 1. See serious offense under OFFENSE (I).
2. See FELONY (1).
serious felony. See FELONY.
serious health condition. Under the Family and Medical
Leave Act, an illness, injury, or physical or mental state
that involves in-patient care or continuing treatment
by a health care provider for several days . Excluded
from the definition are cosmetic treatments and minor
illnesses that are not accompanied by medical compli
cations. [Cases: Labor and Employment (;:=,)351(2).
serious illness. Insurance. A disorder that permanently
or materially impairs, or is likely to permanently or
materially impair, the health ofthe insured or an insur
ance applicant. [Cases: Insurance (::=>3003(9).]
seriously harmful behavior. See HARMFUL BEHAVIOR.
serious misdemeanor. See MISDEMEANOR.
serious offense. See OFFENSE (1). serjeant. I. See SERGEANT. 2. See SERJEANT-AT-LAW.
serjeant-at-arms. See SERGEANT-AT-ARMS.
serjeant-at-law. Hist. English law. A barrister ofsuperior
grade; one who had achieved the highest degree of the
legal profession, having (until 1846) the exclusive privi
lege of practicing in the Court of Common Pleas.
Every judge of the common-law courts was required
to be a serjeant-at-law until the Judicature Act of 1873.
The rank was gradually superseded by that of Queen's
Counsel. -Often shortened to serjeant. -Also termed
serjeant at the law; serjeant of the law; serjeant of the
coif; serviens narrator.
premier serjeant. The serjeant given the primary right
ofpreaudience by royal letters patent. Also termed
prime serjeant. See PREAUDIENCE.
Serjeants' Inn. Hist. A bUilding on Chancery Lane,
London, that housed the Order of Serjeants-at-Law. _
The building was sold and demolished in 1877. Until
1416, the Inn was called Faryndon's Inn or Faryndon
Inn, after Robert Faryndon, who held the lease. Two
other inns in the 15th and 16th centuries were also
called Serjeants' Inn, one in Holborn (sometimes called
Scroops's Inn) and one in Fleet Street.
serjeanty (sahr-jdn-tee). Hist. A feudal lay tenure requir
ing some form of personal service to the king . The
required service was not necessarily military. Many
household officers ofthe Crown, even those as humble
as bakers and cooks, held lands in serjeanty. -Also
spelled sergeanty. Also termed sergeantry.
grand serjeanty. Hist. Serjeanty requiring the tenant to
perform a service relating to the country's defense .
The required service could be as great as fielding an
army or as small as providing a fully equipped knight.
Sometimes the service was ceremonial or honorary,
such as carrying the king's banner or serving as an
officer at the coronation.
petit serjeanty (pet-ee). Hist. Serjeanty requiring only a
minor service ofsmall value, usu. with military sym
bolism. _ Examples include presenting an arrow or
an unstrung bow to the king.
serment (sdr-m;}nt). Hist. An oath.
serological test (seer-d-loj-d-bl). (1931) A blood
examination to detect the presence of antibodies and
antigens, as well as other characteristics, esp. as indica
tors of disease . Many states require serological tests to
determine the presence ofvenereal disease in a couple
applying for a marriage license. See BLOOD TEST.
serpentine vote. See VOTE (4).
serva aliena. See SERVUS.
servage (sdr-vij). Hist. A feudal service that a serf was
required to perform for the lord or else pay the equiva
lent value in kind or money.
servant. (l3e) A person who is employed by another
to do work under the control and direction of the
employer. A servant, such as a full-time employee,
provides personal services that are integral to an
employer's business, so a servant must submit to the
1491
employer's control of the servant's time and behavior.
See EMPLOYEE. Cf. MASTER (1). [Cases: Labor and
Employment
"A servant, strictly speaking, is a person who. by contract
or operation of law, is for a limited period subject to the
authority or control ofanother person in a particular trade.
business or occupation .... The word servant, in our legal
nomenclature, has a broad significance, and embraces
all persons of whatever rank or pOSition who are in the
employ. and subject to the direction or control of another
in any department of labor or business. Indeed it may. in
most cases, be said to be synonymous with employee."
H.G. Wood, A Treatise on the Law of Master and Servant
1, at 2 (2d ed. 1886).
fellow servant. See FELLOW SERVANT.
indentured servant. Hist. A servant who contracted to
work without wages for a fixed period in exchange for
some benefit, such as learning a trade or cancellation
ofa debt or paid passage to another country, and the
promise offreedom when the contract period expired.
Indentured servitude could be voluntary or invol
untary. A contract usu.lasted from four to ten years,
but the servant could terminate the contract sooner
by paying for the unexpired time. Convicts trans
ported to the colonies were often required to serve as
indentured servants as part oftheir sentences.
serve, vb. (ISc) 1. To make legal delivery of (a notice or
process) <a copy ofthe pleading was served on all inter
ested parties>. 2. To present (a person) with a notice or
process as required by law <the defendant was served
with process>. [Cases: Federal Civil Procedure C=>411;
Process C=>48.j
service, n. (ISc) 1. The formal delivery ofa writ, summons,
or other legal process <after three attempts, service still
had not been accomplished>. -Also termed service of
process. [Cases: Federal Civil Procedure (~'411-S18;
Process C=>48-1S0.] 2. The formal delivery ofsome
other legal notice, such as a pleading <be sure that a
certificate ofservice is attached to the motion>. [Cases:
Federal Civil Procedure C=>66S.]
actual service. See PERSONAL SERVICE (1).
constructive service. (1808) 1. See substituted service.
2. Service accomplished by a method or circumstance
that does not give actual notice.
personal service. See PERSONAL SERVICE (1).
service by publication. (1826) The service of process
on an absent or nonresident defendant by publish
ing a notice in a newspaper or other public medium.
[Cases: Federal Civil Procedure <>414; Process C::=>
84-111.]
sewer service. Slang. The fraudulent service ofprocess
on a debtor by a creditor seeking to obtain a default
judgment.
substituted service. (1840) Any method of service
allowed by law in place of personal service, such as
service by mail. -Also termed constructive service.
[Cases: Federal Civil Procedure C=>414; Process
69-111.] servient property
3. The act of doing something useful for a person or
company, usu. for a fee <your services were no longer
required>.
personal service. See PERSONAL SERVICE (2).
4. A person or company whose business is to do useful
things for others <a linen service>.
civil service. See CIVIL SERVICE.
salvage service. See SALVAGE SERVICE.
5. An intangible commodity in the form of human
effort, such as labor, skill, or advice <contract for
services>. [Cases: Contracts C=> 190.]
service, vb. (1927) To provide service for; specif., to make
interest payments on (a debt) <service the deficit>.
service by publication. See SERVICE (2). |
make
interest payments on (a debt) <service the deficit>.
service by publication. See SERVICE (2).
service charge. 1. A charge assessed for performing a
service, such as the charge assessed by a bank against
the expenses ofmaintaining or servicing a customer's
checking account. 2. lhe sum of (1) all charges payable
by the buyer and imposed by the seller as an incident
to the extension ofcredit and (2) charges incurred for
investigating the collateral or creditworthiness of the
buyer or for commissions for obtaining the credit.
UCCC 2.109. -Also termed (in sense 2) credit service
charge. [Cases: Consumer Credit
service contract. See CONTRACT.
service establishment. Under the Fair Labor Standards
Act, an establishment that, although haVing the char
acteristics ofa retail store, primarily furnishes services
to the public, such as a barber shop, laundry, or auto
mobile-repair shop.
service life. The period ofan asset's expected usefulness.
It mayor may not coincide with the asset's depre
ciable life for income-tax purposes.
servicemark. (1945) Trademarks. A name, phrase,
or other device used to identify and distinguish the
services ofa certain provider. Servicemarks identify
and afford protection to intangible things such as
services, as distinguished from the protection already
provided for marks affixed to tangible things such as
goods and products. -Often shortened to mark.
Also spelled service mark; service-mark. Cf. TRADE
MARK (1); registered trademark under TRADEMARK.
[Cases: Trademarks C=>1024.]
servicemark application. See TRADEMARK APPLICA
TION.
service-occupation tax. See TAX.
service ofprocess. See SERVICE (1).
serviens narrator (s<lr-vee-enz na-ray-t<lr). See SERjEANT
AT-LAW.
servient (sar-vee-"nt), adj. (l7c) (Of an estate) subject to a
servitude or easement. See servient estate under ESTATE
(4). [Cases: Easements C=>1.]
servient estate. See ESTATE (4).
servient property. See servient estate under ESTATE (4).
1492 servient tenant
servient tenant. See TENANT.
servient tenement. See servient estate under ESTATE
(4).
servitia solita et consueta (sar-vish-ee-a soI-a-ta kan
swee-ta). [Law Latin "services used and wont"] Scots
law. A common return required by certain charters,
usu. implying military service, from a vassal to a lord.
servitii praestatio (sar-vish-ee-I pri-stay-shee-oh). [Law
Latin] Hist. The performance of services.
servitiis acquietandis (sar-vish-ee-is a-kwI-a-tan-dis),
n. [Law Latin "for being quit of service"] Hist. A writ
exempting a person from performing certain services,
either because they are not due or because they are due
someone other than the distrainor.
servitium (sar-vish-ee-am), n. [Latin "service"} Hist. The
duty of service; esp., a tenant's duty ofperformance and
obedience to the lord.
servitium feodale et praediale (sar-vish-ee-am fee-a
day-lee [or fyoo-day-Iee] et pree-dee-ay-Iee), n. [Law
Latin} Hist. A personal service due only by reason of
lands held in fee.
servitium forinsecum (sar-vish-ee-am fa-rin-si-kam),
n. [Law Latin} Hist. A service due the king rather than
a lord.
servitium intrinsecum (s;>r-vish-ee-;>m in-trin-si-bm),
n. [Law Latin] Hist. The ordinary service due from a
tenant to the chieflord.
servitium liberum (sar-vish-ee-;>m lib-;>f-;>m), n. [Law
Latin] Hist. The service by a free tenant (not a vassal)
to the lord, as by attending the lord's court or accom
panying the lord into military service. -Also termed
liberum servitium; servitium liberum armorum.
servitium regale (s;>f-vish-ee-;>m ri-gay-lee). [Latin "royal
service"} Hist. The right of a lord of a royal manor to
settle disputes, make assessments, mint money, and
the like.
servitium scuti (sar-vish-ee-<lm sk[y]oo-tI). [Latin
"service of the shield"] Hist. Knight-service.
servitium socae (s<lr-vish-ee-am soh-see). [Latin "service
of the plow"} Hist. Socage.
servitor of bills (s3r-vi-t<lr). Hist. A messenger ofthe
marshal of the King's Bench, sent out to summon
people to court. Also termed tip-stave.
servitude. (16c) 1. An encumbrance consisting in a right
to the limited use of a piece of land or other immov
able property without the possession of it; a charge or
burden on an estate for another's benefit <the easement
by necessity is an equitable servitude>. -Servitudes
include easements, irrevocable licenses, profits, and
real covenants. See EASEMENT; LICENSE; PROFIT (2);
covenant running with the land under COVENANT (4).
[Cases: Covenants 53; Easements 1.] 2.
Roman & civil law. 1he right exercised by a dominant
tenement over a servient tenement, either adjoining
or neighboring. -This right was perpetual except for
personal servitudes; the land, rather than its owner, enjoyed the right. Although a servitude could not be
possessed because it was incorporeal, it could be pro
tected by interdict. Generally, a servitude had to be exer
cised civiliter, with as little inconvenience as possible.
There was never a closed list ofwhat constituted a ser
vitude; for example, Justinian classed personal rights in
re aliena as personal servitude. See SERVITUS (2).
acquired servitude. (1971) A servitude requiring a
special mode ofacquisition before it comes into exis
tence.
additional servitude. (18c) A servitude imposed on
land taken under an eminent-domain proceeding for
a different type of servitude, as when a highway is
constructed on land condemned for a public sidewalk.
- A landowner whose land is burdened by an addi
tional servitude is entitled to further compensation.
affirmative servitude. Civil law. See positive servi
tude.
apparent servitude. (1834) Civil law. A servitude
appurtenant that is manifested by exterior signs or
constructions, such as a roadway. Cf. nonapparent
servitude.
conservation servitude. See conservation easement
under EASEMENT.
continuous servitude. Louisiana law. See continuous
easement under EASEMENT. La. Civ. Code art. 646.
conventional servitude. Civi/law. A servitude estab
lished by agreement or through acquiSitive prescrip
tion. [Cases: Easements ~5,14.]
discontinuous servitude. See discontinuous easement
under EASEMENT.
equitable servitude. See restrictive covenant under
COVENANT (4).
landed servitude. See servitude appurtenant.
legal servitude. (18c) Civil law. A limitation that the law
imposes on the use of an estate for the benefit of the
general public or of a particular person or persons.
_ Examples of legal servitudes are restrictions on
certain uses ofthe shores ofnavigable rivers, and the
obligation of a landowner to provide a passage to an
enclosed estate.
mineral servitude. (1931) Louisiana law. A servitude
granting the right to enter another's property to
explore for and extract minerals; speci., under the
Louisiana Mineral Code, a charge on land in favor of
a person or another tract ofland, creating a limited
right to use the land to explore for and produce
minerals. -The servitude is generally eqUivalent to
the severed mineral interest in a common-law state.
Mines and Minerals 62.1, 73.1(6).]
natural servitude. (ISc) 1. A servitude naturally
appurtenant to land, requiring no special mode of
acquisition. -An example is the right ofland, unen
cumbered by buildings, to the support ofthe adjoin
ing land. 2. Civil law. A servitude imposed by law
because of the natural situation ofthe estates. -An
example of a natural servitude is a lower estate that
1493
is bound to receive waters flowing naturally from a
higher estate.
navigation servitude. 1. An easement allowing the
federal government to regulate commerce on navi
gable water without having to pay compensation for i
interfering with private ownership rights. See NAVI
GABLE WATER. [Cases: Navigable Waters~2.J
"The navigation servitude, because of its link to navigable
waters and the protection of navigation, is often confused
with the public trust doctrine. The navigation servitude,
however, is a paramount federal servitude on navigable ,
waters based on the commerce power rather than on own !
ership or trust responsibilities." Donna R. Christie, Coastal
and Ocean Management Law in a Nutshell 34 (1994).
2. An easement, based on the state police power or
public-trust doctrine, that allows a state to regulate
commerce on navigable water and provide limited
compensation for interference with private ownership
rights. A state servitude is inferior to the federal
servitude. [Cases: Navigable Waters
negative servitude. Civil law. A servitude appurte- i
nant allowing a dominant landowner to prohibit the ,
servient landowner from exercising a right. For i
example, a negative servitude, such as jus ne lumini
bus officiatur, prevents a landowner from building in
a way that blocks light from reaching another person's I
house.
nonapparent servitude. Civil law. A servitude appurte
nant that is not obvious because there are no exterior
signs of its existence . An example is a prohibition
against building above a certain height. cr. apparent
servitude.
personal servitude. (17c) 1. A servitude granting a i
specific person certain rights in property. 2. Roman '
law. A specific person's right over the property of
another, regardless ofwho the owner might be. - A
personal servitude lasted for the person's lifetime. 3.
Louisiana law. A servitude that benefits a person or
an immovable. La. Civ. Code art. 534. [Cases: Ease
ments 3.]
positive servitude. Civil law. A real servitude allowing a
person to lawfully do something on the servient land-,
owner's property, such as entering the property. -i
Also termed affirmative servitude.
predial servitude. See servitude appurtenant.
private servitude. (1922) A servitude vested in a par
ticular person. -Examples include a landowner's
personal right -of-way over an adjoining piece ofland
or a right granted to one person to fish in another's
lake.
public servitude. (1805) A servitude vested in the public
at large or in some class of indeterminate individu
als. Examples include the right of the public to use
a highway over privately owned land and the right to
navigate a river the bed of which is privately owned.
real servitude. See servitude appurtenant.
rural servitude. Roman law. A servitude chiefly affect
ing agricultural land or land in the country. -The servitus
four oldest types, iter, actus, via, and aqueductus were
all res mancipi despite being incorporeal. Most rural
servitudes were easements, but some were profits.
Also termed rustic servitude; praedium rusticum; jus
rusticorum praediorum.
servitude appurtenant. (1893) A servitude that is not
merely an encumbrance of one piece ofland but is
accessory to another piece; the right of using one piece
ofland for the benefit ofanother, such as the right of
support for a building. -Also termed real servitude;
predial (or praedial) servitude; landed servitude. La.
Civ. Code art. 646. [Cases: Easements
servitude in gross. (1884) A servitude that is not acces
sory to any dominant estate for whose benefit it exists
but is merely an encumbrance on a given piece of
land. [Cases: Easements
servitude ofdrip. Louisiana law. A servitude appurte
nant that binds the servient estate's owner to maintain
a roof so that rainwater does not drip or drain onto
the dominant estate. La. Civ. Code art. 664. Also
termed servitude ofdrip and drain. [Cases: Waters and
Water Courses (,.~121.]
servitude ofview. Louisiana law. 'Ihe dominant estate
owner's right to enjoy a view through the servient
estate and to prevent its obstruction. La. Civ. Code
art. 701. [Cases: Adjoining Landowners Ease
ments~ll, 19.]
urban servitude. (1831) 1. A servitude appertaining
to the building and construction of houses in a city,
such as the right to light and air. [Cases: Adjoining
Landowners <:::=::> 10; Easements ~11, 19.] 2. Roman
law. A servitude that primarily affects buildings or
urban land . With the exception of oneris ferendi,
urban servitudes were passive. They could be affected
by planning legislation. -Also termed (in sense 2)
praedium urbanum;jus urbanorurn praediorum.
3. The condition of being a servant or slave <under the
15th Amendment, an American citizen's right to vote
cannot be denied on account ofrace, color, or previous
condition of servitude>. 4. The condition ofa prisoner
who has been sentenced to forced labor <penal servi
tude>.
involuntary servitude. (18c) The condition of one
forced to labor for payor not for another by
coercion or imprisonment |
itude. (18c) The condition of one
forced to labor for payor not for another by
coercion or imprisonment. [Cases: Constitutional
Law~llOL]
servitude ofdrip and drain. See servitude ofdrip under
SERVITUDE (2).
servitus (sar-vi-tas), n. [Latin fr. servire "to serve") Roman
law. 1. Slavery; bondage. 2. A servitude, usu. a servitude
appurtenant as opposed to a personal servitude such as
usufruct; an easement. See rural servitude and urban
servitude under SERVITUDE (2). PI. servitutes.
servitus actus (sar-vi-tas ak-tas). (Latin "the servitude
of driving cattle"] Roman law. A type ofright-of-way;
a rural servitude entitling one to walk, ride, or drive
animals over another's property.
1494 servus
servitus altius non tollendi (s;lr-vi-t;ls al-shee-::ls
non t::l-len-dI). [Latin "the servitude of not building
higher"] Roman law. An urban servitude allowing a
person to prevent a neighbor from building a taller
house.
servitus aquae ducendae (s;lr-vi-t::ls ak-wee d[y]oo
sen-dee). [Latin "the servitude of leading water"]
Roman law. A rural servitude allowing one to bring
water to property through another's land, as by a
canal. -Also termed aquaeductus.
servitus aquae educendae (s;lr-vi-t::ls ak-wee ee-d[y]oo
sen-dee). [Latin "the servitude ofleading off water"]
Roman law. An urban servitude entitling a person to
discharge water onto another's land.
servitus aquae hauriendae (s;lr-vi-t::ls haw-ree-en-dee).
[Latin "the servitude ofdrawing water"] Roman law.
See AQUAEHAUSTUS.
servitus aquaehaustus (s;lr-vi-t::ls ak-wee haws-t::ls).
[Latin "the servitude ofdrawing water"] Roman law.
See AQUAEHAUSTUS.
servitus jluminis (s;lr-vi-t::ls floo-m::l-n::ls). [Latin "the
servitude of a stream of rainwater"] Roman law. An
urban servitude consisting in the right to divert rain
water as opposed to drip (stillicidium) onto another's
land.
servitus fumi immittendi (s;lr-vi-t::ls fyoo-mI im-::l
ten-dI). [Latin "the servitude ofdischarging smoke"]
Roman law. An urban servitude allowing a person's
chimney smoke to be directed over a neighbor's
property.
servitus itineris (s;lr-vi-t::ls I-tin-::lr-is). [Latin "the ser
vitude of way"] See ITER.
servitus luminum (s;lr-vi-t::ls loo-m::l-n::lm). [Latin "the
servitude oflights"] Roman law. An urban servitude
entitling one to receive light from a neighbor's land,
as by building windows in a common wall to light a
room.
servitus ne luminibus officiatur (s;lr-vi-t::ls nee 100
min-::l-b::ls ::l-fish-ee-ay-t::lr). [Latin "the servitude not
to hinder light"] Roman law. An urban servitude pre
venting someone's light from being obstructed by a
neighbor's building.
servitus ne prospectui officiatur (s;lr-vi-t::ls nee pr::l
spek-too-I ::l-fish-ee-ay-t::lr). [Latin "the servitude not
to intercept one's prospect"] Roman law. An urban
servitude entitling someone to an unobstructed
view.
servitus oneris ferendi (s;lr-vi-t::ls on-::l-ris f::l-ren-dI).
[Latin "the servitude ofbearing weight"] Roman law.
The urban servitude allowing a person's building
to rest on a neighbor's building, wall, or pillar. See
ONERIS FERENDI; JUS ONERIS FERENDI.
servitus pascendi (s;lr-vi-t::ls pa-sen-dI). [Latin "the ser
vitude of pasturing"] Roman law. A rural servitude
allowing one to pasture cattle on another's land.
Also termed jus pascendi. servitus pecoris ad aquam adpulsum (s;lr-vi-t::ls pek
::l-ris ad ak-w::lm ad-p;ll-s::lm). [Latin "the servitude to
drive cattle to water"] Roman law. A rural servitude
allowing one to drive cattle to water across another's
land.
servitus praedii rustici (s;lr-vi-t::ls pree-dee-I r;ls-ti-sI).
[Latin "the servitude ofa country estate"] Roman law.
A rural servitude; a servitude attached to land, as in
servitus pecoris ad aquam adpulsus. Cf. rural servi
tude under SERVITUDE (2).
servitus praedii urbani (s;lr-vi-t::ls pree-dee-I
::lr-bay-nr). [Latin "the servitude ofan urban estate"]
Roman law. An urban servitude; a servitude attached
to a building, as in servitus oneris ferendi. See urban
servitude under SERVITUDE (2).
servitus praediorum (s;lr-vi-t::ls pree-dee-or-::lm).
[Latin "praedial servitude"] Roman law. A burden
on one estate for the benefit ofanother. See servitude
appurtenant under SERVITUDE (2).
servitus projiciendi (s;lr-vi-t::ls pr::l-jish-ee-en-dI). [Latin
"the servitude of projecting"] Roman law. An urban
servitude allowing a projection from one's building
into the open space over a neighbor's property.
servitus stillicidii (s;lr-vi-t::ls stil-::l-sid-ee-I). [Latin "the
servitude of drip"] Roman law. An urban servitude
allowing water to drip from one's house onto a neigh
bor's house or ground. Cf. AQUAE IMMITTENDAE; DRIP
RIGHTS.
servitus tigni immittendi (s;lr-vi-t::ls tig-nr im-::l
ten-dI). [Latin "the servitude ofletting in a beam"]
Roman law. An urban servitude allowing one to insert
beams into a neighbor's wall.
servitus viae (s;lr-vi-t::ls vI-eel. [Latin "the servitude of
road way"] Roman law. A rural servitude allowing a
right-of-way over another's land. See VIA (2).
servus (s;lr-V::ls), n. [Latin] 1. Roman law. A slave; a
human being who was property, and could be bought,
sold, pledged, and testated. A Roman slave who was
formally freed became a Roman citizen. Cf. INGENUUS;
LATINI JUNIANI; LIBERTINII. 2. Hist. A bondman; a
servant.
sess, n. See CESS.
sessio (sesh-ee-oh), n. [Latin "a sitting"] Hist. A session;
a sitting, as in sessio parliamenti ("the sitting of Par
liament").
session. (ISc) 1. Parliamentary law. A meeting or series of
related meetings throughout which a court, legislature,
or other deliberative assembly conducts business in a
continuing sequence <the court's spring session>.
Also termed (for a court) sitting. See TERM (5).
"Parliament have three modes of separation, to wit, by
adjournment, by prorogation, or dissolution by the king,
or by the efflux of the term for which they were elected.
Prorogation or dissolution constitutes there what is called
a session, provided some act has passed. In this case all
matters depending before them are discontinued, and at
their next meeting are to be taken up de novo, if taken up
at all. Adjournment, which is by themselves, is no more
than a continuance of the session from one day to another,
1495
or for a fortnight, a month, &c. ad libitum. All matters
depending remain in statu quo, and when they meet again,
be the term ever so distant, are resumed without any fresh
commencement. at the point at which they were left. Their
whole session is considered in law but as one day, and
has relation to the first day thereof." Thomas Jefferson, A
Manual of Parliamentary Practice 127-28 (1801) (citations
omitted).
biennial session. (1854) A legislative session held every
two years . Most state legislatures have biennial
sessions, usu. held in odd-numbered years. lCases:
States (;:::;c 32.]
closed session. (1956) 1. See executive session. 2. A
session to which parties not directly involved are not
admitted. 3. Military law. A period during a court
martial when the members (or the judge, if trial is
before a military judge) deliberate alone. -Also
termed closed court. [Cases: Military Justice
1222, 1270.]
executive session. A meeting, usu. held in secret, that
only the members and invited nonmembers may
attend. The term originated in the United States
Senate, which until 1929 sat behind closed doors when
it advised the President about executive business such
as appointments and treaties. Also termed closed
session; secret session. [Cases: Administrative Law
and Procedure 124; Municipal Corporations
"Virtually all open meeting statutes expressly authorize
the use of executive sessions, typically specifying the
particular circumstances in which executive sessions are
permitted. When the specific circumstances are specified,
generally no other exceptions are permitted .... Use of the
executive session to discuss matters not properly hidden
from the public is a clear violation of the open meeting
law. Many states expressly or impliCitly forbid use of the
executive session as a subterfuge to defeat the purposes of
the open meeting law." Ann Taylor Schwing, Open Meeting
Laws 7.1, at 357, 359 (2d ed. 2000).
extraordinary session. See special session.
extra session. See special session.
joint session. (1853) The combined meeting oftwo leg
islative bodies (such as the House of Representatives
and the Senate) to pursue a common agenda. [Cases:
United States (;:::=)18.]
"When the two houses meet in a joint seSSion, they, in
effect, merge into one house where the quorum is a
majority of the members of both houses, where the votes
of members of each house have equal weight, and where
special rules can be adopted to govern joint sessions or
they can be governed by the parliamentary common law."
National Conference of State Legislatures, Mason's Manual
ofLegislative Procedure 782, at 573 (2000).
lame-duck session. (1924) A post-election legislative
session in which some of the participants are voting
during their last days as elected officials. See LAME
DUCK. [Cases: States (;:::;c32.]
open session. (1810) 1. A session to which parties
not directly involved are admitted. Also termed
public session. 2. Military law. The period during a
court-martial in which all participants are in the
courtroom. Generally, the public may attend a set aside
court-martial's open session. [Cases: Military Justice
C:::-1210.1, 1222.]
plenary session. (1936) A meeting ofall the members of
a deliberative assembly, not just a committee.
pro forma session. A legislative session held not to
conduct business but only to satisfy a constitutional
provision that neither house may adjourn for longer
than a certain time (usu. three days) without the other
house's consent.
public session. See open session (1).
quarter session. 1. English law. The meetings held four
times a year by a county's justices of the peace to
transact business, including trying certain criminal
and civil matters as specified by statute . The quarter
sessions were abolished in 1971 and replaced by the
Crown Court system. 2. Scots law. A meeting formerly
held four times a year by the justices to review
criminal sentences. -Abbr. Q.S.
regular session. (18c) A session that takes place at fixed
intervals or specified times.
secret session. See executive session.
special session. (17c) A legislative session, usu. called
by the executive, that meets outside its regular term to
consider a specific issue or to reduce backlog. Also
termed extra session; extraordinary session. [Cases:
States (;:::;c 32.]
2. The period within any given day during which such
a body is assembled and performing its duties <court is
in session>. -The terms "meeting" and "session" have
opposite but sometimes interchangeable meanings. An
organization's annual convention may consist of several
consecutive meetings that it calls "sessions," such as a
morning session and an afternoon session, or a Friday
session and a Saturday session, which are technically
meetings rather than sessions. Likewise, the organi
zation may call its convention an "annual meeting,"
which technically comprises several meetings that con
stitute a single session. Cf. .MEETI~G. 3. A trading day
in a stock market.
triple witching session. A stock-market session on
the third Friday in March, June, September, and
December during which stock options, index options
and futures contracts all expire . Stock-market vola
tility and share volume are often high on these days
session laws. (18c) 1. A body ofstatutes enacted by a leg
islature during a particular annual or biennial session.
2. The softbound booklets containing these statutes.
Also termed acts ofassembly; blue books; sheet acts.
sessions. See COURT OF GENERAL QUARTER SESSIONS OF
THE PEACE.
set-aside, n. (1943) Something (such as a percentage
of funds) that is reserved |
EACE.
set-aside, n. (1943) Something (such as a percentage
of funds) that is reserved or put aside for a specific
purpose.
set aside, vb. (18c) (Of a court) to annul or vacate (a
judgment, order, etc.) <the judge refused to set aside
the default judgment>. [Cases: Federal Civil Procedure
~'='2441, 2641; Judgment 336.]
1496 setback
setback, n. (1916) Real estate. The minimum amount of
space required between a lot line and a building line
<a 12-foot setback>. -Typically contained in zoning
ordinances or deed restrictions, setbacks are designed
to ensure that enough light and ventilation reach the
property and to keep buildings from being erected
too close to property lines. See BUSINESS LINE. [Cases:
Zoning and Planning C--'-::>64,
setback requirement. See BUILDING LINE.
set down, vb. (18c) To schedule (a case) for trial or
hearing, usu. by making a docket entry.
se te fecerit securum (see tee fes-dr-it si-kyoor-dm).
[Latin] See SI FECERIT TE SECURUM.
set forth. See SET OUT.
seti (set-ee). Mining law. A lease.
set ofexchange. Commercial law. A Single bill oflading
drawn in a set of parts, each of which is valid only if
the goods have not been delivered against any other
part. _ Bills may be drawn in duplicate or triplicate,
the first part being "first of exchange:' the second part
being "second ofexchange," and so on. When one part
has been paid, the other parts become void.
setoff, n. (I8c) 1. A defendant's counterdemand against
the plaintiff, arising out of a transaction independent
ofthe plaintiffs claim. [Cases: Federal Civil Procedure
Set-offand Counterclaim 2. A debtor's
right to reduce the amount of a debt by any sum the
creditor owes the debtor; the counterbalancing sum
owed by the creditor. -Also written set-off. -Also
termed (in civil law) compensation; stoppage. See COUN
TERCLAIM; OFFSET. Cf. RECOUPMENT (3). [Cases: Banks
and Banking 0134; Set-off and Counterclaim <8:::::>8.]
3. The balancing of mutual liabilities with respect to a
pledge relationship. -set off, vb.
"Setoff signifies the subtraction or taking away of one
demand from another opposite or cross demand, so as
to distinguish the smaller demand and reduce the greater
by the amount of the less; or. if the opposite demands are
equal, to extinguish both. It was also. formerly. sometimes
called stoppage, because the amount to be set-off was
stopped or deducted from the cross demand." Thomas W_
Waterman, A Treatise on the Law of Se tOff. Recoupment,
and Counter Claim 1, at 1 (2d ed. 1872).
"Before considering the counterclaim, a brief reference to
'the setoff' as known in former practice is necessary. By
the common law, the setting off of one demand against
another in the same action was unknown. If A had a cause
of action in debt against B, and B had another cause of
action in debt in equal amount against A. each must bring
his action. One could not be set off against the other. ThiS
was changed by statute in England in 1729, by a provi
sion which. somewhat enlarged and modified. has been
generally adopted in this country." Edwin E. Bryant, The
LawofP!eading Under the Codes ofCivil Procedure 250-51
(2d ed_ 1899).
"Setoff is defined to be a counter-demand, generally of a
liquidated debt growing out ofan independent transaction
for which an action might be maintained by the defendant
against the plaintiff." Eugene A. Jones. Manual of Equity
Pleading and Practice 65 n.42 (1916). set out, vb. (16c) To recite, explain, narrate, or incorpo
rate (facts or circumstances) <set out the terms of the
contract>. Also termed set forth.
set over, vb. (16c) To transfer or convey (property) <to
set over the land to the purchaser>.
setting, n. The date and time established by a court for a
trial or hearing <the plaintiff sought a continuance of
the imminent setting>. [Cases: Federal Civil Procedure
C=::" 1991; Trial 9.]
special setting. (1916) A preferential setting on a court's
calendar, usu. reserved for older cases or cases given
priority by law. made either on a party's motion or on
the court's own motion. -For example. some juris
dictions authorize a special setting for cases involVing
a party over the age of70. -Also termed speCial trial
setting; trial-setting preference. [Cases: Trial (;::~) 13.]
settled estate. See ESTATE (1).
settled insanity. See DELIRIUM TREMENS.
settled land. See LAND.
settlement, n. (l7c) 1. The conveyance ofproperty or
of interests in property -to provide for one or more
beneficiaries, usu. members of the settlor's family, in
a way that differs from what the beneficiaries would
receive as heirs under the statutes ofdescent and distri
bution <in marriage settlements, historically, the wife
waived her right to claim dower or to succeed to her
husband's property>. [Cases: Executors and Admin
istrators C=::"SlS.J
strict settlement. Hist. A property settlement that
aimed to keep the estate within the family by creating
successive interests in tail and shielding remainders
from destruction by the interposition of a trust. Cf.
trader's settlement.
trader's settlement. Hist. A property settlement in
which the land is put into a trust for sale, the proceeds
to be either paid out to beneficiaries over time or
divided among the settlor's heirs. Cf. strict settle
ment.
voluntary settlement. A property settlement made
without valuable consideration other than psy
chological or emotional consideration such as love
and affection from the beneficiary.
2. An agreement ending a dispute or lawsuit <the
parties reached a settlement the day before trial>.
Also termed settlement agreement. [Cases: Compro
mise and Settlement 0 LJ
derivative settlement. 1. The negotiated outcome of
a derivative action. See DERIVATIVE ACTION. 2. A
person's legal-reSidence status that is acquired though
another person. as with a child through one or both
parents.
final settlement. A court order discharging an execu
tor's duties after an estate's execution. [Cases: Execu
tors and Administrators C=::"512.J
1497
full settlement. A settlement and release ofall pending
claims between the parties. [Cases: Compromise and
Settlement
judicial settlement. The settlement ofa civil case with
the help of a judge who is not assigned to adjudicate
the dispute. _ Parties sometimes find this procedure
advantageous because it capitalizes on judicial experi
ence in evaluating the settlement value ofa claim.
mediated settlement agreement. A settlement agree
ment arrived at through mediation. -Abbr. MSA.
[Cases: Alternative Dispute Resolution C'::>484; Com
promise and Settlement (;::::c-2, 5.J
nuisance settlement. A settlement in which the defen
dant pays the plaintiff purely for economic reasons
as opposed to any notion ofresponsibility -because
without the settlement the defendant would spend
more money in legal fees and expenses caused by
protracted litigation than in paying the settlement
amount. -The money paid in such a settlement is
often termed nuisance money.
out-of-court settlement. The settlement and termina
tion of a pending suit, arrived at without the court's
participation. [Cases: Compromise and Settlement
C:Jl.J
structured settlement. A settlement in which the defen
dant agrees to pay periodic sums to the plaintiff for a
specified time.[Cases: Assignments (;::::c-62; Compro
mise and Settlement (;::::c-2.]
"EspeCially in personal injury and product liability cases,
structl.lred settlements -Le., those which provide for
an initial cash payment followed by deferred payments
in future years, normally on some annuity baSis are
becoming more frequent.... Such a structured settle
ment may have advantages over a lumpsum cash payment.
Deferred payments or arranged settlements may serve par
ticular purposes that a cash settlement could not reach,
and there will be instances when a structured settlement
will be in lieu of an all-cash settlement that would not be
acceptable to one party or the other." Alba Conte, Attorney
Fee Awards 2.31, at 101 (1993).
3. Payment, satisfaction, or final adjustment <the seller
shipped the goods after confirming the buyer's settle
ment ofthe account>.
viatical settlement (vI-at-;}-bl). [fro Latin viaticus
"relating to a road or journey"] A transaction in which
a terminally or chronically ill person sells the benefits
ofa life-insurance policy to a third party in return for
a lump-sum cash payment equal to a percentage ofthe
policy's face value. -Viatical settlements are common
with AIDS patients, many ofwhom sell their policies
at a 20% to 40% discount, depending on life expec
tancy. When the insured (called the "viator") dies,
the investor receives the insurance benefit. Also
termed life settlement. [Cases: Insurance (;::;:'1994.1
4. CLOSING <the settlement on their first home is next
Friday>. 5. Wills & estates. The complete execution of
an estate by the executor <the settlement of the estate
was long and complex>. [Cases: Executors and Admin
istrators (;::::c-502-516.] 6. The establishment of a legal
residence. This sense was frequently used in poor-Seventh Amendment
relief contexts. Cf. (in sense 6) STATUS OF IRREMOV
ABILITY. settle, vb.
settlement agent. 1. See AGENT (2). 2. See settlement
attorney under ATTORNEY.
settlement agreement. See SETTLEME:-.1T (2).
settlement attorney. See ATTORNEY.
settlement class. See CLASS (4).
settlement counsel. See CIRCUIT MEDIATOR.
settlement credit. (1979) Civil procedure. A court's reduc
tion of the amount of a jury verdict -or the effect of
the verdict on non settling defendants -to account for
settlement funds the plaintiff has received from former
defendants or from other responsible parties. [Cases:
Compromise and Settlement (;::::c-15(1); Damages
63.]
settlement date. See DATE.
settlement-first method. (1996) A means by which
to apply a settlement credit to a jury verdict, by first
redUcing the amount of the verdict by subtracting the
amount of all settlements the plaintiff has received on
the claim, then reducing the remainder by the percent
age ofthe plaintiff's comparative fault. See SETTLEMENT
CREDIT. Cf. FAULT-FIRST METHOD. [Cases: Damages
(;::::c-63.]
settlement option. See OPTION.
settlement right. Hist. A government-issued certificate
granting land to a settler.
settlement sheet. See CLOSING STATEMENT (2).
settlement statement. See CLOSING STATEMENT (2).
settlement value. See VALUE (2).
settler. (17c) 1. A person who occupies property with
the intent to establish a residence . The term is usu.
applied to an early resident of a country or region. 2.
SETTLOR.
settle up, vb. (1884) To collect, pay, and turn over debts
and property (e.g., of a decedent, bankrupt, or insol
vent business).
settlor (set-br). (18c) 1. A person who makes a settle
ment ofproperty; esp., one who sets up a trust. Also
termed creator; donor; trustor; grantor;founder. [Cases:
Trusts (;::::c-8.] 2. A party to an instrument. -Also
spelled (in both senses) settler.
set up, vb. To raise (a defense) <the defendant set up the
insanity defense on the murder charge>.
Seventeenth Amendment. lhe constitutional amend
ment, ratified in 1913, transferring the power to elect
U.S. senators from the state legislatures to the states'
voters. [Cases: United States (;::::c-1 L]
Seventh Amendment. The constitutional amendment,
ratified with the Bill ofRights in 1791, guaranteeing the
right to a jury trial in federal civil cases that are tradi
tionally considered to be suits at common law and that
have an amount in controversy exceeding $20. [Cases:
Jury (;::::c-9-14.]
72COLREGS 1498
72 COLREGS. See INTERNATIONAL RULES OF THE
ROAD.
seven-years'-absence rule. (1920) The principle that a
person who has been missing without explanation for
at least seven years is legally presumed dead. Cf. ENOCH
ARDEN LAW.
"[I]n the United States, it is quite generally held or provided
by statute that a presumption of death arises from the
continued and unexplained absence of a person from his
home or place of residence without any intelligence from or
concerning him for the period of 7 years. The presumption
has been regarded as a procedural expedient and a rule of
evidence." 22A Am. Jur. 2d Death 551, at 527 (1988).
severability. See BLUE-PENCIL TEST.
severability clause. (1935) A provision that keeps the
remaining provisions of a contract or statute in force
if any portion of that contract or statute is judicially
declared void, unenforceable, or unconstitutional.
Also termed saving clause; |
statute is judicially
declared void, unenforceable, or unconstitutional.
Also termed saving clause; separability clause. See sever
able contract under severable statute under
STATUTE. [Cases: Contracts Statutes
severable contract. See CONTRACT.
severable statute. See STATUTE.
several, adj. (I5c) 1. (Of a person, place, or thing) more
than one or two but not a lot <several witnesses>.
[Cases: Negligence (=::484; Torts 2. (Oflia
bility, etc.) separate; particular; distinct, but not neces
sarily independent <a several obligation>. 3. (Of things,
etc.) different; various <several settlement options>.
several action. See separate action under ACTION (4).
several contract. See severable contract under
CONTRACT.
several count. See COUNT.
several covenant. See COVENANT (1).
several demise. See DEMISE.
several fishery. See FISHERY (1).
several inheritance. See INHERITANCE.
several liability. See LIABILITY.
severally, adj. Distinctly; separately <severally liable>.
several obligation. See OBLIGATION.
several-remedies rule. (1975) A procedural rule that tolls
a statute of limitations for a plaintiff who has several
available forums (such as a workers'-compensation pro
ceeding and the court system) and who timely files in
one forum and later proceeds in another forum, as long
as the defendant's right and claims are not affected.
[Cases: Limitation ofActions
several tail. See TAIL.
several tenancy. See TENANCY.
severalty (sev-[;)]-r;)l-tee). (15c) Ihe state or condition of
being separate or distinct <the individual landowners
held the land in severalty, not as joint tenants>.
severance, n. (15c) 1. The act of cutting off; the state
of being cut off. 2. Civil procedure. The separation,
by the court, of the claims of multiple parties either to permit separate actions on each claim or to allow
certain interlocutory orders to become finaL Also
termed severance ofactions; severance ofclaims. See
bifurcated trial under TRIAL. Cf. CONSOLIDATION (3).
[Cases: Action (;::::>60; Federal Civil Procedure (:281.]
3. The termination ofa joint tenancy, usu. by convert
ing it into a tenancy in common. [Cases: Joint Tenancy
(=::4.] 4. The removal of anything (such as crops or
minerals) attached or affixed to real property, making
it personal property rather than a part of the land.
-Mineral rights are frequently severed from surface
rights on property that may contain oil and gas or
other minerals. 5. See SEVERANCE PAY. -sever, vb.
severable, adj.
severance damages. See DAMAGES.
severance ofactions. See SEVERANCE (2).
severance ofclaims. See SEVERANCE (2).
severance pay. Money (apart from back wages or salary)
paid by an employer to a dismissed employee. _ The
payment may be made in exchange for a release of
any claims that the employee might have against the
employer. -Sometimes shortened to severance.
Also termed separation pay; dismissal compensation.
[Cases: Labor and Employment <>::'217.]
severance tax. See TAX.
seward. See CUSTOS MARIS.
sewer service. See SERVICE (2).
sex. (14c) 1. The sum of the peculiarities of structure
and function that distinguish a male from a female
organism; gender. 2. Sexual intercourse. 3. SEXUAL
RELATIONS (2).
sex change. See SEX REASSIGNMENT.
sex discrimination. See DISCRIMINATION.
sex-offender registry. A publicly available list of the
names and addresses ofsex offenders who have been
released from prison. -The registries were started by
state statutes known as "Megan's laws." The lists are
often posted on the Internet, and some states require
publication of the offender's photograph, name, and
address in local newspapers. See MEGAN'S LAW. [Cases:
Mental Health (=::469(1).]
sex reassignment. Medical treatment intended to effect a
sex change; surgery and hormonal treatments deSigned
to alter a person's gender. -Also termed sex change.
[Cases: Health C=397, 481.J
sexual abuse. 1. See ABUSE. 2. See RAPE.
sexual activity. See SEXUAL RELATIONS.
sexual assault. 1. See ASSAULT. 2. Sec RAPE.
sexual assault by contact. See sexual assault (2) under
ASSAULT.
sexual battery. 1. See BATTERY. 2. See RAPE.
sexual exploitation. The use ofa person, esp. a child, in
prostitution, pornography, or other sexually manipula
tive activity that has caused or could cause serious emo
1499
tiona I injury. Sometimes shortened to exploitation.
[Cases: Infants 5-7; ObscenityC=::2.5.]
sexual harassment. (1973) A type of employment dis
crimination consisting in verbal or physical abuse ofa
sexual nature. See HARASSMENT. [Cases: Civil Rights
C=:c 1181.J
hostile-environment sexual harassment. (1986) Sexual
harassment in which a work environment is created
where an employee is subject to unwelcome verbal
or phYSical sexual behavior that is either severe or
pervasive. This type ofharassment might occur, for
example, if a group ofcoworkers repeatedly e-mailed
pornographic pictures to a colleague who found the
pictures offensive. [Cases: Civil Rights C=::1185.]
quidpro quo sexual harassmetlt. (1982) Sexual harass
ment in which an employment decision is based on
the satisfaction of a sexual demand. This type of
harassment might occur, for example, if a boss fired
or demoted an employee who refused to go on a date
with the boss. [Cases: Civil Rights C~::> 1184.J
same-sex sexual harassment. Sexual harassment by a
supervisor of an employee of the same sex. -Also
termed same-sex harassment. [Cases: Civil Rights
1187, 1194.]
sexually dangerous person. See SEXUAL PREDATOR.
sexually transmitted disease. A disease transmitted only
or chiefly by engaging in sexual acts with an infected
person. Common examples are syphilis and gonor
rhea. Abbr. STD. -Also termed venereal disease.
sexually violent predator. See SEXUAL PREDATOR.
sexual offense. See OFFENSE (1).
sexual orientation. (1931) A person's predisposition or
inclination toward a particular type of sexual activity
or behavior; heterosexuality, homosexuality, or bisexu
ality. There has been a trend in recent years to make
sexual orientation a protected class, esp. in employ
ment and hate-crime statutes. [Cases: Civil Rights C=::
1012, 1191.]
sexual predator. A person who has committed many
violent sexual acts or who has a propensity for com
mitting violent sexual acts. Also termed predator;
sexually dangerous person; sexually violent predator.
[Cases: Mental Health C=::452.]
sexual relations. (1909) 1. Sexual intercourse. -Also
termed carnalis copula. 2. Physical sexual activity that
does not necessarily culminate in intercourse . Sexual
relations usu. involve the touching ofanother's breast,
vagina, penis, or anus. Both persons (the toucher and
the person touched) are said to engage in sexual rela
tions. Also termed sexual activity.
SF. See sinkingfund under FUND (1).
S/F. abbr. STATUTE OF FRAUDS.
SG. abbr. 1. SOLICITOR GENERAL. 2. SURGEON GENERAL.
shack. Hist. The straying and escaping of cattle out of
their owner's land into other unenclosed land; an inter
commoning ofcattle. sham exception
shadow economy. Collectively, the unregistered
economic activities that contribute to a country's gross
national product. A shadow economy may involve
the legal and illegal production ofgoods and services,
including gambling, prostitution, and drug-dealing, as
well as barter transactions and unreported incomes.
Also termed black economy; black market; underground
economy.
shadow jury. See JURY.
shadow stock plan. See PHANTOM STOCK PLAN.
shakedown. (1902) 1. An extortion of money using
threats of violence or, in the case of a police officer,
threats of arrest. 2. See shakedown search under
SEARCH.
shakedown search. See SEARCH.
shaken-baby syndrome. The medical condition ofa child
who has suffered forceful shaking, with resulting brain
injury. The syndrome was first identified in the early
1970s. Common injuries include retinal hemorrhage
and subdural and subarachnoid hemorrhage, with
minimal or no signs ofexternal cranial trauma. Many
victims suffer blindness or death. [Cases: Criminal Law
C=::474.4(4); Infants Cd13,20.]
shakeout, n. An elimination of weak or nonproduc
tive businesses in an industry, esp. during a period of
intense competition or declining prices.
shall, vb. (bef. 12c) 1. Has a duty to; more broadly, is
required to <the requester shall send notice> <notice
shall be sent> . This is the mandatory sense that
drafters typically intend and that courts typically
uphold. [Cases: Statutes C=::227.J 2. Should (as often
interpreted by courts) <all claimants shall request
mediation>. 3. May <no person shall enter the building
without first signing the roster>. _ When a negative
word such as not or no precedes shall (as in the example
in angle brackets), the word shall often means may.
What is being negated is permission, not a requirement.
4. Will (as a future-tense verb) <the corporation shall
then have a period of 30 days to object>. 5. Is entitled
to <the secretary shall be reimbursed for all expenses>.
Only sense 1 is acceptable under strict standards of
drafting.
sham, n. (17c) 1. Something that is not what it seems; a
counterfeit. 2. A person who pretends to be something
that he or she is not; a faker. sham, vb. sham,
adj.
sham action. See ACTION (4).
sham affidavit. See AFFIDAVIT.
sham defense. See DEFENSE (1).
shame sanction. See SANCTION.
shame sentence. See shame sanction under SANCTION.
sham exception. (1969) An exception to the Noerr-Pen
nington doctrine whereby a company that petitions the
government will not receive First Amendment protec
tion or an exemption from the antitrust laws ifits intent
in petitioning the government for favorable government
1500 shaming sentence
action or treatment is really an effort to harm its com
petitors. See NOERR-PENNINGTON DOCTRINE; sham
action under ACTION (4). [Cases: Antitrust and Trade
Regulation
shaming sentence. See shame sanction under SANCTION.
sham lawsuit. See sham action under ACTION (4).
sham litigation. See sham action under ACTION (4).
sham marriage. See MARRIAGE (1).
sham petitioning. See sham action under ACTION (4).
sham plea. See sham pleading under PLEADING (1).
sham pleading. See PLEADING (1).
sham prosecution. See PROSECUTION.
sham suit. See sham action under ACTION (4).
sham transaction. (1937) An agreement or exchange
that has no independent economic benefit or business
purpose and is entered into solely to create a tax advan
tage (such as a deduction for a business loss) . The
Internal Revenue Service is entitled to ignore the
purported tax benefits of a sham transaction. [Cases:
Internal Revenue C=>3071.]
shanghaiing (shang-hl-jng). Ihe act or an instance
of coercing or inducing someone to do something
by fraudulent or other wrongful means; specif., the
practice of drugging, tricking, intoxicating, or other
wise illegally inducing a person to work aboard a vessel,
usu. to secure advance money or a premium. -Also
termed shanghaiing sailors. 18 USCA 2194. [Cases:
Seamen (;::::::>34.]
share, n. (l4c) 1. An allotted portion owned by, contrib
uted by, or due to someone <each partner's share of
the profits>.
intestate share. The share that the renouncer ofa will
would take in the decedent's assets if the decedent
had left no will affecting in any way the distribution
of assets. [Cases: Wills (;::::>717.]
2. One of the definite number of equal parts into
which the capital stock of a corporation or jOint-stock
company is divided <the broker advised his customer
to sell the stock shares when the price reaches $29>.
A share represents an equity or ownership interest
in the corporation or joint-stock company. Cf. STOCK
(4); SECURITY [Cases: Corporations C=>62; Joint
Adventures
American share. Securities. A share ofstock in a foreign
corporation issued directly to U.S. investors through
a transfer
qualifying share. A share ofcommon stock purchased
by someone in order to become a director ofa corpo
ration that requires its directors to be shareholders.
share, vb. (16c) 1. To divide (something) into portions. 2.
To enjoy or partake of (a power, right, etc.).
|
1. To divide (something) into portions. 2.
To enjoy or partake of (a power, right, etc.).
share account. See share-draft account under
ACCOUNT.
share acquisition. The acquisition of a corporation
by purchaSing all or most of its outstanding shares directly from the shareholders; TAKEOVER. Also
termed share-acquisition transaction; stock acquisition;
stock-acquisition transaction. Cf. ASSET ACQUISITION.
[Cases: Corporations 197; Securities Regulation
C=>262.1.]
share and share alike. To divide (assets, etc.) in equal
shares or proportions; to engage in per capita division.
See PER CAPITA.
share certificate. See STOCK CERTIFICATE.
sharecropping. An agricultural arrangement in which
a landowner leases land to a tenant who, in turn,
gives the landlord a portion of the crop as rent. The
landlord usu. provides the seed, fertilizer, and
ment. [Cases: Landlord and Tenant
sharecropper, n.
shared-appreciation mortgage. See MORTGAGE.
shared custody. See joint custody under CUSTODY (2).
shared-equity mortgage. See MORTGAGE.
shared parenting. See PARENTING.
share draft. See DRAFT.
share-draft account. See ACCOUNT.
shared residency. See joint physical custody under
CUSTODY.
shareholder. (1832) One who owns or holds a share or
shares in a company, esp. a corporation. Also termed
shareowner; (in a corporation) stockholder. [Cases: Cor
porations C=> 170.]
controlling shareholder. A shareholder who can influ
ence the corporation's activities because the share
holder either owns a majority of outstanding shares
or owns a smaller percentage but a Significant number
of the remaining shares are widely distributed among
many others. [Cases: Corporations
dummy shareholder. A shareholder who owns stock
in name only for the benefit of the true owner, whose
identity is usu. concealed.
interested shareholder. A person who owns enough
ofa corporation's stock to affect corporate decision
making, usu. at least 15-20% of the corporation's
outstanding stock. Also termed interested stock
holder.
majority shareholder. A shareholder who owns or
controls more than half the corporation's stock.
[Cases: Corporations 182.3.J
minority shareholder. A shareholder who owns less
than half the total shares outstanding and thus
cannot control the corporation's management or
singlehandedly elect directors. Corporations
C=>182.3.]
shareholder-control agreement. See POOLING AGREE
MENT.
shareholder derivative suit. See DERIVATIVE ACTION
(1).
shareholder oppression. See OPPRESSION (4).
1501
shareholder proposal. A proposal by one or more cor
porate stockholders to change company policy or
procedure. Ordinarily, the corporation informs all
stockholders about the proposal before the next share
holder meeting.
shareholder resolution. See RESOLUTION (2).
shareholders' equity. See OWNERS' EQUITY.
shareholder's liability. See LIABILITY.
shareholders' scheme of arrangement. See SCHEME OF
ARRANGEMENT.
shareholder voting agreement. See POOLING AGREE
MENT.
shareowner. See SHAREHOLDER.
shares outstanding. See outstanding stock under STOCK.
share split. See STOCK SPLIT.
shareware. Software that can be redistributed but not
modified and requires all users to pay a license fee.
The license fee applies to both originals and distributed
copies. Cf. FREEWARE; PROPRIETARY SOFTWARE; SEMI
FREE SOFTWARE.
share-warrant to bearer. A warrant providing that the
bearer is entitled to a certain amount of fully paid stock
shares. Delivery of the warrant operates as a transfer
ofthe shares of stock.
Sharia (sh<l-ree-<l). 1he body of Islamic religious law
applicable to police, banking, business, contracts, and
social issues . Sharia is a system oflaws, rather than
a codification oflaws, based on the Koran and other
Islamic sources.
shark repellent. 1. TAKEOVER DEFENSE. 2. More specifi
cally, a charter or bylaw provision designed to impede
hostile bids to acquire a controlling interest in a cor
poration.
sharp, adj. (1886) (Of a clause in a mortgage, deed,
etc.) empowering the creditor to take immediate and
summary action upon the debtor's default. See DROP
DEAD PROVISION.
sharp practice. (1836) Unethical action and trickery, esp.
by a lawyer. -Also termed (archaically) unhandsome
dealing. [Cases: Attorney and Client (>32(4),38.)
sharp practitioner, n.
shave, vb. (1832) 1. To purchase (a negotiable instrument)
at a greater than usual discount rate. 2. To reduce or
deduct from (a price).
sheer, n. Maritime law. A vessel's sudden deviation from
its line of course; a swerve.
sheet acts. See SESSION LAWS.
shelf company. See COMPANY.
shelf corporation. See shelf company under COMPANY.
shelf issue. See ISSUE (2).
shelf registration. See REGISTRATION (2).
shelf security. See SECURITY.
shell corporation. See CORPORATION. shelter doctrine
Shelley'S Case, Rule in. See RULE IN SHELLEY'S CASE.
shell game. A sleight-of-hand game that uses three cups
or thimble-like objects, one of which has a pea, ball,
or other small object underneath . This is a game
of chance in which one player bets that he or she can
remember under which cup the object is. lhe cups are
moved around so quickly that the player finds it dif
ficult to remember where the object is. When played
casually on public streets the shell game is usu. a
swindle because the operator palms the object rather
than leaving it under a cup, so the player has no chance
of winning. -Also termed thimblerig; thimbles and
balls. See GAME OF CHANCE. [Cases: Gaming
68(0.5).]
shelter, n. 1. A place of refuge providing safety from
danger, attack, or observation.
homeless shelter. A privately or publicly operated resi
dential facility providing overnight accommodation
free of charge to homeless people . Most homeless
shelters accept occupants on a first-come-first-served
basis and are open only from early evening to early
morning. Those that serve homeless families may
remain open throughout the day to women and
children. Some shelters offer occupants help such as
advice on finding and applying for public assistance,
employment, and medical care. [Cases: Asylums and
Assisted Living Facilities C-'J35(2).]
women's shelter. A privately or publicly operated resi
dential facility providing women (and their children)
who are victims ofdomestic violence with temporary
lodging, food, and other services such as employment
assistance, counseling, and medical care. -Also
termed family shelter.
youth shelter. 1. A privately or publicly operated resi
dential facility offering young runaway or throwaway
children and homeless young people a safe place to
stay, usu. for a short time . The residents enter the
shelter voluntarily and can leave anytime they wish.
Some shelters offer long-term transitional training so
that young people can leave street life and eventually
lead independent, productive lives. 2. An alternative
type of juvenile-detention center that is less physi
cally restrictive than a jail or boot camp . Delinquent
juveniles are usu. brought to these shelters by police
or ordered to reside there by a court. Residents attend
school or work in the daytime and may be permitted
weekend visits at their family homes.
2. See TAX SHELTER <the shelter saved the taxpayer over
$2,000 in taxes>. -shelter, vb.
shelter-care hearing. See shelter hearing under
HEARlt'G.
shelter doctrine. (1955) Commercial law. The prin
ciple that a person to whom a holder in due course
has transferred commercial paper, as well as any later
transferee, will succeed to the rights ofthe holder in
due course . As a result, transferees of holders in due
course are generally not subject to defenses against
the payment of an instrument. Ihis doctrine ensures
1502 shelter hearing
the free transferability of commercial paper. Its name
derives from the idea that the transferees "take shelter"
in the rights of the holder in due course. [Cases: Bills
and Notes (::::>362.]
shelter hearing. See HEARING.
shelving. Patents. The failure to begin or the stopping of
commercial use ofa patent during a specified period,
usu. the term of the license . A licensor may place
an anti-shelving provision in a license to ensure the
licensed product's manufacture and sale. The term usu.
applies to patented inventions, but licenses for trade
marked products may also address shelving.
shepardize, vb. (1928) 1. (often cap.) To determine the
subsequent history and treatment of(a case) by using a
printed or computerized version ofShepard's Citators.
2. Loosely, to check the precedential value of(a case) by
the same or similar means. shepardization, shepar
dizing, n.
sheriff. [Middle English shire reeve from Anglo-Saxon
scirgerefal1. A county's chief peace officer, usu. elected,
who in most jurisdictions acts as custodian of the
county jail, executes civil and criminal process, and
carries out judicial mandates within the county.
Also termed high sheriff; vice-comes. [Cases: Sheriffs
and Constables (;:::> 1.]
deputy sheriff. An officer who, acting under the direc
tion of a sheriff, may perform most of the duties of
the sheriff's office . Although undersheriffis broadly
synonymous with deputy sheriff, writers have some
times distinguished between the two, suggesting
that a deputy is appointed for a special occasion or
purpose, while an undersheriff is permanent. -Also
termed undersheriff; general deputy; Vice-sheriff
[Cases: Sheriffs and Constables (::::> 16.]
2. Scots law. The chief judge at the county level, with
limited criminal and unlimited civil jurisdiction . A
sheriff may not hear cases ofmurder or ofsome minor
offenses. In medieval times, the sheriff was the king's
representative in the shires, haVing military, adminis
trative, and judicial functions. The office was hereditary
until the Heritable Jurisdictions Act of 1746.
sheriffderk. Scots law. The clerk ofa sheriff's court.
sheriff-depute. Hist. Scots law. The qualified judge of a
district or county, acting for the titular, unqualified
sheriff.
sheriff principal. Scots law. The chief judge ofa sheriff
dom comprising one or more counties.
sheriff's court. See COURT.
sheriff's deed. See DEED.
sheriff's jury. See JURY.
sheriff's sale. See SALE.
Sherman Antitrust Act. A federal statute, passed in 1890,
that prohibits direct or indirect interference with the
freely competitive interstate production and distribu
tion ofgoods. This Act was amended by the Clayton
Act in 1914. 15 USCA 1-7. Often shortened to Sherman Act. -Also termed the Antitrust Law. ICases:
Antitrust and Trade Regulation
Sherman-Sorrells doctrine. (1998) The principle that
a defendant may claim as an affirmative defense that
he or she was not disposed to commit the offense until
a public official (often an undercover police officer)
encouraged the defendant to do so . This entrapment
defense, which is recognized in the federal system and
a majority ofstates, was developed in Sherman v. United
States, 356 U.S. 369, 78 S.Ct. 819 (1958), and Sorrells
v. United States, 287 U.S. 435, 53 S.Ct. 210 (1932).
Also termed subjective method. See ENTRAPME:-IT. Cf.
HYPOTHETICAL-PERSON DEFENSE. [Cases: Criminal
Law(;:::> 37.]
shield law. (1971) 1. A statute that affords journalists the
privilege not to reveal confidential sources. See journal
ist's privilege under PRIVILEGE (3). ICases: PriVileged
Communications and Confidentiality
"More than half of the states have 'shield laws' creating
'reporters' privileges' that are sometimes broader than
the First Amendment version of that privilege." David A.
Anderson, Freedom ofthe Press, 80 Texas L. Rev. 429, 432
(2002).
2. A statute that restricts or prohibits the use, in rape or
sexual-assault cases, of evidence about the victim's past
sexual conduct. -Also termed (in sense 2) rape shield
law; rape shield statute. [Cases: Rape (::::>40(1)-40(5).]
"The 'rape shield law.' At common law the character of
the woman as to chastity or unchastity was held to be
admissible in evidence on the theory that it had probative
value in determining whether she did or did not consent.
Defense counsel, in unrestrained zeal for an acquittal, took
advantage of this to the point that it often seemed as if
it was the victim of the rape, rather than the perpetrator,
who was on trial. ... A typical 'rape shield statute' does
not prevent the introduction of any relevant and otherwise
admissible evidence, but requires that the relevancy of any
evidence of the previous sexual conduct of the complaining
witness must be determined in a pretrial hearing before
the judge in camera." Rollin M. Perkins &Ronald N. |
witness must be determined in a pretrial hearing before
the judge in camera." Rollin M. Perkins &Ronald N. Boyce,
Criminal Law 206 (3d ed. 1982).
shifting, ad). (1874) (Of a position, place, etc.) changing
or passing from one to another <a shifting estate>.
shifting clause. (1813) At common law, a clause under
the Statute of Uses prescribing a substituted mode of
devolution in the settlement of an estate. See STATUTE
OF USES.
shifting executory interest. See EXECUTORY INTEREST.
shifting ground. Patents. The broadening of a patent
application in an amendment by claiming a feature of
the invention that was disclosed but not claimed in the
original application. [Cases: Patents (::::> 109.]
shifting inheritance. See INHERITANCE.
shifting risk. See RISK.
shifting stock of merchandise. Merchandise inventory
subject to change by purchases and sales in the course
oftrade.
shifting the burden of proof. (l805) In litigation, the
transference ofthe duty to prove a fact from one party
to the other; the passing of the duty to produce evidence
1503
in a case from one side to another as the case progresses,
when one side has made a prima facie showing on a
point ofevidence, requiring the other side to rebut it by
contradictory evidence. See BURDEN OF PROOF. [Cases:
Criminal Law 0=>327; Evidence C=>94.]
shifting trust. See TRUST.
shifting use. See USE (4).
shill. 1. A person who poses as an innocent bystander at
a confidence game but actually serves as a decoy for the
perpetrators of the scheme. 2. BY-BIDDER. -shill, vb.
shilling, n. 1. The practice of fraudulently bidding on
items at an auction solely to drive up the price . The
seller might collude with another person to bid or
might act alone and anonymously. Cf. BIDDING UP;
BY-BIDDING. [Cases: Auctions and Auctioneers 0=>7.J
2. Rist. An English coin equal to 12 pence or 1I20th of
a pound. Shillings were revalued as five pence and
phased out when decimalization was adopted in the
early 1970s. The modern five-pence coin, like its pre
decessor equal to 1/20th ofa pound, is sometimes nos
talgically referred to as a shilling.
shingle. A small, usu. dignified sign that marks the office
door ofa lawyer or other professional.
shingle theory. Securities. The notion that a broker-dealer
must be held to a high standard of conduct because
by engaging in the securities business ("hanging out
a shingle"), the broker-dealer implicitly represents to
the world that the conduct of all its employees will be
fair and meet professional norms. [Cases: Securities
Regulation C-=>27.21, 60.32(1).]
"[lIn judging the appropriate standard of care that attaches
to a broker-dealer in recommending securities to his or her
customers and in dealing with the customers' accounts,
the Commission has relied upon the 'shingle theory.' The
shingle theory is but an extension of the common law
doctrine of 'holding out.' When brokers hold themselves
out as experts either in investments in general or in the
securities of a particular issuer, they will be held to a higher
standard of care in making recommendations." Thomas
Lee Hazen, The Law ofSecurities Regulation 10.6, at 423
(2d ed. 1994).
shin plaster. Hist. Slang. 1. A bank note that has greatly
depreciated in value; esp., the paper money of the
Republic ofTexas in relation to the u.s. dollar. 2. Paper
money in denominations less than one dollar.
ship, n. A type of vessel used or intended to be used in
navigation. See VESSEL. [Cases: Shipping C:-;::> L]
chartered ship. 1. A ship specially hired to transport
the goods of only one person or company. [Cases:
Shipping 0=> 34-58.] 2. A ship on which a shipper
has chartered space for a cargo.
general ship. A ship that is set for a particular voyage to
carry the goods of any persons willing to ship goods
on it for that voyage.
ship, vb. To send (goods, documents, etc.) from one place
to another, esp. by delivery to a carrier for transporta
tion.
ship broker. Maritime law. 1. The business agent of a
shipowner or charterer; an intermediary between an ship's papers
owner or charterer and a shipper. 2. One who negoti
ates the purchase and sale ofa ship.
ship channel. Maritime law. The part of a navigable
body ofwater where the water is deep enough for large
vessels to travel safely. [Cases: Collision 0=>89; Navi
gable Waters C:> 1(5).]
shipmaster. See MASTER OF A SHIP.
shipment. 1. The transportation of goods; esp., the
delivery of goods to a carrier and subsequent issuance
of a bill oflading. 2. The goods so shipped; an order
ofgoods.
shipment contract. See CONTRACT.
Ship Mortgage Act. A federal law regulating mortgages
on ships registered as U.S. vessels by, among other
things, proViding for enforcement of maritime liens
in favor of those who furnish supplies or maintenance
to the vessels. 46 USCA 30101, 31301-43. [Cases:
Shipping C-:::>32.J
shipowner-negligence doctrine. The principle that a
shipowner is liable for an assault on a crew member if
the crew member was assaulted by a superior, during
an activity undertaken for the benefit of the ship's
business, and ifthe ship's officers could reasonably have
foreseen the assault. [Cases: Seamen 0=>29(3).]
shipper. 1. One who ships goods to another. 2. One who
contracts with a carrier for the transportation ofcargo.
As a legal term of art, the shipper may not be the
person who owns the cargo, but an agent or an inde
pendent contractor. Cf. CARRIER (1). [Cases: Carriers
(.."--:::>3.J
shipping articles. Maritime law. A document (provided
by a master ofa vessel to the mariners) detailing voyage
information, such as the voyage term, the number of
crew, and the wage rates. 46 USCA 10302. [Cases:
Seamen C:-:>7.]
shipping commissioner. An officer, appointed by the
secretary of the treasury, who is posted at a port of
entry, and vested with general supervisory authority
over seamen's contracts and welfare. In 1993, the
term was changed to "master or individual in charge."
See Pub. L. 103-206 403. [Cases: Seamen
shipping document. Any paper that covers a shipment in
trade, such as a bill oflading or letter of credit. [Cases:
Carriers (.."--:::>46-68; Shipping 0=>] 06.]
shipping law. See LAW OF SHIPPING.
shipping order. A copy ofthe shipper's instructions to a
carrier regarding the disposition of goods to be trans
ported. [Cases: Carriers C=;'61.]
ship's husband. Maritime law. A person appointed to
act as general agent of all the coowners ofa ship, as by
contracting for all necessary services, equipment, and
supplies. Cf. EXERCITOR. [Cases: Maritime Liens
28; Seamen 0=>22; Shipping C:-'::>74.]
ship's papers. Maritime law. The papers that a vessel is
required to carry to provide the primary evidence of
the ship's national character, ownership, nature and
1504 shipwreck
destination of cargo, and compliance with navigation
laws.These papers includes certificates of health,
charter-party, muster-rolls, licenses, and bills oflading.
[Cases: Shipping C=>5.]
shipwreck. Maritime law. 1. A ship's wreckage. [Cases:
Shipping C=>212.] 2. The injury or destruction of a
vessel because of circumstances beyond the owner's
control, rendering the vessel incapable ofcarrying out
its mission.
"There are two kinds of shipwreck: (1.) When the vessel
sinks or is dashed to pieces. (2.) When she is stranded,
which is, when she grounds and fills with water. The latter
may terminate in shipwreck, or may not, and it depends on
circumstances whether it will or will not justify an abandon
ment." 4 James Kent, Commentaries on American Law *323
n.(b) (George Comstock ed., 11th ed. 1866).
shire. A county in Great Britain (esp. England), origi
nally made up of many hundreds but later consisting
oflarger divisions set offby metes and bounds.
shire-gerefa. See shire-reeve under REEVE.
shire-reeve. See REEVE.
Shively presumption (shIv-lee). The doctrine that any
prestatehood grant of public property does not include
tidelands unless the grant specifically indicates other
wise. Shively v. Bowlby, 152 U.S. 1, 14 S.Ct. 548 (1894);
United States v. Holt State Bank, 270 U.S. 49, 46 S.Ct.
197 (1925). See EQUAL-FOOTING DOCTRINE. [Cases:
Navigable Waters C=>36(1).]
shock, n. A profound and sudden disturbance of the
physical or mental senses; a sudden and violent physical
or mental impression depressing the body's vital forces,
as by a sudden injury or medical procedure.
mental shock. Shock caused by agitation ofthe mental
senses and resulting in extreme grief or joy, as by
witnessing the horrific death of a family member or
winning the lottery. Cf. EMOTIONAL DISTRESS.
physical shock. Shock caused by agitation of the
physical senses, as from a sudden violent blow, impact,
collision, or concussion.
shock incarceration. See INCARCERATION.
shock probation. See PROBATION.
shock the conscience. To cause intense ethical or
humanitarian discomfort. This phrase is used as an
equitable standard for gauging whether (1) state action
amounts to a violation of a person's substantive-due
process rights, (2) a jury's award is excessive, (3) a fine,
jail term, or other penalty is disproportionate to the
crime, or (4) a contract is unconscionable. See CON
SCIENCE OF THE COURT (2). [Cases: Appeal and Error
C=> 1004(5); Constitutional Law C=> 3896; Contracts
C:-.~1; Damages C=>127.1-127.3; New Trial C=>76.]
shop, n. (l3c) A business establishment or place of
employment; a factory, office, or other place of
business.
agency shop. A shop in which a union acts as an agent
for the employees, regardless of their union mem
bership. Nonunion members must pay union dues because it is presumed that any collective bargaining
will benefit nonunion as well as union members.
closed nonunion shop. A shop in which the employer
restricts employment to workers who are unaffiliated
with any labor union.
closed shop. A shop in which the employer, by agree
ment with a union, employs only union members
in good standing . Closed shops were made illegal
under the federal Labor-Management Relations
Act. -Also termed closed union shop. See PREHIRE
AGREEMENT. Cf. closed union under UNION. [Cases:
Labor and Employment C=> 1264.]
open closed shop. A shop in which the employer hires
nonunion workers on the understanding that they
will become union members within a specified
period. -Also termed open shop. [Cases: Labor and
Employment C=> 1264.]
open shop. 1. A shop in which the employer hires
workers without regard to union affiliation. See
RIGHT-TO-WORK LAW. Cf. open union under UNION.
2. See open closed shop.
preferential nonunion shop. A shop in which nonunion
members are given preference over main members in
employment matters.
preferential shop. See preferential union shop.
preferential union shop. A shop in which union
members are given preference over nonunion
members in employment matters. -Also termed
preferential shop.
union shop. A shop in which the employer may hire
nonunion employees on the condition that they join a
union within a specified time (usu. at least 30 days).
shop-book rule. (1898) Evidence. An exception to the
hearsay rule permitting the admission into evidence
of original bookkeeping records if the books' entries
were made in the ordinary course ofbusiness and the
books are authenticated by somebody who maintains
them. [Cases: Criminal Law C=>436(2); Evidence C=>
354.]
shop books. (17c) Records oforiginal entry maintained
in the usual course ofbusiness by a shopkeeper, trader,
or other businessperson. -Also termed books of
account; account books.
shop committee. A union committee that resolves
employee complaints within a union shop. See union
shop under SHOP.
shoplifting, n. (17c) Theft of merchandise from a store
or business; specif., larceny of goods from a store or
other commercial establishment by willfully taking and
concealing the merchandise with the intention ofcon
verting the goods to one's personal use without paying
the purchase price. See LARCENY. [Cases: Larceny C=>
1.] -shoplift, vb.
"Shoplifting is a form of larceny .... As a practical matter,
however, the difficulty of proving the wrongful taking and
the felonious intent requisites for a conviction under the
general larceny statutes, together with the risk of retribu
tory civil action |
ious intent requisites for a conviction under the
general larceny statutes, together with the risk of retribu
tory civil action against the shopkeeper consequent to
1505
acquittal of an accused shoplifter, have caused shoplifting
to be established as a specific statutory crime in many juris
dictions." 50 Am. Jur. 2d Larcenv 71, at 79-80 (1995).
shop right. (1879) Patents. An employer's right to an
irrevocable, nonassignable, nonexclusive, royalty-free
license in an employee's invention, ifthe employee con
ceived and developed the invention during the course
ofemployment and used company funds and materials.
-The term derives from the idea that the right belongs
to the shop, not to the employee. Employment contracts
frequently contain patent-assignment clauses, but the
employer is entitled to the license even ifthe employee
retains the patent. Ifthe employee or consultant was
hired to invent, then the employer owns the result
ing inventions. If an employee develops an invention
independently, the employee is its sole owner. But ifan
employees uses the employer's resources to make the
invention, courts use the shop-right doctrine to order
the employee to compensate the employer. [Cases:
Labor and Employment (;'=:>308.]
shop steward. See STEWARD (2).
shore. (14c) 1. Land lying between the lines of high
and low-water mark; lands bordering on the shores of
navigable waters below the line ofordinary high water.
[Cases: Navigable WatersC='36(3); Waters and Water
Courses (>90.] 2. Land adjacent to a body ofwater
regardless ofwhether it is below or above the ordinary
high-or low-water mark. Also termed shore land.
[Cases: Navigable Waters 18, 33, 41; Waters and
Water Courses (;'=:>90-96.]
short, adj. 1. Not holding at the time ofsale the security
or commodity that is being sold in anticipation ofa fall
in price <the trader was short at the market's close>.
2. Ofor relating to a sale of securities or commodities
not in the seller's possession at the time ofsale <a short
position>. See short sale under SALE. Cf. LONG. [Cases:
Securities Regulation
short, adv. Bya short sale <sold the stock short>. See
short sale under SALE.
short, vb. To sell (a security or commodity) by a short sale
<shorted 1,000 shares of Pantheon stock>. See short sale
under SALE. [Cases: Securities Regulation
short cause. See CAUSE (J).
short-cause calendar. See CALENDAR (2).
short-cause trial. See short cause under CAUSE (3).
shortened statutory period. Patents. An amount oftime
less than 6 months, but not less than 30 days, given in
certain circumstances to a patent applicant to respond
to an office action. _ The period for most responses can
be extended up to the statutory period of 6 months.
MPEP 710.02. [Cases: Patents (;'=:> 104.]
shorter-term rule. See RULE OF THE SHORTER TERM.
short-form agreement. Labor law. A contract usu.
entered into by a small independent contractor whereby
the contractor agrees to be bound by a collective-bar
gaining agreement negotiated between a union and a
multiemployer bargaining unit. short-form bill oflading. See BILL OF LADING.
short-form merger. See MERGER.
short interest. Securities. In a short sale, the number
of shares that have not been purchased for return to
lenders. See short sale under SALE.
short lease. See LEASE.
short notice. See NOTICE.
short position. The position of an investor who borrowed
stock to make a short sale but has not yet purchased the
stock to repay the lender. See short sale under SALE.
short sale. See SALE.
short sale against the box. See SALE.
short-shipped, adj. Commercial law. Partially filled; con
taining fewer units than requested or paid for. [Cases:
Shipping (;'=:> 116.]
short summons. See SUMMONS.
short-swing profits. Profits made by a corporate insider
on the purchase and sale (or sale and purchase) of
company stock within a six-month period. -These
profits are subject to being returned to the company.
[Cases: Securities Regulation (;'=:>53.10-53.22.J
short-term alimony. See rehabilitative alimony under
ALIMONY.
short-term capital gain. See CAPITAL GAIN.
short-term debt. 1. See DEBT. 2. See current liability
under LIABILITY.
short-term loan. See LOAN.
short-term security. See SECURITY.
short-term trading. See TRADING.
short-term trust. See Clifford trust under TRlJST.
short title. See TITLE (3).
short ton. See TON.
shotgun instruction. See ALLEN CHARGE.
shotgun pleading. See PLEADING (I).
shotgun rejection. See REJECTION.
show, vb. (I2c) To make (facts, etc.) apparent or clear by
evidence; to prove.
show cause. To produce a satisfactory explanation or
excuse, usu. in connection with a motion or applica
tion to a court. [Cases: Motions (;'=:>24.]
show-cause motion. See MOTION.
show-canse order. See ORDER (2).
show-cause proceeding. (1922) A usu. expedited pro
ceeding on a show-cause order. -Also termed rule
to show cause; summary process; summary procedure;
expedited proceeding.
show-cause rule. See show-cause order under ORDER
(2).
shower (shoh-ilr), n. A person commissioned by a court
to take jurors to a place so that they may observe it as
they consider a case on which they are sitting. See VIEW
(3). [Cases: Criminal Law (;'=:>651; Trial C~::;)28.1
showing 1506
showing, n. (1857) The act or an instance of establish
ing through evidence and argument; proof <a prima
fade showing>.
show ofhands. See vote by show ofhands under VOTE
(4).
show-stopper. Corporations. An antitakeover tactic by
which the company seeks an injunction barring
the takeover usu. because the proposed merger
violates antitrust laws.
show trial. (1937) A trial, usu. in a nondemocratic
country, that is staged primarily for propagandistic
purposes, with the outcome predetermined.
showup, n. (1929) A pretrial identification procedure in
which a suspect is confronted with a witness to or the
victim ofa crime. -Unlike a lineup, a showup is a one
on-one confrontation. Cf. LINEUP. [Cases: Criminal
LawC~~339.8(5, 6).]
shrinkage. (1961) The reduction in inventory caused by
theft, breakage, or waste.
shrink-wrap license. See LICENSE.
SHU. abbr. SPECIAL HOUSING UNIT.
shutdown. (1884) A cessation ofwork production, esp.
in a factory.
shut-in royalty. See ROYALTY (2).
shut-in royalty clause. Oil & gas. A provision in an oil
and-gas lease allowing the lessee to maintain the lease
while there is no production from the property because
wells capable of production are shut in. -The lessee
pays the lessor a shut-in royalty in lieu of production.
[Cases: Mines and Minerals C:::">78.1(3).]
shuttle diplomacy. See DIPLOMACY.
shyster (Shls-t;)r). (1843) A person (esp. a lawyer) whose
business affairs are unscrupulous, deceitful, or unethi
caL
si actio (SI ak-shee-oh), n. [Latin] Hist. The closing state-,
ment in a defendant's plea demanding judgment.
si aliquid sapit (SI al-i-kwid say-pit). [Law Latin] Hist. If
he knows anything.
si antecedit ictum licet non congressum (SI an-ti-see
dit ik-t;)m II-set non bn-gres-am). [Law Latin] Hist. If
it precedes the blow, although not actually connected
with it. The phrase appeared in reference to the malice
sufficient to warrant a capital murder conviction.
SIB. abbr. 1. Securities and Investment Board. See FINAN
CIAL SERVICES AGENCY. 2. See survivor-income benefit
plan under EMPLOYEE BENEFIT PLAN.
sib; imputet (sib-I im-py;)-tet). [Latin] Hist. Let it be
imputed to himself.
sibi invigilare (sib-I in-vij-;)-lair-ee). [Latin] Hist. To
watch for themselves.
sibling. A brother or sister.
sibship. 1. The quality or state ofbeing a blood relative,
esp. a Sibling. See DEGREE.
"[Tlhe ancient Germans knew yet another calculus of
kinship, which was bound up with their law of inheritance. Within the household composed of a father and children
there was no degree; this household was regarded for this
purpose as a unit, and only when, in default of children, the
inheritance fell to remoter kinsmen, was there any need
to count the grades of 'sibship.' Thus first cousins are in
the first degree of sibship; second cousins in the second."
2 Frederick Pollock & Frederic William Maitland, History
of English Law Before the Time of Edward I 386 (2d ed.
1899).
2. A group of blood relatives; kindred.
sic (sik). [Latin "so, thus"] (1859) Spelled or used as
written. -Sic, invariably bracketed and usu. set in
italics, is used to indicate that a preceding word or
phrase in a quoted passage is reproduced as it appeared
in the original document <"that case peeked [sic] the
young lawyer's interest">.
sick leave. 1. An employment benefit allowing a worker
time off for sickness, either with or without pay, but
without loss ofseniority or other benefits. [Cases: Labor
and Employment C:::"> 182.] 2. The time so taken by an
employee.
sickness and accident insurance. See health insurance
under INSURANCE.
si constet de persona (51 kon-stet dee p;)r-soh-na). [Latin]
If it is certain who is the person meant.
si contingat (Sl kon-ting-at). [Law Latin] If it happens.
_ This term was formerly used to describe conditions
in a conveyance.
sicut alias (sl-kat ay-lee-;)s), n. [Latin "as at another
time"] Hist. A second writ issued when the first one
was not executed.
"But where a defendant absconds, and the plaintiff would
proceed to an outlawry against him, an original writ must
then be sued out regularly, and after that a capias. And if
the sheriff cannot find the defendant upon the first writ ...
there issues out an alias writ, and after that a pluries, to
the same effect as the former: only after these words
'we command you,' this clause is inserted, 'as we have
formerly,' or, 'as we have often commanded you;' 'sicut
alias' ...." 3 William Blackstone, Commentaries on the
Laws ofEng/and 283 (1768).
sicut me Deus adjuvet (sik-;)t mee dee-;)s aj-;)-vet).
[Latin] So help me God.
side, n. (l3c) 1. The position of a person or group
opposing another <the law is on our side>. 2. Either
of two parties in a transaction or dispute <each side
put on a strong case>. 3. Archaic. The field of a court's
jurisdiction <equity side> <law side>. 4. Property. In a
description ofmore or less rectangularly shaped land,
either ofthe two long boundary lines.
side agreement. See AGREEMENT.
sidebar. (1856) 1. A position at the side of a judge's
bench where counsel can confer with the judge
beyond the jury's earshot <the judge called the attor
neys to sidebar>. 2. SIDEBAR CONFERENCE <during the
sidebar, the prosecutor accused the defense attorney
of misconduct>. 3. A short, secondary article within
or accompanying a main story in a publication <the
sidebar contained information on related topics>. 4.
SIDEBAR COMMENT.
sidebar comment. (1922) An unnecessary, often argu
mentative remark made by an attorney or witness, esp.
during a trial or deposition <the witness paused after
testifying, then added a sidebar>. -Often shortened
to sidebar. Also termed sidebar remark. [Cases: Trial
(;::>lB.]
sidebar conference. (1925) 1. A discussion among the
judge and counsel, usu. over an evidentiary objection,
outside the jury's hearing. -Also termed bench con
ference. [Cases: Trial 18,50.] 2. A discussion, esp.
during voir dire, between the judge and a juror or pro
spective juror. -Often shortened to sidebar.
sidebar remark. See SIDEBAR COMMENT.
sidebar ru1e. Hist. English law. An order or rule allowed
by the court without formal application, such as an
order to plead within a particular time. Formerly,
the rules or orders were made on the motion of the
attorneys at the sidebar in court.
side judge. See JUDGE.
side lines. L The margins ofsomething, such as property.
2. A different type ofbusiness or goods than one prin
cipally engages in or sells. 3. Mining law. The boundary
lines of a mining claim not crossing |
than one prin
cipally engages in or sells. 3. Mining law. The boundary
lines of a mining claim not crossing the vein running
on each side of it. -Also written sidelines. Cf. END
LINES. [Cases: Mines and Minerals (;::> 18.J
sidenote. See MARGINAL NOTE.
s; deprehendatur (SI dep-ri-hen-day-t<lr). [LatinI Hist.
If captured.
side reports. (1943) 1. Unofficial volumes of case reports.
2. Collections of cases omitted from the official
reports.
sidesman. Eccles. law. A church officer who Originally
reported to the bishop on clerical and congregational
misdeeds, including heretical acts, and later became
a standing officer whose duties gradually devolved by
custom on the churchwarden. -Also termed synods
man; questman.
si deventum sit ad actum maleficio proximum (S1 di-ven
t"m sit ad ak-t<lm mal-<l-fish-ee-oh prok-s<l-m;)m).
[Law Latin] Hist. If it approaches an act bordering on
crime. The phrase described the determination of a
criminal attempt.
Sierra-Mobile doctrine. See MOBILE-SIERRA DOC
TRINE.
si fecerit te securum (SI fes-<lr-it tee si-kyoor-<lm). [Law
Latin] Hist. Ifhe has made you secure . These were the
initial words of a writ ordering the sheriff, upon receipt
of security from the plaintiff, to compel the defendant's
appearance in court. Also spelled (erroneously) se
te fecerit securum.
Sight. (1810) A drawee's acceptance of a draft <payable
after Sight> . The term after Sight means "after accep
tance."
sight draft. See DRAFT.
sight strike. See STRIKE (2). sigH (sij-;)I), n. A seal or an abbreviated Signature used as
a seal; esp., a seal formerly used by civil-law notaries.
sigillum (si-jil-"m), n. [Latin] A seal, esp. one impressed
on wax.
sigla (sig-l,,), n. pI. [Latin] Abbreviations and signs used
in writing, esp. by the Glossators.
sign, vb. (I5c) 1. To identify (a record) by means of a
signature, mark, or other symbol with the intent to
authenticate it as an act or agreement of the person
identifying it <both parties signed the contract>. 2. To
agree with or join <the commissioner signed on for a
four-year term>.
signal. (1949) 1. A means of communication, esp.
between vessels at sea or between a vessel and the shore.
The international code of signals assigns arbitrary
meanings to different arrangements of flags or light
displays. [Cases: Collision ~~75-79, 81, 98,100(2).]
2. In the citation oflegal authority, an abbreviation or
notation supplied to indicate some basic fact about the
authority. For example, according to the Bluebook,
the signal See means that the cited authority plainly
supports the proposition, while Cf means that the cited
authority supports a proposition analogous to (but in
some way different from) the main proposition. For
these and other signals, see The Bluebook: A Uniform
System ofCitation 1.2, at 22-24 (17th cd. 2000).
Also termed (in sense 2) citation signal.
signatorius anulus (sig-n<l-tor-ee-<ls an-Y<l-I"s). [Latin]
Roman law. A signet ring.
signatory (sig-n,,-tor-ee), n. (1866) A person or entity
that signs a document, personally or through an agent,
and thereby becomes a party to an agreement <eight
countries are signatories to the treaty>. -signatory,
signatory authority. 1. License to make a decision, esp.
to withdraw money from an account or to transfer a
negotiable instrument. 2. Patents. In the U.S. Patent
and Trademark Office, the power of an examiner to
approve an office action. [Cases: Patents (;::>104.]
signature. (16c) 1. A person's name or mark written by
that person or at the person's direction. -Also termed
sign manual. [Cases: SignaturesG'"::>I-5.] 2. Commercial
law. Any name, mark, or writing used with the inten
tion of authenticating a document. uec 1-201(37),
3-401(b). Also termed legal signature. [Cases: Bills
and Notes Contracts G'"::>35; Sales C=~29.]
"The signature to a memorandum may be any symbol
made or adopted with an intention, actual or apparent, to
authenticate the writing as that of the signer." Restatement
(Second) of Contracts 134 (1979).
digital signature. (1978) A secure, digital code attached
to an electronically transmitted message that uniquely
identifies and authenticates the sender. A digital
signature consists of a "hashed" number combined
with a number assigned to a document (a private
encryption key), Generating a signature requires the
use of private-and public-key-encryption software,
and is often activated by a simple command or act,
1508 signature card
such as clicking on a "place order" icon on a retailer's
website. Digital signatures are esp. important for elec
tronic commerce and are a key component of many
electronic message-authentication schemes. Several
states have passed legislation recognizing the legality
ofdigital signatures. See E-COMMERCE; KEY ENCRYP
TION. [Cases; Signatures 2.]
electronic signature. An electronic symbol, sound, or
process that is either attached to or logically associ
ated with a document (such as a contract or other
record) and executed or adopted by a person with the
intent to sign the document . Types of electronic sig
natures include a typed name at the end of an email, a
digital image of a handwritten signature, and the click
of an "I accept" button on an e-commerce site. The
term electronic signature does not suggest or require
the use ofencryption, authentication, or identification
measures. A document's integrity (unaltered content),
authenticity (sender's identity), and confidentiality
(of the signer's identity or document's contents) are
not ensured merely because an electronic signature is
proVided for. [Cases: Signatures
facsimile signature. (1892) 1. A signature that has been
prepared and reproduced by mechanical or photo
graphic means. 2. A signature on a document that has
been transmitted by a facsimile machine. See f'AX.
private signature. Civil law. A signature made on a
document (such as a will) that has not been witnessed
or notarizeq. [Cases: Wills
unauthorized signature. (1859) A signature made
without actual, implied, or apparent authority . It
includes a forgery. UCC 1-201(43). [Cases: Banks
and Banking C~147; Bills and Notes (::::>54, 279.]
signature card. (1902) A financial-institution record
consisting ofa customer's signature and other infor
mation that assists the institution in monitoring finan
cial transactions, as by comparing the signature on the
record with signatures on checks, withdrawal slips, and
other documents. [Cases: Banks and Banking (::::> 133,
151.]
signature crime. See CRIME.
signature evidence. See EVIDENCE.
signature loan. See LOAN.
signed, sealed, and delivered. (l7c) In a certificate of
acknowledgment, a statement that the instrument was
executed by the person acknowledging it. -Often
shortened to sealed and delivered. [Cases: Acknowl
edgment (::::>29.]
signed writing. See WRITING.
signet. 1. Civil law. An elaborate hand-drawn symbol
(usu. incorporating a cross and the notary's initials)
formerly placed at the base of notarial instruments,
later replaced by a seal. 2. Scots law. A seal used to
authenticate summonses in civil matters before the
Court of Session . Originally, this was the monarch's
personal seal. Cf. WRITER TO THE SIGNET. significant-connection jurisdiction. See JURISDIC
TION.
significant-connection/substantial-evidence juris
diction. See significant-connection jurisdiction under
JURISDICTION.
significant-relationship theory. See CENTER-OF-GRAV
ITY DOCTRINE.
significavit (sig-ni-fi-kay-vit), n. [Latin "he has signi
fied"] Eccles. law. 1. A bishop's certificate that a person
has been in a state ofexcommunication for more than
40 days. 2. A notice to the Crown in chancery, based
on the bishop's certificate, whereby a writ de contumace
capiendo (or, earlier, a writ de excommunicato capiendo)
would issue for the disobedient person's arrest and
imprisonment. See DE CONTUMACE CAPIENDO.
sign manual. 1. See SIGNATURE (1). 2. A symbol or
emblem, such as a trademark, representing words or
an idea,
signum (sig-n<lm), n. [Latin] Roman law. 1. A sign; a
seal.
"Signum. (On written documents.) A seal (a stamp) put on to
close a document in order to make its contents inaccessible
to unauthorized persons and protect against forgery. or
at the end of it after the written text. In the latter case the
seal (without or with a signature) indicated that the sealer
recognized the written declaration as his . . Signum is
also the seal of a witness who was present at the making
of a document," Adolf Berger, Encyclopedic Dictionary of
Roman Law 707 (1953).
2. An indication of something seen or otherwise per
ceived by the senses, such as a bloodstain on a murder
suspect. Pi. signa.
si institutus sine Uberis decesserit (SI in-stH[y]oo-tds
sl-nee lib-<lr-is di-ses-<lr-it). [Latin] Hist. If the insti
tuted heir should die without issue. See SUBSTITU
TION.
si ita est (SI Hi) est). [Latin] Ifit be so. This phrase was
formerly used in a mandamus writ to order a judge
to affix a seal to a bill of exceptions, if the facts were
accurately stated.
silence, n. (Be) 1. A restraint from speaking, In
criminal law, silence includes an arrestee's statements
expressing the desire not to speak and requesting an
attorney. 2. A failure to reveal something required
by law to be revealed. See estoppel by silence under
ESTOPPEL. silent, adj.
silent confirmation. See CONFIRMATION.
silentiary (sl-1en-shee-air-ee), n. 1. Roman law. An
official who maintains order in the imperial palace
and on the imperial council; a chamberlain. 2. Hist.
An officer who is sworn to silence about state secrets;
esp., a privy councillor so sworn. 3. Hist. A court usher
who maintains order and esp. silence in the court.
Also termed silentiarius.
silent partner. See PARTNER.
silent record. See RECORD.
silent-witness theory. (1973) Evidence. A method of
authenticating and admitting evidence (such as a
1509
photograph), without the need for a witness to verify
its authenticity, upon a sufficient showing of the reli
ability of the process of producing the evidence, includ
ing proofthat the evidence has not been altered. [Cases:
Criminal Law 444: Evidence C':::'359, 380.]
silk gown. 1. The professional robe worn by a Queen's
Counsel. 2. One who is a Queen's Counsel. -Often
shortened (in sense 2) to silk. Cf. STUFF GOWN.
silver certificate. Hist. A banknote issued by the United
States Treasury from 1878 to 1963 and redeemable in
silver. -The notes represented that a certain amount of
silver was on deposit with the government and would
be paid to the bearer on demand. Originally, these notes
were not legal tender and could be used only to pay
taxes and other public obligations. In 1967, Congress
abolished redemption in silver after June 1968. Silver
certificates now have the same status as Federal Reserve
notes, which are not redeemable for precious metal. Cf.
FEDERAL RESERVE NOTE; GOLD CERTIFICATE.
silver parachute. See TIN PARACHt:TE.
silver-platter doctrine. (1958) Criminal procedure. The
principle that a federal court could admit evidence
obtained illegally by a state police officer as long as
a federal officer did not participate in or request the
search. _ The Supreme Court rejected this doctrine
in Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437
(1960). [Cases: Criminal Law(;::;'394.2.]
si malitia suppleat aetatem (SI m<'l-lish-ee-<'l silp-lee-at
ee-tay-tam). [Latin] Hist. Ifmalice should supply the
want of age.
similar happenings. Evidence. Events that occur at a
time different from the time in dispute and are there
fore usu. inadmissible except to the extent that they
provide relevant information on issues that would be
fairly constant, such as the control of and conditions
on land on the day in question. [Cases: Criminal Law
~369-374; Evidence (;:::, 129-142.]
similarity. Intellectual property. The resemblance of
one trademark or copyrighted work to another.
How closely a trademark must resemble another to
amount to infringement depends on the nature of the
product and how much care the typical buyer would be
expected to take in making the selection in that par
ticular market. It is a question of overall |
how much care the typical buyer would be
expected to take in making the selection in that par
ticular market. It is a question of overall impression
rather than an element-by-element comparison of the
two marks. -Also termed imitation; colorable imita
tion. Cf. SUBSTANTIAL SIMILARITY. [Cases: Trademarks
(;:::;:; 1095.]
"It is the buyer who uses ordinary caution in making his
purchase, who is buying with the care usually exercised in
such transactions, who must be deceived by this similarity.
He who buys a box of candy does not use as much care as
he who buys a watch. He who buys a handkerchief does
not usually examine the goods offered him as carefully as
he who buys a suit of clothes." Harry D. Nims, The Law of
Unfair Competition and Trade-Marks 836 (1929).
comprehensive nonliteral similarity. Copyright. Sim
ilarity evidenced by the copying of the protected
work's general ideas or structure (such as a movie's simple assault
plot) without using the precise words or phrases of the
work. -Also termed pattern similarity.
fragmented literal similarity. Copyright. Similarity
evidenced by the copying of verbatim portions of
the protected work.
substantial similarity. Copyright. A strong resemblance
between a copyrighted work and an alleged infringe
ment, thereby creating an inference ofunauthorized
copying. -The standard for substantial similarity
is whether an ordinary person would conclude that
the alleged infringement has appropriated nontrivial
amounts of the copyrighted work's expressions.
Also termed probative similarity. See derivative work
under WORK (2). [Cases: Copyrights and Intellectual
Property ~53(1).J
similar sales. See SALE.
similiter (si-mil-i-tar). [Latin "similarly"] Common-law
pleading. A party's written acceptance of an opponent's
issue or argument; a set form of words by which a party
accepts or joins in an issue of fact tendered by the other
side. See jOinder ofissue (2) under JOINDER. [Cases:
Pleading C~100, 186.]
si minor se majorem dixerit (Sf mI-n;)r see m;)-jor-am
dik-s<'lr-it). [Latin] Hist. Ifthe minor has said that he
is major. -The phrase refers to a defense that might
be raised in a suit for a minor's claim for restitution
for minority.
simony (sim-a-nee or SI-m;)-nee), n. [fro Latin simonia
"payment for things spiritual," fro the proper name
Simon Magus (see below)] Hist. Eccles. law. The
unlawful practice ofgiving or receiving money or gifts
in exchange for spiritual promotion; esp., the unlawful
buying or selling of a benefice or the right to present
clergy to a vacant benefice.
"By simony, the right of presentation to a living is forfeited,
and vested pro hac vice in the crown. Simony is the corrupt
presentation of anyone to an ecclesiastical benefice for
money, gift, or reward. It is so called from the resemblance
it is said to bear to the sin of Simon Magus, though the
purchasing of holy orders seems to approach nearer to
his offence. It was by the canon law a very grievous crime:
and is so much the more odiOUS, because, as sir Edward
Coke observes, it is ever accompanied with perjury; for
the presentee is sworn to have committed no simony." 2
William BlaCkstone, Commentaries on the Laws ofEngiand
278 (1766).
"Simony is an offence which consists in the buying and
seiling of holy orders, and any bond or contract involving
simony is illegal and void." John Indermaur, Principles of
the Common Law 195 (Edmund H. Bennett ed., 1st Am.
ed.1878).
simple, adj. (16c) 1. (Of a crime) not accompanied by
aggravating circumstances. Cf. AGGRAVATED (1). [Cases:
Criminal Law (:~28.] 2. (Of an estate or fee) heritable
by the owner's heirs with no conditions concerning
tail. [Cases: Descent and Distribution 11; Estates
in Property (;::::>5; Wills (;::)596.]3. (Of a contract) not
made under seal. [Cases: Contracts ~~36.]
simple agreement. See AGREEMENT.
simple assault. 1. See ASSAULT (1). 2. See ASSAULT (2).
simple average. See particular average under AVERAGE.
simple battery. See BATTERY.
simple blockade. See BLOCKADE.
simple bond. See BOND (2).
simple contract. 1. See informal contract (1) under CON
TRACT. 2. See parol contract (2) under CONTRACT.
simple-contract debt. See DEBT.
simple interest. See INTEREST (3).
simple kidnapping. See KIDNAPPING.
simple larceny. See LARCENY.
simple listing. See open listing under LISTING (1).
simple majority. See MAJORITY.
simple mortgage clause. See open mortgage clause under
MORTGAGE CLAUSE.
simple negligence. See inadvertent negligence under
NEGLIGENCE.
simple obligation. See OBLIGATION.
SIMPLE plan. See EMPLOYEE BENEFIT PLAN.
simple reduction. Scots law. A court's temporary ruling
that a document is of no effect until it is produced in
court.
simple resolution. See RESOLUTION (1).
simple robbery. See ROBBERY.
simple state. See unitary state under STATE.
simple-tool rule. The principle that an employer has no
duty to warn its employees ofdangers that are obvious
to everyone involved, and has no duty to inspect a tool
that is within the exclusive control ofan employee when
that employee is fully acquainted with the tool's con
dition.
simple trust. 1. See mandatory trust under TRUST. 2. See
passive trust under TRUST.
simplex (sim-pleks), adj. [Latin] Simple; pure; uncon
ditional.
simplex dictum. See DICTUM.
simplex passagium (sim-pleks p;J-say-jee-;Jm). [Law
Latin] Hist. Simple passage (to the holy land alone) .
This type ofpilgrimage served as an excuse for absence
from court during the Crusades. -Also termed simplex
peregrinatio. Cf. IN GENERALI PASSAGIO.
simpliciter (sim-plis-i-t;Jr), adv. [Latin] (16c) 1. In a
simple or summary manner; simply. 2. Absolutely;
unconditionally; per se.
simplified employee pension plan. See EMPLOYEE
BENEFIT PLAN.
simplum (sim-pl;Jm), n. [Latin] Roman law. The single
value of something. Cf. DUPLUM.
simulated contract. See CONTRACT.
simulated fact. See FACT.
simulated judgment. See JUDGMENT.
simulated sale. See SALE. simulated transaction. See simulated sale under SALE.
simulatio latens (sim-y;J-Iay-shee-oh lay-tenz). [Latin
"hidden pretence"] Hist. Feigned enhancement of
illness, as when symptoms are present but not nearly
as severe as is pretended.
simulation. 1. An assumption of an appearance that is
feigned, false, or deceptive. 2. Civil law. A feigned, pre
tended act, usu. to mislead or deceive. 3. See simulated
contract under CONTRACT.
simul cum (sl-m;JI bm). [Latin] Together with. This
phrase was formerly used in an indictment or other
instrument to indicate that a defendant had committed
an injury jointly with others unknown.
simul et semel (sl-m;JI et sem-<:ll). [Latin] Together at one
time.
simultaneous death. See DEATH.
simultaneous-death act. See UNIFORM SIMULTANEOUS
DEATH ACT.
simultaneous-death clause. (1953) A testamentary pro
vision mandating that if the testator and beneficiary
die in a common disaster, or the order of their deaths
is otherwise unascertainable, the testator is presumed
to have survived the beneficiary . Ifthe beneficiary is
the testator's spouse, an express exception is often made
so that the spouse with the smaller estate is presumed
to have survived. See simultaneous death under DEATH.
Cf. SURVIVAL CLAUSE.
simultaneous polygamy. See POLYGAMY (1).
sine (sl-nee or sin-ay), prep. [Latin] Without.
sine animo remanendi (sl-nee an-;J-moh rem-<:l-nen-dr).
[Law Latin] Hist. Without the intention of remaining.
sine animo revertendi (sl-nee an-;J-moh ree-v;Jr-ten-dr).
[Latin] Without the intention ofreturning. See animus
revertendi under ANIMUS.
sine assensu capituli (sl-nee ;J-sen-s[y]oo b-pich-[y]
;J-II), n. [Law Latin "without the consent ofthe chapter"]
Hist. A writ for a successor to recover land that the
former bishop, abbot, or prior had alienated without
the chapter's permission.
sine consideratione curiae (sl-nee bn-sid-;J-ray-shee
oh-nee kyoor-ee-I). [Law Latin] Without the judgment
of the court.
sine cura et cu!tura (sl-nee kyoor-;J et k;Jl-t[y]oor-;J).
[Latin] Hist. Without care and culture . Natural fruits
fitting this description automatically passed to the pur
chaser of property. But industrial fruits that had to be
cultivated required a special conveyance.
sinecure (sl-n;J-kyoor or sin-;J-kyoor). [fr. Latin sine
cura "without duties"] Hist. A post without any duties
attached; an office for which the holder receives a salary
but has no responsibilities. -sinecural (sl-m-kyoor-;JI
or sI-n;J-kyoor-;JI), adj.
sine decreto (sl-nee di-kree-toh). [Latin] Without a
judge's authority.
1511 single-premium deferred annuity
sine die (SI-nee dl-ee or dl-or sin-ay dee-ay). [Latin i state court to federal court is 30 days from the day
"without day") (17c) With no day being assigned (as
for resumption of a meeting or hearing). See adjourn
sine die under ADJOURN (2); GO HENCE WITHOUT DAY.
[Cases: Courts (;=::'76; States 032.)
sine frau de (sl-nee fraw-dee). [Latin) Hist. Without
fraud.
sine hoc quod (sl-nee hok kwod). [Law Latin] Without
this, that. See ABSQUE HOC.
sine numero (sl-nee n[y]oo-mar-oh). [Law Latin "without
number"] Countless; without limit.
sine pacta (sl-nee pak-toh). [Latin) Hist. Without an
agreement.
sine prole (sl-nee proh-lee). [Latin] Without issue. -This
phrase was used primarily in genealogical tables. -
Abbr. s.p.
sine qua non (sl-nee kway non or sin-ay kwah nohn),
n. [Latin "without which not") (17c) An indispensable
condition or thing; something on which something else
necessarily depends. -Also termed conditio sine qua
non. [Cases: Negligence (~'379.]
sine quibus funus honeste dud non potest (sl-nee
kwib-ds fyoo-nds [h],,-nes-tee d[Y]OO-SI non poh-test).
[Latin] Scots law. Without which the funeral cannot be
decently conducted. _ 1he phrase appeared in reference
to funeral expenses that could be deducted against the
decedent's estate.
sine vi aut dolo (sl-nee VI awt doh-Ioh). [Latin] Hist.
Without force or fraud.
single, adj. 1. Unmarried <Single tax status>. 2. Consist
ing ofone alone; individual <Single condition> <single
beneficiary>.
single-act statute. See LONG-ARM STATUTE.
single adultery. See ADULTERY.
single-asset real estate. Bankruptcy. A single piece ofreal
property (apart from residential property with fewer
than four residential units) that a debtor operates for
business purposes, that provides the debtor with sub
stantially all his or her gross income, and that carries
aggregate, liquidated, noncontingent secured debts of
$4 million or less. 11 USCA 101(51B). [Cases: Bank
ruptcy02021.1.]
single bill. See bill Single under BILL (7).
single bond. See bill obligatory under BILL (7).
single combat. See DUEL (2).
single condition. See CONDITION (2).
Single-controversy doctrine. See ENTIRE-CONTROVERSY
DOCTRINE.
single-country fund. See MUTUAL FUND.
single creditor. See CREDITOR.
single-criminal-intent doctrine. See SINGLE-tARCENY
DOCTRINE.
single-date-of-removal doctrine. Civil procedure. The
principle that the deadline for removing a case from that any defendant receives a copy of the state-court
pleading on which the removal is based. -If a later
served defendant seeks to remove a case to federal court
more than 30 days after the day any other defendant
received the pleading, the removal is untimely even if
effectuated within 30 days after the removing defen
dant received the pleading. One theory underlying
this doctrine is that all defendants must consent to
remove a case to federal court, and a defendant who
has waited longer than 30 days to remove does not have
the capacity to consent to removal. 2 |
, and a defendant who
has waited longer than 30 days to remove does not have
the capacity to consent to removal. 28 USCA 1446(b).
See NOTICE OF REMOVAL ICases: Removal ofCases (,~
79(1).]
single demise. See DEMISE.
single-element means claim. See single-means claim
under PATENT CtAIM.
Single-entry bookkeeping. See BOOKKEEPING.
single-filing rule. Civil-rights law. The principle that an
administrative charge filed by one plaintiff in a civil
rights suit (esp. a Title VII suit) will satisfy the admin
istrative-filing requirements for all coplaintiffs who are
making claims for the same act ofdiscrimination. -But
this rule will not usu. protect a coplaintiff's claims ifthe
coplaintiff also filed an administrative charge, against
the same employer, in which different discriminatory
acts were complained of, because the administrative
agency (usu. the EEOC) and the employer are entitled
to rely on the allegations someone makes in an admin
istrative charge. [Cases: Civil Rights C=1517.]
single-impulse plan. See SINGLE-LARCENY DOCTRINE.
single-juror instruction. See lURY INSTRUCTION.
single-larceny doctrine. (1969) Criminal law. The prin
ciple that the taking of different items of property
belonging to either the same or different owners at the
same time and place constitutes one act oflarceny ifthe
theft is part ofone larcenous plan, as when it involves
essentially one continuous act or if control over the
property is exercised Simultaneously. -The thief's
intent determines the number ofoccurrences. Also
termed single-impulse plan; single-larceny rule; single
criminal-intent doctrine. [Cases: Larceny (;=:) 1.]
single-means claim. See PATENT CtAIM.
single-name paper. A negotiable instrument signed by
only one maker and not backed by a surety.
single obligation. See OBUGATJON.
single ordeal. See ORDEAL.
single original. (1815) An instrument executed singly,
not in duplicate.
single-paragraph form. Patents. A style ofwriting patent
claims that uses a colon after the introductory phrase
and a semicolon between each element. Cf. COLON
SEMICOLON FORM; OUTLINE FORM; SUBPARAGRAPH
FORM.
single-premium deferred annuity. See ANNUITY.
1512 single-premium insurance
single-premium insurance. See single-premium life
insurance under LIFE INSURANCE.
single-premium life insurance. See LIFE INSURANCE.
single-publication rule. The doctrine that a plaintiff in a
libel suit against a publisher has only one claim for each
mass publication, not a claim for every book or issue in
that run. [Cases: Libel and Slander ~26.]
single-purpose project. A facility that is designed, built,
and used for one reason only, such as to generate elec
tricity . This term most often refers to large, complex,
expensive projects such as power plants, chemical-pro
cessing plants, mines, and toll roads. Projects of this
type are often funded through project financing, in
which a special-purpose entity is established to perform
no function other than to develop, own, and operate
the facility, the idea being to limit the number of the
entity's creditors and thus provide protection for the
project's lenders. See project financing under FINANC
ING; SPECIAL-PURPOSE ENTITY; BANKRUPTCY-REMOTE
ENTITY.
single-recovery rule. See ONE-SATISFACTION RULE.
single-registration rule. Copyright. The U.S. Copyright
Office doctrine that permits only one registration for
each original work. Exceptions to the rule are rou
tinely made for unpublished works that are later pub
lished. Generally, revised works cannot be registered
a second time if the revisions are not substantial, but
the creator may be allowed to file a supplemental reg
istration. [Cases: Copyrights and Intellectual Property
~50.16.]
single-source requirement. Under the common-law
tort offalse advertising, the necessity to show that the
plaintiff is the only supplier of the genuine goods in
question and that buyers would have bought the plain
tiff's goods ifthe true nature ofthe defendant's goods
had been known. Ely-Norris Safe Co. v. Mosler Safe Co.,
7 F.2d 603 (2d Cir. 1925) . This is a narrow exception
to the common-law rule that the tort offalse advertis
ing applies only in instances ofpassing off, trade defa
mation, or trade disparagement. [Cases: Antitrust and
Trade Regulation ~19.]
singles' penalty. See MARRIAGE BONUS.
single transferable vote. See VOTE (1).
singular, adj. 1. Individual; each <all and singular>.
2. Civil law. Of or relating to separate interests in
property, rather than the estate as a whole <singular
succession>.
singular successor. See SUCCESSOR.
singular title. See TITLE (2).
singuli in solidum (sing-gYd-h in sol-d-ddm). [Latin]
Hist. Each for the whole.
"Where there are several co-obligants in one obligation,
each bound in full performance, they are said to be liable
singuli in solidum; and where each is liable only for his own
proportion of the debt, they are said to be liable pro rata."
John Trayner, Trayner's Latin Maxims 580 (4th ed. 1894).
sinking fund. See FUND (1). sinking-fund bond. See BOND (3).
sinking-fund debenture. See DEBENTURE.
sinking-fund depreciation method. See DEPRECIATION
METHOD.
sinking-fund reserve. See RESERVE.
sinking-fund tax. See TAX.
si non jure seminis, saltem jure soli (SI non joor-ee sem
i-nis, sal-tern joor-ee soh-h). [Law Latin] Hist. Ifnot by
right of seed, at least by right of soil.
si non omnes (SI non om-neez). [Latin "if not all"] Hist.
A writ allowing two or more judges to proceed in a
case ifthe whole commission cannot be present on the
assigned day.
sin tax. See TAX.
SIPA (see-Pd). abbr. SECURITIES INVESTOR PROTECTION
ACT.
si parcere ei sine suo periculo non potest (Sl pahr-sdr-ee
ee-I sl-nee s[y]oo-oh pd-rik-Yd-Ioh non poh-test).
[Latin] Roman law. Ifhe could not spare him except at
his own peril. This phrase defined the circumstances
in which a defendant could plead self-defense.
si paret (Sl par-et). [Latin] If it appears . In Roman
law, this phrase was part of the praetor's formula by
which judges were appointed and told how they were
to decide.
SIPC. abbr. SECURITIES INVESTOR PROTECTION CORPO
RATION.
si petatur tantum (Sl pi-tay-tdr tan-tdm). [Law Latin]
Hist. Ifasked only.
"In blench holdings, where the return for the lands is gener
ally elusory, that return is for the most part due and payable
si petatur tantum; and this clause, by universal practice,
has been interpreted to mean, if asked only within the
year (si petatur intra annum). If the duty is not demanded
within the year, the vassal is not liable for it." John Trayner,
Trayner's Latin Maxims 575 (4th ed. 1894).
si prius (Sl prhls). [Law Latin] Ifbefore . This phrase is
used in a writ summoning a jury.
si quis (Sl kwis). [Latin] Roman law. If anyone . This
term was used in praetorian edicts. In England, it was
also mentioned in notices posted in parish churches
requesting anyone who knows ofjust cause why a can
didate for holy orders should not be ordained to inform
the bishop.
SIR. abbr. 1. SELF-INSURED RETENTION. 2. STATUTORY
INVENTION REGISTRATION.
si recognoscat (Sl rek-dg-nos-kat). [Latin "ifhe acknowl
edges"] Hist. A writ allowing a creditor to obtain money
counted -that is, a specific sum that the debtor had
acknowledged in county court to be owed.
si sine liberis decesserit (Sl sl-nee lib-dr-is di-ses-dr-it).
[Latin] Hist. Ifhe shall have died without children.
si sit admodum grave (Sl sit ad-moh-ddm gray-vee).
[Latin] Hist. Ifit be very heinous.
si sit incompos mentis, fatuus, et naturaliter idiota (Sl
sit in-kom-pds men-tis, fach-oo-ds et nach-d-ray-li-tdr
1513 678 trust
id-ee-oh-t<7l). [Law Latin] Scots law. Ifhe is of unsound
mind, fatuous, and naturally an idiot. _ The phrase
appeared in reference to an inquiry that was posed to a
jury required to make an idiocy determination.
si sit legitimae aetatis (SI sit h-jit-d-mee ee-tay-tis).
[Latin] Hist. Ifhe (or she) is oflawful age.
sist (sist), n. Scots law. An order staying or suspending
legal proceedings. -Also termed supersedere.
sist, vb. Scots law.!. To bring into court; to summon. 2.
To stay (a judicial proceeding, etc.), esp. by court order.
3. To intervene in legal proceedings as an interested
third party, e.g., a trustee.
sister. (bef. l2c) A female who has one parent or both
parents in common with another person.
consanguine sister (kahn-sang-gwin or k<7ln-san-gwin).
Civil law. A sister who has the same father, but a dif
ferent mother.
halfsister. A sister who has the same father or the same
mother, but not both.
sister-german. A full sister; the daughter of both of
one's parents. See GERMAN.
stepsister. (lSc) The daughter ofone's stepparent.
uterine sister (yoo-t<7lr-in). Civil law. A sister who has
the same mother, but a different father.
sister corporation. See CORPORATION.
sisterhood. See GIFTING CLUB.
sister-in-law. (15c) The sister ofone's spouse or the wife
of one's brother. -The wife ofone's spouse's brother is
also sometimes considered a sister-in-law. PI. sisters
in-law.
sistership exclusion. See EXCLUSION (3).
sistren, n. Sisters, esp. those considered spiritual kin
(such as female colleagues on a court). Cf. BRETHREN.
sit, vb. (l4c) L (Of a judge) to occupy a judicial seat <Judge
\Vilson sits on the trial court for the Eastern District
of Arkansas>. 2. (Of a judge) to hold court or perform
offIcial functions <is the judge sitting this week?>. 3.
(Of a court or legislative body) to hold proceedings <the
U.S. Supreme Court sits from October to June>.
sit-and-squirm test. A judicial doctrine, used esp. by
administrative-law judges in disability-claim cases,
whereby a court subjectively determines a set of traits
that it expects the claimant to exhibit and denies relief if
the claimant fails to exhibit those traits. -The doctrine
is adhered to only in some federal circuits and has been
expressly rejected in others. Generally, an administra
tive-law judge may observe a claimant's demeanor in
evaluating the credibility of the complaint. Yet it is
error for the judge to base a judgment solely on personal
observation and not on the record as a whole.
sit-down strike. See STRIKE.
site. 1. A place or location; esp., a piece of property set
aside for a specific use. 2. SCITE.
site assessment. See transactional audit under AUDIT. site license. See LICENSE.
site plan. (1937) An illustrated proposal for the develop
ment or use ofa particular piece ofreal property. -The
illustration is usu. a map or sketch ofhow the property
will appear if the proposal is accepted. Some zoning
ordinances require a developer to present a site plan to
the city council and to receive council approval before
certain projects may be completed. [Cases: Zoning and
Planning ~245, 372.1.]
sit-in, n. An organized, passive demonstration in which
participants usu. sit (or lie) down and refuse to leave a
place as a means ofprotesting against policies or activi
ties. Sit-ins originated as a communal act ofprotest
ing racial segregation. People who were discriminated
against would sit in places that were prohibited to them
and refuse to leave. Later the term came to reter to any
group protest, as with anti-Vietnam War protests and
some labor strikes. Cf. sit-down strike under STRIKE.
sitio ganado mayor (sit-yoh gah-nah-doh mI-yor).
Spanish & Mexican law. A square unit ofland with
each side measuring 5,000 varas (about 4,583 yards).
lhis term is found in old land grants in states that were
formerly Spanish provinces or governed by Mexico. See
VARA. Spanish & Mexican law. A unit ofland shaped
like a square with each side measuring 5,000 varas
(about 4,583 yards). -Ihis term is sometimes found
in old land grants in states that were formerly Spanish
colonies or governed by Mexico. See VARA.
sitting, n. (l4c) A court session; esp., a session of an
appellate court. See SESSION (1).
en banc sitting. (1944) A court session in which all the
judges (or a quorum) participate. See EN BANC.
in camera sitting. |
A court session in which all the
judges (or a quorum) participate. See EN BANC.
in camera sitting. (1976) A court session conducted by
a judge in chambers or elsewhere outside the court
room. See IN CAMERA.
situation. 1. Condition; position in reference to cir
cumstances <dangerous situation>. 2. The place where
someone or something is occupied; a location <situa
tion near the border>.
situational offender. See OFFENDER.
situation ofdanger. See DANGEROUS SITUATION.
situs (SI-t<7lS). [Latin] (1834) The location or position (of
something) for legal purposes, as in lex situs, the law
of the place where the thing in issue is situated. See
Loces.
tax situs. See TAX SITUS.
si vidua manserit et non nupserit (51 vij-yoO-<l man-
8<lr-it et non nap-s<7Ir-it). [Law Latin] Hist. Ifshe should
remain a widow and not marry. -This requirement was
a common condition in a widow's provision.
Six Clerks. Hist. A collective name for the clerks of the
English Court of Chancery who filed pleadings and
other papers . The office was abolished in 1842, and
its duties transferred to the Clerk of Enrollments in
Chancery and to the Clerks of Records and Writs.
678 trust. See nongrantor-owner trust under TRUST (3).
1514 Sixteenth Amendment
Sixteenth Amendment. The constitutional amendment,
ratified in 1913, allowing Congress to tax income.
[Cases: Internal Revenue <):;:'3067.]
Sixth Amendment. The constitutional amendment,
ratified with the Bill of Rights in 1791, guaranteeing
in criminal cases the right to a speedy and public trial
by jury, the right to be informed of the nature of the
accusation, the right to confront witnesses, the right
to counsel, and the right to compulsory process for
obtaining favorable witnesses.
sixth-sentence remand. See REMAl\D.
sixty derks. See SWORN CI.ERKS IN CHAl\CERY.
sixty-day notice. Labor law. Under the Taft-Hartley Act,
the 60-day advance notice required for either party to a
collective-bargaining agreement to reopen or terminate
the contract. _ During this period, strikes and lockouts
are prohibited. 29 USCA lS8(d)(l).
S.J.D. See DOCTOR OF JURIDICAL SCIENCE.
SJI. See STATE JUSTICE INSTITUTE.
skeletallegislation. See LEGISLATION.
skeleton bill. See BILL (7).
skeleton bill ofexceptions. See BILL (2).
skeleton legislation. See skeletal legislation under LEG
ISLATION.
skill. Special ability and proficiency; esp., the practical
and familiar knowledge ofthe principles and processes
of an art, science, or trade, combined with the ability
to apply them appropriately, with readiness and dex
terity. -Skill is generally considered more than mere
competence. It is a special competence that is not a part
of the reasonable person's ordinary equipment, but
that results from aptitude cultivated through special
training and experience.
ordinary skill. The skill of a typical person who
performs a given task or job.
reasonable skill. The skill ordinarily possessed and
used by persons engaged in a particular business.
skilled artisan. See ARTISAN.
skilled witness. See expert witness under WITNESS.
skilled work. See WORK (1).
skip bail. See JUMP BAIL.
skip person. (1988) Tax. A beneficiary who is more
than one generation removed from the transferor and
to whom assets are conveyed in a generation-skipping
transfer. IRC (26 lJSCA) 2613(a). See GENERATION
SKIPPING TRANSFER. [Cases: Internal Revenue
4224.]
"Since a skip person is necessary to trigger a generation
skipping tax, it is important to have a precise definition of
'skip person: In most cases, it suffices to say that a skip
person is a person who is two or more generations younger
than the transferor." John K. McNulty, Federal Estate and
Gift Taxation in a Nutshell 63 (5th ed. 1994).
skippeson. See ESKIPPESON. skiptracing agency. (1984) A service that locates persons
(such as delinquent debtors, missing heirs, witnesses,
stockholders, bondholders, etc.) or missing assets (such
as bank accounts).
skyjack, vb. Slang. To hijack an aircraft. See HIJACK (1).
skyjacking, n.
S.L. abbr. 1. Session law. See SESSION LAWS. 2. Statute
law.
slack tax. See pickup tax under TAX.
slamming. The practice by which a long-distance tele
phone company wrongfully appropriates a customer's
service from another company, usu. through an unau
thorized transfer or by way ofa transfer authorization
that is disguised as something else, such as a form to
sign up for a free vacation. [Cases: Telecommunica
tions C:::'863.)
slander, n. (Be) 1. A defamatory assertion expressed in a
transitory form, esp. speech. -Damages for slander
unlike those for libel are not presumed and thus
must be proved by the plaintiff (unless the defamation
is slander per se). [Cases: Libel and Slander C:::' 1, 24, 32,
33.)2. The act ofmaking such a statement. See DEFAMA
TION. Cf. LIBEL (1). slander, vb. -slanderous, adj.
"Although libel and slander are for the most part governed
by the same principles, there are two important differ
ences: (1) Libel is not merely an actionable tort, but also a
criminal offence, whereas slander is a civil injury only. (2)
Libel is in all cases actionable per se; but slander is, save in
special cases, actionable only on proof of actual damage.
This distinction has been severely criticised as productive
of great injustice." R.F.V. Heuston, Salmond on the Law of
Torts 139 (17th ed. 1977).
slander per quod. (18c) Slander that does not qualify
as slander per se, thus forcing the plaintiff to prove
special damages. [Cases: Libel and Slander <):;: 11,
33.]
slander per se. (1841) Slander for which special damages
need not be proved because it imputes to the plaintiff
anyone ofthe following: (1) a crime involving moral
turpitude, (2) a loathsome disease (such as a sexually
transmitted disease), (3) conduct that would adversely
affect one's business or profession, or (4) unchastity
(esp. ofa woman). [Cases: Libel and Slander C:::'7(2),
7(16),8,9(1), 33.]
trade slander. Trade defamation that is spoken but not
recorded. See trade defamation under DEFAMATION.
Cf. trade libel under LIBEL
slanderer, n. (Be) One who commits slander.
slander ofgoods. See DISPARAGEMENT.
slander of title. (18c) A false statement, made orally or
in writing, that casts doubt on another person's owner
ship ofproperty. Also termed jactitation oftitle. See
DISPARAGEMENT. [Cases: Libel and Slander <):;: 132.]
slander per quod. See SLANDER.
slander per se. See SLANDER.
SLAPP (slap). abbr. A strategic lawsuit against public
participation that is, a suit brought by a developer,
corporate executive, or elected official to stifle those
1515
who protest against some type ofhigh-dollar initiative
or who take an adverse position on a public-interest
issue (often involving the environment). Also termed
SLAPP suit. [Cases: Pleading~3S8, 360.]
slate. A list of candidates, esp. for political office or a
corporation's board of directors, that usu. includes as
many candidates for election as there are representa
tives being elected. [Cases: Corporations <;~:)283(2).]
slave. Roman law. See SERVUS (1).
slavery. 1. A situation in which one person has absolute
power over the life, fortune, and liberty of another. 2.
The practice of keeping individuals in such a state of
bondage or servitude. -Slavery was outlawed by the
13th Amendment to the U.S. Constitution. [Cases:
Constitutional Law 101; Slaves
"Slavery was a big problem for the Constitution makers.
Those who profited by it insisted on protecting it; those
who loathed it dreaded even more the prospect that to
Insist on abolition would mean that the Constitution would
die aborning. So the Framers reached a compromise, of
sorts. The words 'slave' and 'slavery' would never be men
tioned, but the Constitution would safeguard the 'peculiar
institution' from the abolitionists." Jethro K. lieberman,
The Evolving ConstitutIOn 493 (1992).
slavery, badge of. See BADGE OF SLAVERY.
slay, vb. To kill (a person), esp. in battIe.
slayer rule. (1986) The doctrine that neither a person
who kills another nor the killer's heirs can share in the
decedent's estate. -Also termed slayer's rule.
slayer statute. Slang. A statute that prohibits a person's
killer from taking any part of the decedent's estate
through will or intestacy. -lhe Uniform Probate Code
and nearly all jurisdictions have a slayerstatute provi
sion. [Cases: Descent and Distribution (;:::051; Wills
~711.]
Sl/C. See standby letter of credit under LETTER OF
CREDIT.
SLC. abbr. SPECIAL LITIGATION COMMITTEE.
sleeper. A security that has strong market potential but
is underpriced and lacks investor interest.
sleeping on rights. See LACHES (1).
sleeping partner. See secret partner under PARTNER.
sleepwalking defense. See AUTOMATISM.
slidiug scale. A pricing method in which prices are
determined by a person's ability to pay.
slight care. See CARE.
slight diligence. See DILIGENCE.
slight evidence. See EVIDENCE.
slight-evidence rule. (1936) 1. The doctrine that if
evidence establishes the existence of a conspiracy
between at least two other people, the prosecution need
only offer slight evidence of a defendant's knowing
participation or intentional involvement in the con
spiracy to secure a conviction . This rule was first
announced in Tomplain v. United States, 42 F.2d 202,
203 (5th Cir. 1930). In the decades after Tomplain, other small-business concern
circuits adopted the rule, but not until the 1970s did
the rule become Widespread. Since then, the rule has
been widely criticized and, in most circuits, abolished.
See, e.g., United States v. Durrive, 902 F.2d 1379, 1380
n.* (7th Cir. 1990). But its vitality remains undimin
ished in some jurisdictions. [Cases: Conspiracy
47.] 2. The doctrine that only slight evidence ofa defen
dant's participation in a conspiracy need be offered in
order to admit a coconspirator's out-of-court statement
under the coconspirator exception to the hearsay rule.
See Fed. R. Evid. 801(d)(2)(E). [Cases: Criminal Law
C-""2427.]
slight negligence. See :"IEGLIGENCE.
slip-and-fall case. (1952) 1. A lawsuit brought for injuries
sustained in slipping and falling, usu. on the defen
dant's property. [Cases: Negligence 1095, 1104.] 2.
Loosely, any minor case in tort.
slip decision. See slip opinion under OPINION (1).
slip law. (1922) An individual pamphlet in which a single
enactment is printed immediately after its passage but
before its inclusion in the general laws (such as the
session laws or the u.s. Statutes at Large). Also
termed slip-law print.
slip opinion. See OPINION (1).
slippery-slope principle. See WEDGE PRINCIPLE.
slipsheet. See slip opinion under OPINION (1).
slot charter. See CHARTER (8).
slough. 1. (sloo) An arm of a river, separate from the
main channel. 2. (slow) A bog; a place filled with deep
mud.
slowdown. An organized effort by workers to decrease
production to pressure the employer to take some
desired action.
slowdown strike. See STRIKE (1).
SLSDC. abbr. SAINT LAWRENCE SEAWAY DEVELOPME:"IT
CORPORATION.
slump, n. A temporary downturn in the economy and
particularly in the stock market, characterized by
falling market prices.
slush fund. Money that is set aside for undesignated
purposes, often corrupt ones, and that is not subject
to financial procedures designed to ensure account
ability.
SM. abbr. SERVICEMARK.
Small Business Administration. A federal agency that
helps small businesses by assuring them a fair share
of government contracts, guaranteeing their loans or
lending them money directly, and providing disaster
relief. -The agency was established by the Small
Business Act of 1953. -Abbr. SBA. [Cases: United
States (~S3(8).]
small-busiuess concern. A business qualifying for an
exemption from freight undercharges because it |
(8).]
small-busiuess concern. A business qualifying for an
exemption from freight undercharges because it is inde
pendently owned and operated and is not dominant
in its field of operation, with limited numbers of
1516 small-business corporation
employees and business volume. 15 USCA 632.
Often shortened to small business. [Cases: Carriers
(;:::::> 189; Commerce
small-business corporation. See CORPORATION.
Small Business Investment Act. A federal law, originally
enacted in 1958, under which investment companies
may be formed and licensed to supply long-term equity
capital to small businesses . The statute is implemented
by the Small Business Administration. 15 USCA 661
et seq. [Cases: United States C=-;;53(8).]
small-business investment company. A corporation
created under state law to provide long-term eqUity
capital to small businesses, as provided under the Small
Business Investment Act and regulated by the Small
Business Administration. 15 USCA 661 et seq. -
Abbr. SBIC. [Cases: Banks and Banking (;:::::>310; United
States (;::;c 53(8).J
small claim. A claim for damages at or below a speci
fied monetary amount. See small-claims court under
COURT. [Cases: Courts
small-claims court. See COURT.
small-debts court. See small-claims court under
COURT.
small entity. Patents. An independent inventor, a non
profit organization, or a company with 500 or fewer
employees . A small entity is usu. charged a lower fee
for patent applications and related expenses as long as
the patent rights are not aSSigned or licensed to a large
entity (a for-profit organization with more than 500
employees). 37 CFR 1.27. [Cases: Patents (;::;c103.]
small-estate probate. See PROBATE.
small invention. See UTILITY MODEL.
small-loan act. A state law fixing the maximum legal
interest rate and other terms on small, shorHerm loans
by banks and finance companies. [Cases: Banks and
Banking (;:::::> 181; Consumer Credit Usury
42.]
small-loan company. See consumer finance company
under FINANCE COMPANY.
smart card. See STORED-VALUE CARD.
smart money. 1. Funds held by sophisticated, usu.large
investors who are considered capable of minimizing
risks and maximizing profits <the smart money has
now left this market>. 2. See punitive damages under
DAMAGES <although the jury awarded only $7,000 in
actual damages, it also awarded $500,000 in smart
money>.
smash-and-grab. Slang. The act of breaking a window
or other glass barrier in order to seize goods beyond
it before fleeing . In a smash-and-grab, the criminal
usu. breaks a shop window or a glass display case with
a handheld tool and seizes whatever merchandise is
nearest. Cf. RAM RAID.
5MBS. abbr. See stripped mortgage-backed security under
SECURITY. Smith Act. A 1948 federal antisedition law that crimi
nalizes advocating the forcible or violent overthrow of
the government. 18 USCA 2385. [Cases: Insurrection
and Sedition
'The Smith Act is aimed at the advocacy and teaching of
concrete action for the forcible overthrow of the govern
ment, and not at advocacy of principles divorced from
action. The essential distinction is that those to whom the
advocacy is addressed must be urged to do something,
now or in the future, rather than merely to believe in some
thing." 70 Am.Jur. 2d Sedition, Etc. 63, at 59 (1987).
Smithsonian Institution. An independent trust of the
United States responsible for conducting scientific and
scholarly research; publishing its results; maintaining
over 140 million artifacts, works ofart, and scientific
specimens for study, display, and circulation through
out the nation; and engaging in educational program
ming and international cooperative research . It was
created in 1846 to give effect to the terms ofthe will of
a British scientist, James Smithson, who left his entire
estate to the United States.
smoking gun. (1974) A piece ofphysical or documentary
evidence that conclusively impeaches an adversary on
an outcome-determinative issue or destroys the adver
sary's credibility.
Smoot-Hawley Tariff Act. Hist. A 1930 protectionist
statute that raised tariff rates on most articles imported
into the U.S., and provoked U.S. trading partners to
institute comparable tariff increases . This act is often
cited as a factor in precipitating and spreading the Great
Depression. The Act was named for the legislators who
sponsored it, Senator Reed Smoot of Utah and Repre
sentative Willis C. Hawley ofOregon. It is sometimes
called the Grundy Tarifffor Joseph Grundy, who was
president ofthe Pennsylvania Manufacturers Associa
tion and the chieflobbyist supporting the Act. -Also
termed Tariff Act of 1930.
smuggling, n. (17c) The crime of importing or exporting
illegal articles or articles on which duties have not been
paid. See CONTRABAND. Cf. PEOPLE-SMUGGLING; TRAF
FICKING. [Cases: Customs Duties 120.1,125.]
smuggle, vb.
alimentary-canal smuggling. Smuggling carried out
by swallowing packets, usu. balloons, filled with con
traband, which stays in the smuggler's stomach or
intestines during the crossing ofa border.
smurf, n. Slang. 1. A person who participates in a money
laundering operation by making transactions ofless
than $10,000 (the amount that triggers federal report
ing requirements) at each ofmany banks . The name
derives from a cartoon character of the 1980s. 2. See
CURRENCY-TRANSACTION REPORT.
sneak-and-peek search warrant. See covert-entry search
warrant under SEARCH WARRANT.
SNS. abbr. STRATEGIC NATIONAL STOCKPILE.
SO. abbr. SOUTHERN REPORTER.
sober, adj. (14c) 1. (Of a person) not under the influence
of drugs or alcohol. 2. (Of a person) regularly abstinent
1517
or moderate in the use of intoxicating liquors. [Cases:
Chemical Dependents <P1.]3. (Of a situation, person,
etc.) serious; grave. 4. (Of facts, arguments, etc.) basic;
unexaggerated. 5. (Of a person) rational; having self
control.
sober house. See SOBER-LIVING RESIDENCE.
sober-living residence. A transitional form of group
housing for people recovering from alcoholism or
drug abuse. -The residents typically receive counsel
ing about how to function without mind-altering sub
stances. Sometimes shortened to sober living. -Also
termed sober-living hOUSing; sober house.
sobrante. Surplus. -This term is sometimes found in
old land grants in states that were formerly governed
by Mexico.
sobrestadia. See ESTADIA.
sobriety checkpoint. (1984) A part of a roadway at which
police officers maintain a roadblock to stop motorists
and ascertain whether the drivers are intoxicated.
[Cases: Automobiles (::::';' 349(9).]
sobriety test. (1931) A method of determining whether
a person is intoxicated. -Common sobriety tests are
coordination tests and the use of mechanical devices to
measure the blood alcohol content of a person's breath
sample. See BREATHALYZER; HORIZONTAL-GAZE NYS
TAGMUS TEST. [Cases: Automobiles C=>411; Criminal
Law <P388.2.]
field sobriety test. (1956) A motor-skills test admin
istered by a peace officer during a stop to determine
whether a suspect has been driving while intoxi
cated. Ihe test usu. involves checking the suspect's
speaking ability or coordination (as by reciting the
alphabet or walking in a straight line). Abbr. FST.
[Cases: Automobiles (;:::::>411.]
/ sobrini (s<'J-brI-nI), n. pl. [Latin] Roman law. Children of
first cousins; second cousins.
soc (sohk or sok), n. [Law Latin] Hist. 1. A liberty ofexer
cising private jurisdiction; specif., the privilege granted
to a seigniory of holding a tenant's court. 2. The terri
tory subject to such private jurisdiction. Also spelled
soke; soca; sac.
fold soc. See FALDAGE (1).
soca (soh-k<l or sok-<l), n. See SOC.
socage (sok-ij). Hist. A type of lay tenure in which a
tenant held lands in exchange for prOViding the lord
husbandry-related (rather than military) service. -
Socage, the great residuary tenure, was any free tenure
that did not fall within the definition ofknight-service,
serjeanty, or frankalmoin. Cf. KNIGHT-SERVICE; VIL
LEINAGE.
"If they [the peasant's duties] were fixed for instance,
helping the lord with sowing or reaping at specified
times the tenure was usually called socage. This was
originally the tenure of socmen; but it became ... a generic
term for all free services other than knightservice, ser
jeanty, or spiritual service." j.H. Baker, An Introduction to
English Legal Historv 260 (3d ed. 1990). socida
free socage. Socage in which the services were both
certain and honorable. -By the statute 12 Car. 2, ch.
24 (1660), all the tenures by knight-service were, with
minor exceptions, converted into free socage. -Also
termed free and common socage; liberum socagium.
villein socage (vil-<ln). Socage in which the services,
though certain, were of a baser nature than those
provided under free socage.
socager (sok-ij-dr). A tenant by socage; SOCMAN.
socer (soh-s<lr), n. [Latin] Roman law. A father-in-law.
social contract. (1837) The express or implied agreement
between citizens and their government by which indi
viduals agree to surrender certain freedoms in exchange
for mutual protection; an agreement forming the foun
dation of a political society. _ The term is primarily
associated with political philosophers, such as 1homas
Hobbes, John Locke, and esp. Jean Jacques Rousseau,
though it can be traced back to the Greek Sophists.
social cost. See COST (1).
social guest. See GUEST.
social harm. See HARM.
sodal insurance. See INSURANCE.
social justice. See rUSTICE (1).
social restriction. 1. The curtailment ofindividuals' lib
erties ostenSibly for the general benefit. 2. A govern
mental measure that has this effect.
Sodal Security Act. A federal law, originally enacted
in 1935 in response to the Great Depression, creating
a system of benefits, including old-age and survivors'
benefits, and establishing the Social Security Admin
istration. 42 USCA 401-433. [Cases: Social Security
and Public Welfare 121.]
Social Security Administration. A federal agency in
the executive branch responsible for administering
the nation's retirement program and its survivors
and disability-insurance program . The agency was
established under the Social Security Act of 1935 and
became independent in 1995. -Abbr. SSA. [Cases:
Social Security and Public Welfare
Social Security Disability Insurance. A benefit for
adults with disabilities, paid by the Social Security
Administration to wage-earners who have accumulated
enough quarters of coverage and then become disabled .
Benefits are also available to disabled adult children
and to disabled widows and widowers of qualified
wage-earners. Abbr. ssm. [Cases: Social Security
and Public Welfare (;:::::> ]40.5.]
social-service state. See STATE.
social study. See HOME-STUDY REPORT.
sodal value. See VALUE (1).
socida (sd-sI-dd), n. [Latin] Civil law. A contract of
bailment bv which the bailee assumes the risk of loss;
specif., a b~ilment by which a person delivers animals
to another for a fee, on the condition that ifany animals
perish, the bailee will be liable for the loss.
societas 1518
societas (S<l-SI-<l-tas), n. [Latin] Roman law. A partner
ship between two or more people agreeing to share
profits and losses; a partnership contract.
"Societas in its widest acceptation denotes two or more
persons who unite or combine for the prosecution of a
common object; in its more restricted sense it denotes a
mercantile partnership ... , the individual members being
termed Socii." William Ramsay, A Manual ofRoman Antiqui
ties 316 (Rodolfo Lanciani ed., 15th ed. 1894).
societas leonina (S<l-SI-,Has lee-J-nI-n<l). [Latin "part
nership with a lion"] Roman law. An illegal partner
ship in which a partner shares in only the losses, not
the profits; a partnership in which one person takes the
lion's share. -Also termed leonina societas.
"But an arrangement by which one party should have all
the gain was not recognized as binding; it was considered
as contrary to the nature and purposes of the societas,
the aim of which was gain for all the parties concerned.
Such an arrangement the lawyers called societas leonina,
a partnership like that |
gain for all the parties concerned.
Such an arrangement the lawyers called societas leonina,
a partnership like that which the lion in the fable imposed
upon the cow, the sheep, and the she-goat, his associates
in the chase." James Hadley, Introduction to Roman Law
231-32 (1881).
societas navalis (SJ-SI-J-tas nJ-vay-lis), n. [Latin] Hist.
A naval partnership; an assembly ofvessels for mutual
protection. Also termed admiralitas.
societas universorum bonorum (S<l-Sl-<l-tas yoo-ni-vJr
sor-Jm b<l-nor-<lm), n. Hist. An entire partnership,
including all the individual partners' property.
societe (soh-see-ay-tay), n. [French] French law. A part
nership.
societe anonyme (soh-see-ay-tay an-aw-neem), n.
[French] French law. An incorporated joint-stock
company.
societe d'acquets (soh-see-ay-tay dah-kay), n. [French]
French law. A written agreement between husband
and wife designating community property to be only
that property acquired during marriage.
societe en commandite (soh-see-ay-tay awn koh-mawn
deet), n. [French] French law. A limited partnership.
societe en nom collectif(soh-see-ay-tay aWrl nawn koh
lek-teef), n. [Prench] French law. A partnership in
which all members are jointly and severally liable for
the partnership debts; an ordinary partnership.
societe en participation (soh-see-ay-tay awn pahr-tee
see-pah-syawn), rI. French law. A joint venture.
societepar actions (soh-see-ay-tay pahr ak-syawn), n.
French law. A joint-stock company.
society. (16c) 1. A community of people, as of a state,
nation, or locality, with common cultures, traditions,
and interests.
civil society. 1he political body ofa state or nation; the
body politic.
2. An association or company ofpersons (mm. unin
corporated) united by mutual consent, to deliberate,
determine, and act jOintly for a common purpose;
ORGANIZATION (1). [Cases: Associations C:;:: LJ 3. The
general love, affection, and companionship that family
members share with one another. sociological jurisprUdence. See JURISPRUDENCE.
sociology oflaw. See SOciological jurisprudence under
JURISPRUDENCE.
sociopath, n. See PSYCHOPATH. -sociopathy, n.
sociopathic, adj.
socius (soh-shee-<ls), n. [Latin] Roman law. 1. A partner.
2. An accomplice; an accessory. 3. A political ally. PI.
socii (soh-shee-I).
socius criminis (soh-shee-Js krim-J-nis). An associate
in crime; an accomplice.
sockman. See SOCMAN.
socman (sok-mJn). Hist. A person who holds land by
socage tenure. Also spelled sokeman; sackman.
Also termed socager; gainor. See SOCAGE.
socmanry (sok-mJn-ree). Hist. 1. Free tenure by socage.
2. Land and tenements held only by simple services;
land enfranchised by the sovereign from ancient
demesne. The tenants were socmen. 3. The state of
being a socman.
socna (sok-nJ). Hist. A privilege; a liberty; a franchise.
Socratic method. (ISc) A technique ofphilosophical dis
cussion and oflaw-school instruction -by which
the questioner (a law professor) questions one or more
followers (the law students), building on each answer
with another question, esp. an analogy incorporating
the answer. This method takes its name from the
Greek philosopher Socrates, who lived in Athens from
about 469-399 B.C. His method is a traditional one in
law schools, primarily because it forces law students to
think through issues rationally and deductively - a
skill required in the practice oflaw. Most law professors
who employ this method call on students randomly, an
approach designed to teach students to think quickly,
without stage fright. Also termed question-and
answer method. See QUESTTON-AND-ANSWER (3). Cf.
CASEBOOK METHOD; HORNBOOK METHOD.
"[Socrates] himself did not profess to be capable of
teaching anything, except consciousness of ignorance ....
He called his method of discussion (the Socratic method)
obstetrics . .. because it was an art of inducing his inter
locutors to develop their own ideas under a catechetical
system." 5 The Century Dictionary and Cvclopedla 5746
(rev. ed. 1914).
socrus (sok-rJs), rI. [Latin] Roman law. A mother-in
law.
SODDI defense (sahd-ee). Slang. The some-other-dude
did-it defense; a claim that somebody else committed a
crime, usu. made by a criminal defendant who cannot
identify the third party.
sodomy (sod-<l-mee), n. (l3c) 1. Oral or anal copulation
between humans, esp. those ofthe same sex. [Cases:
Sodomy I.] 2. Oral or anal copulation between
a human and an animal; bestiality. Also termed
buggery; crime against nature; abominable and detest
able crime against nature; unnatural offense; unspeak
able crime; (archaically) sodomitry; (in Latin) crimen
imlOminatum. Cf. PEDERASTY. sodomize, vb. sod
omitic, adj. -sodomist, sodomite, n.
1519
"Sodomitry is a carnal copulation against nature; to wit,
of man or woman in the same sex, or of either of them
with beasts." Sir Henry Finch, Law, or a Discourse Thereof
219 (1759).
"Sodomy was not a crime under the common law of England
but was an ecclesiastical offense only. It was made a felony
by an English statute so early that it is a common law felony
in this country, and statutes expressly making it a felony
were widely adopted. 'Sodomy' is a generic term including
both 'bestiality' and 'buggery.'" Rollin M. Perkins & Ronald
N, Boyce, Criminal Law465 (3d ed. 1982),
aggravated sodomy. (1965) Criminal sodomy that
involves force or results in serious bodily injury to
the victim in addition to mental injury and emotional
distress. Some laws provide that sodomy involving
a minor is automatically aggravated sodomy. [Cases:
SodomyC=L]
SOF. abbr. STATUTE OF FRAUDS.
SOFA. abbr. See STATEMENT OF FINANCIAL AFFAIRS.
soft currency. See CURRENCY.
soft dollars. 1. Securities. The credits that brokers give
their clients in return for the clients' stock-trading
business. 2. The portion of an equity investment that
is tax-deductible in the first year. Cf. HARD DOLLARS.
soft goods. See GOODS.
soft law. 1. Collectively, rules that are neither strictly
binding nor completely lacking in legal significance.
2. Int'I law. Guidelines, policy declarations, or codes
of conduct that set standards of conduct but are not
legally binding.
soft market. See MARKET.
soft positivism. See INCORPORATIONISM.
soft sell. A low-key sales practice characterized by sin
cerity and professionalism. Cf. HARD SELL.
software beta-test agreement. See BETA-TEST AGREE
MENT.
software-based invention. See INVENTION.
Software Directive. See DIRECTIVE ON THE LEGAL PRO
TECTION OF COMPUTER PROGRAMS.
Software Patent Institute. A Kansas-based nonprofit
institute that collects and organizes nonpatented
prior-art software references in a database for patent
researchers.
so help me God. The final words of the common oath.
The phrase is a translation, with a change to first
person, of the Latin phrase ita te Deus adjuvet "so help
you God." See ITA TE DEUS ADJUVET. [Cases: Oath
5; Witnesses C~227.]
soil bank. A federal agricultural program in which
farmers are paid to not grow crops or to grow noncom
mercial vegetation, to preserve the quality of the soil
and stabilize commodity prices by avoiding surpluses.
See LAND BANK (2). [Cases; AgricultureC=3.2.]
Soil Conservation Service. See NATURAL RESOURCES
CONSERVATION SERVICE.
soit (swah). [Law French] Be; let it be. This term was
used in English-law phrases, esp. to indicate the will sole-actor doctrine
ofthe sovereign in a formal communication with Par
liament.
soit baile aux commons (swah bayl oh kom-;:mz). [Law
French] Let it be delivered to the commons . This is an
indorsement on a bill sent to the House of Commons.
soit baile aux seigneurs (swah bayl oh sen-Y<lrz). [Law
French] Let it be delivered to the lords. This is an
indorsement on a bill sent to the House of Lords.
soit droitfait al partie (swah droyt [or drwah] fayt [or
fay] ahl pahr-tee). [Law French] Rist. Let right be done
to the party. This phrase is written on a petition of
right and subscribed by the Crown.
soitfait comme if est desire (swah fay[t] kawm eel ay
day-zeer-ay). [Law French] Let it be as it is desired .
This is the phrase indicating royal assent to a private
act of Parliament.
sojourn (soh-jdrn), n. A temporary stay by someone
who is not just passing through a place but is also not a
permanent resident <she set up a three-month sojourn
in France>. -sojourn (soh-j<}rn or soh-j;,rn), vb.
sojourner (soh-j;>r-n;>r or soh-j;,r-n<}r), n.
soke. See soc.
sokeman. See SOCMAN.
soke-reeve (sohk-reev). Rist. The lord's rent-collector
in the soc.
solar (soh-Iahr). Rist. Spanish & Mexican law. A resi
dentiallot; a small, privately owned tract of land.
This term is sometimes found (esp. in the plural form
solares) in old land grants in states that were formerly
Spanish provinces or governed by Mexico.
solar day. See DAY.
solar easement. See EASEMENT.
solarium (s;>-lair-ee-;}m), n. [Latin fro solum "soil"]
Roman law. Rent paid for building on public land;
ground rent.
solar month. See MONTH (4).
sola superviventia (soh-I;) soo-p<}r-vI-ven-shee-<}). [Law
Latin] Rist. By mere survivance.
solatium (sd-Iay-shee-dm), n. (Latin "solace"] Scots law.
Compensation; esp., damages allowed for hurt feelings
or grief, as distingUished from damages for physical
injury .
Soldiers' and Sailors' Civil Relief Act. A federal law,
originally enacted in 1940, protecting the civil rights of
persons in military service, as by modifying their civil
liability, placing limits on interest rates charged against
their obligations, and prescribing specific procedures
for claims made against them. 50 USCA app. 501 et
seq. [Cases: Armed Services C;::J34.1.]
soldier's and sailor's will. See soldier's will under WILL.
soldier's will. See WILL.
sold note. 1. See NOTE (1). 2. See CONFIRMATION SLIP.
sole-actor doctrine. (1923) Agency. The rule charging a
principal with knowledge of the agent's actions, even
1520 sole and separate use
if the agent acted fraudulently. [Cases: Principal and
Agent C--=> 177(1), 180-182.]
sole and separate use. See entire use under USE (4).
sole and unconditional owner. See OWNER.
sole cause. See CAUSE (1).
sole corporation. See CORPORATION.
sole custody. See CUSTODY (2).
sole discretion. See DISCRETION (2).
solemn admission. Seejudicial admission under ADMIS
SION (1).
solemnitas attachiamentorum (s;}-lem-ni-tas ;}-tach
ee-;J-men-tor-dm). lLaw Latin] Hist. The formality
required in issuing attachments ofproperty.
solemnity (s;J-lem-n;J-tee). (I4c) 1. A formality (such as a
ceremony) required by law to validate an agreement or
action <solemnity of marriage>. 2. The state of serious
ness or solemn respectfulness or observance <solem
nity of contract>.
solemnity of contract. (1812) The concept that two
people may enter into any contract they wish and that
the resulting contract is enforceable if formalities are
observed and no defenses exist. [Cases: Contracts
1.J
solemnization. The performance ofa formal ceremony
(such as a marriage ceremony) before witnesses, as
distinguished from a clandestine ceremony. [Cases:
Marriage ~26.]
solemnize (sol-am-lllz), vb. (14c) To enter into (a
marriage, contract, etc.) by a formal act, usu. before
witnesses. [Cases: MarriageC-'26.]
solemn oath. See corporal oath under OATH.
solemn occasion. In some states, the serious and unusual
circum |
solemn oath. See corporal oath under OATH.
solemn occasion. In some states, the serious and unusual
circumstance in which the supreme court is constitu
tionally permitted to render advisory opinions to the
remaining branches of government, as when the leg
islature doubts the legality of proposed legislation and
a determination must be made to allow the legislature
to exercise its functions. _ Some factors that have been
considered in determining whether a solemn occasion
exists include whether an important question oftaw is
presented, whether the question is urgent, whether the
matter is ripe for an opinion, and whether the court has
enough time to consider the question. [Cases: Consti
tutional Law~2600-2609; Courts ~208.]
solemn war. See WAR.
sole practitioner. (1946) A lawyer who practices law
without any partners or associates. -Often shortened
to solo. -Also termed solo practitioner.
sole proprietorship. (1860) 1. A business in which one
person owns all the assets, owes all the liabilities, and
operates in his or her personal capacity. [Cases: Corpo
rations 1.] 2. Ownership of such a business. Also
termed individual proprietorship.
sole selling agency. See exclusive agency under AGENCY
(1). sole-source rule. In a false-advertising action at common
law, the principle that a plaintiff may not recover unless
it can demonstrate that it has a monopoly in the sale
of goods possessing the advertised trait, because only
then is it clear that the plaintiff would be harmed by the
defendant's advertiSing.
sole use. See entire use under USE (4).
solicitation, n. (16c) 1. The act or an instance ofrequest
ing or seeking to obtain something; a request or
petition <a solicitation for volunteers to handle at least
one pro bono case per year>. 2. The criminal offense of
urging, advising, commanding, or otherwise inciting
another to commit a crime <convicted of solicitation of
murder>. -Solicitation is an inchoate offense distinct
from the solicited crime. Under the Model Penal
Code, a defendant is guilty of solicitation even if the
command or urging was not actually communicated
to the solicited person, as long as it was designed to be
communicated. Model Penal Code 5.02(2). Also
termed criminal solicitation; incitement. Cf. ATTEMPT
(2). [Cases: Criminal Law HomicideC=S62.]
3. An offer to payor accept money in exchange for
sex <the prostitute was charged with solicitation>.
Also termed soliciting. Cf. PATRONIZING A PROSTITUTE.
[Cases: Prostitution C:) 16.] 4. An attempt or effort to
gain business <the attorney's solicitations took the
form of radio and television ads>. _ The Model Rules
of Professional Conduct place certain prohibitions on
lawyers' direct solicitation of potential clients. [Cases:
Attorney and Client (;:-:;c 32(9).] S. Securities. A request
for a proxy; a request to execute, not execute, or revoke
a proxy; the furnishing ofa form ofproxy; or any other
communication to security holders under circum
stances reasonably calculated to result in the procure
ment, withholding, or revocation of a proxy. [Cases:
Securities Regulation <:-'-::::::49.10-49.16.] solicit, vb.
solicitation for bids. See INVITATION TO NEGOTIATE.
solicitation of a bribe. The crime of asking or enticing
another to commit bribery. 18 USCA 201. See BRIBERY.
[Cases: Bribery~1.l
solicitation of chastity. Hist. The act of trying to
persuade another person to engage in unlawful sexual
intercourse.
solicitee. One who is solicited. See SOLICIT ATION.
soliciting, n. See SOLICITATION (3).
soliciting agent. See AGENT (2).
solicitor. (ISc) 1. A person who seeks business or con
tributions from others; an advertiser or promoter. 2.
A person who conducts matters on another's behalf;
an agent or representative. 3. The chief law officer of a
governmental body or a municipality. [Cases: Munici
pal Corporations C'-::o 169.] 4. In the United Kingdom,
a lawyer who consults with clients and prepares legal
documents but is not generally heard in High Court or
(in Scotland) Court of Session unless specially licensed.
Cf. BARRISTER. 5. See speCial agent under INSURANCE
AGENT. 6. A prosecutor (in some jurisdictions, such as
1521
South Carolina). 7. See special agent under INSURANCE
AGENT.
solicitor general. (usu. cap.) (17c) The second-highest
ranking legal officer in a government (after the attorney
general); esp., the chief courtroom lawyer for the execu
tive branch. -Abbr. SG. PI. solicitors general.
"By [federaillaw, only the Solicitor General or his designee
can conduct and argue before the Supreme Court cases
'in which the United States is interested.' Thus, if a trial
court appoints a special, independent prosecutor in order
to prosecute a criminal contempt of court, that court
appointed special prosecutor cannot represent the United
States in seeking Supreme Court review of any lower court
decision unless the Solicitor General authorizes the filing of
such a petition .... Although the Solicitor General serves
at the pleasure of the President, by tradition the Solicitor
General also acts with independence. Thus, if the Solicitor
General does not believe in the legal validity of the argu
ments that the government wants presented, he will refuse
to sign the brief. In close cases the Solicitor General will
sign the brief but tag on a disclaimer that has become
known as 'tying a tin can.' The disclaimer would state,
for example. The foregoing is presented as the position
of the Internal Revenue Service.' The justices would then
know that the Solicitor General, although not withhold
ing a legal argument, was not personally sponsoring or
adopting the particular legal position." Ronald D. Rotunda
& John E. Nowak, Treatise on Constitutional Law 2.2, at
86-88 (3d ed. 1999).
solicitor's hypothec. See HYPOTHEC.
solidarity. (1875) The state ofbeing jOintly and severally
liable (as for a debt). See solidary obligation under OBLI
GATION. [Cases: Action <8=> 14.] -solidarily, adv.
solidary (sol-a-der-ee), adj. (Ofa liability or obligation)
joint and several. See JOINT AND SEVERAL. [Cases:
Action C:::> 14.]
"It is a single debt of 100 owing by each of them, in such
fashion that each of them may be compelled to pay the
whole of it, but that when it is once paid by either of them,
both are discharged from it. Obligations of this description
may be called solidary, Since in the language of Roman
law, each of the debtors is bound in solidum instead of pro
parte; that is to say, for the whole, and not for a proportion
ate part. A solidary obligation, therefore, may be defined
as one in which two or more debtors owe the same thing
to the same creditor." John Salmond, jurisprudence 462-63
(Glanville l. Williams ed., 10th ed. 1947).
solidary liability. See LIABILITY.
solidary obligation. See OBLIGATION.
solidum (sol-a-dam), n. [Latin] Roman law. A whole; an
undivided thing. See SOLIDARY.
solinum (sa-h-n;>m), n. [Law Latin] Hist. 1. Slightly less
than two and a half plowlands. 2. A Single plowland.
solitary confinement. (17c) Separate confinement that
gives a prisoner extremely limited access to other
people; esp., the complete isolation ofa prisoner. [Cases:
Prisons <8=>232.]
sollertia (s;>-l<lr-shee-;. [Latin] Hist. Shrewdness;
resourcefulness; cleverness.
solo, n. See SOLE PRACTITIONER.
solo animo (soh-Ioh an-a-moh). [Latin] Hist. By mere
intention. solvendo esse
Solomon Amendment. A federal law authorizing the
Secretary of Defense to withhold federal funding
from schools that do not allow military recruiters on
their campuses or deny access equal to that enjoyed by
other types of recruiters . The amendment is named
for Representative Gerald B.H. Solomon ofNew York.
10 USCA 983. [Cases: Colleges and Universities
4,6(5).]
solo practitioner. See SOl.E PRACTITIONER.
solum italicum (soh-l;>m I-tal-a-bm). [Latin "Italian
land"] Roman law. Land in Italy (an extension ofthe old
ager Romanus) needing, for full ownership to pass, to
be transferred by formal methods, such as mancipatio
or cession in jure. Cf. solum provinciale.
solum provinciale (soh-bm pr<,>-vin-shee-ay-Iee).
[Latin "provincial land"] Roman law. Provincial land
ultimately held by the Emperor or state, with private
holders having only, in theory, a possessory title without
the right to transfer the property by formal methods, as
distinguished from solum italicum . Justinian abol
ished all distinctions between the two, allowing all land
to be conveyed by traditio. Cf. SOl.UM ITALICUM.
"Ownership of provincial land. The dominium of this was
in Caesar or the populus according as it was an imperial
or a senatorial province .... The holders were practically
owners, but as they were not domini formal methods of
transfer were not applicable. The holdings were however
transferable informally .... The case disappeared when
Justinian abolished the distinction between Italic and
provincial land. Not all land in the provinces was solum
provinciale: many provincial communities were given ius
italicum, the chief result being that the land was in the
dominium of the holder and not of the State, so that it could
be transferred and claimed at law by civil law methods."
WW. Buckland, A TextBook of Roman Law from Augustus
to justinian 190 (Peter Stein ed., 3d ed. 1963).
solus cum sola in loco suspecto (soh-IdS k;>m soh-I;> in
loh-koh sa-spek-toh). [Law Latin] Hist. A man alone
with a woman in a suspicious place.
solutio (s<,>-loo-shee-oh), n. [Latin "payment"] Roman
law. Performance ofan obligation; satisfaction. PI. solu
tiones (s;>-loo-shee-oh-neez).
solutio indebiti (sil-Ioo-shee-oh in-deb-il-tI). [Latin
"payment ofwhat is not owing"] Roman law. Payment
of a nonexistent debt. Ifthe payment was made in
error, the recipient had a duty to give back the money.
solutio obligationis (sil-Ioo-shee-oh ob-li-gay-shee-oh
nis). Roman law. The unfastening of a legal bond, so
that a party previously bound need not perform any
longer. Cf. VINCULUM JURIS.
solutus (s;>-loo-tds), adj. [Latin fro solvere "to loose"] 1.
Roman law. Set free; released from obligation or con
finement. 2. Scots law. Purged, esp. in reference to
counsel.
solvabilite (sawl-vah-beel-ee-tay), n. [French] French law.
Solvency.
solvency, n. (18c) The ability to pay debts as they come
due. Cf. INSOl.VENCY. solvent, ad).
solvendo esse (sol-ven-doh es-ee). [Latin] Hist. To be
solvent; to be able to pay an obligation.
1522 solvendum in futuro
solvendum infuturo (sol-ven-d.nu in f[y]oo-t[yJoor-oh).
[Latin "to be paid in the future"] Hist. (Of a debt) due
now but payable in the future.
solvent debtor. See DEBTOR.
solvere (sol-va-ree), vb. [Latin "to unbind"] Roman law.
To pay (a debt); to release (a person) from an obliga
tion.
solvere poenas (sal-veer-ee pee-nas). [Latin] Hist. To pay
the penalty.
solvit (sol-vit). [Latin] He paid; paid.
solvit ad diem (sol-vit ad dI-dm). [Law Latin "he paid on
the day"] Hist. In a debt action, a plea that the defen
dant paid the debt on the due date.
solvit ante diem (sol-vit an-tee dI-am). [Law Latin "he
paid before the day"] Hist. In a debt action, a plea that
the defendant paid the money before the due date.
solvit post diem (sol-vit pohst dI-dm). [Law Latin "he
paid after the day"] Hist. In a debt action on a bond, a
plea that the defendant paid the debt after the due date
but before commencement of the lawsuit.
somnambulism (sahm-nam-bYd-liz-am). (I8c) Sleep
walking. _ Generally, a person will not be held crimi
nally responsible for an act performed while in this
state. See AUTOMATISM.
somnolentia (sahm-nd-Ien-shee-a). (1879) 1. The state of
drowsiness. 2. A condition of incomplete sleep resem
bling drunkenness, during which part ofthe faculties
are abnormally excited while the others are dormant;
the combined condition ofsleeping and wakefulness
prodUcing a temporary state of involuntary intoxica
tion. -To the extent that it destroys moral agency, som
nolentia may be a |
of involuntary intoxica
tion. -To the extent that it destroys moral agency, som
nolentia may be a defense to a criminal charge.
son. 1. A person's male child, whether natural or adopted;
a male of whom one is the parent. 2. An immediate
male descendant. 3. Slang. Any young male person.
son assault demesne (sohn <J-sawlt di-mayn). [French
"his own assault"] The plea of self-defense in a tort
action, by which the defendant alleges that the plaintiff
originally engaged in an assault and that the defendant
used only the force necessary to repel the plaintiff's
assault and to protect person and property. See SELF
DEFENSE.
son-in-law. The husband ofone's daughter.
Sonny Bono Copyright Term Extension Act. Copyright.
A federal law extending the copyright term by 20 years
for all works published in the U.S. after January 1, 1978,
and settling the copyright term for works created before
1978 as 95 years from the original copyright date.
Before the extension, the copyright term was the life of
the author plus 50 years. Pub. L. 105-298,112 Stat. 2827.
[Cases: Copyrights and Intellectual Property C=>33.]
Son-of-Sam law. (1981) A state statute that prohibits a
convicted criminal from profiting by selling his or her
story rights to a publisher or filmmaker. -State law
usu. authorizes prosecutors to seize royalties from a
convicted criminal and to place the money in an escrow account for the crime victim's benefit. This type oflaw
was first enacted in New York in 1977, in response to
the lucrative book deals that publishers offered David
Berkowitz, the serial killer who called himself"Son of
Sam." In 1992, the U.S. Supreme Court declared New
York's Son-of-Sam law unconstitutional as a content
based speech regulation, prompting many states to
amend their laws in an attempt to avoid constitution
ality problems. Simon & Schuster, Inc. v. New York State
Crime Victims Bd., 502 U.S. 105, 112 S.Ct. 501 (1992).
[Cases: Criminal LawC=J1221.]
sonticus (sahn-ti-kds), n. [Latin] Roman law. Serious;
more than trivial. -The term was used in the Twelve
Tables to refer to a serious illness (morbus sonticus)
that gave a defendant a valid reason not to appear in
court.
Sony doctrine. See COMMERCIALLY SIGNIFICANT NON
INFRINGING USE.
sophisticated investor. See INVESTOR.
SOTor (sor-or), n. [Latin] Roman law. A sister.
sororicide (sa-ror-d-sId). (17c) 1. The act ofkilling one's
own sister. 2. A person who kills his or her sister. Cf.
FRATRICIDE. sororicidal, adj.
SOTS (sors), n. [Latin] 1. Roman law. A lot; a chance. 2.
Scots law. A partnership's capital. 3. Hist. Principal, as
distinguished from interest. 4. Hist. Something recov
ered in an action, as distinguished from mere costs.
sortitio (sor-tish-ee-oh), n. [Latin fro sortiri "to cast lots"]
Roman law. The drawing of lots, used, for example, in
selecting judges for a criminal trial. Also termed (in
English) sortition; sortilege.
soul scot. See MORTUARY (3).
soul shot. See MORTUARY (3).
sound, adj. (12c) 1. (Of health, mind, etc.) good; whole;
free from disease or disorder. [Cases: Mental Health
C=J3.1.J 2. (Of property) good; marketable. 3. (Of
discretion) exercised equitably under the circum
stances. soundness, n.
sound, vb. (I8c) 1. To be actionable (in) <her claims for
physical injury sound in tort, not in contract>. 2. To be
recoverable (in) <his tort action sounds in damages, not
in equitable relief>.
sound health. Insurance. 1. A policy applicant's good
mental and physical condition; a state of health char
acterized by a lack ofgrave impairment or disease, or
of any ailment that seriously affects the applicant's
health. [Cases: Insurance (,':::J 1758,3003(8).] 2. GOOD
HEALTH.
sound mind. 1. MIND (2). 2. See testamentary capacity
under CAPACITY (3).
Sound Recording Amendment of 1972. A Copyright
Act of 1909 amendment that established copyright pro
tection for sound recordings. [Cases: Copyrights and
Intellectual Property C=> 10.2.]
source, n. The originator or primary agent of an act,
circumstance, or result <she was the source of the
1523
information> <the side business was the source of
income>.
source code. Copyright. The nonmachine language used
by a computer programmer to create a program. _ If
it is not included with the software sol d to the public, I
source code is protected by trade secret laws as well as
copyright and patent laws. Source code may be depos- I
ited with the U.S. Copyright Office but, because ofthe '
need to protect a trade secret, and because a skilled pro- I
grammer could figure out how to duplicate the source
code's functions without necessarily copying it, strate
gic parts may be blacked out. Cf. OBJECT CODE. [Cases:
Copyrights and Intellectual Property~ 10.4.]
source oflaw. (1892) Something (such as a constitution,
treaty, statute, or custom) that provides authority for
legislation and for judicial decisions; a point of origin
for law or legal analysis. -Also termed fons juris.
"The term 'sources of law' is ordinarily used in a much
narrower sense than will be attributed to it here. In the
literature of jurisprudence the problem of 'sources' i
relates to the question: Where does the judge obtain the I
rules by which to decide cases? In this sense, among the
sources of law will be commonly listed: statutes, judicial
precedents, custom, the opinion of experts, morality, and I
equity. In the usual discussions these various sources of
law are analyzed and some attempt is made to state the
conditions under which each can appropriately be drawn
upon in the decision of legal controverSies. Curiously,
when a legislature is enacting law we do not talk about
the 'sources' from which it derives its decision as to what
the law shall be, though an analysis in these terms might
be more enlightening than one directed toward the more
restricted function performed by judges. Our concern
here will be with 'sources' in a much broader sense than
is usual in the literature ofjurisprudence, Our interest is
not so much in sources of laws, as in sources of law. From
whence does the law generally draw not only its content
but its force in men's lives?" Lon L. Fuller, Anatomy of the
Law69 (1968).
"In the context of legal research, the term 'sources of law'
can refer to three different concepts which should be dis
tinguished. One, sources of law can refer to the origins
of legal concepts and ideas ... ' Two, sources of law can
refer to governmental institutions that formulate legal
rules, .. , Three, sources of law can refer to the published
manifestations of the law. The books, computer databases,
microforms, optical disks, and other media that contain
legal information are all sources of law." j. Myronjacobstein
&Roy M. Mersky, Fundamentals ofLegal Research 1-2 (5th
ed. 1990).
South Eastern Reporter. A set ofregionallawbooks, part
ofthe West Group's National Reporter System, contain
ing every published appellate decision from Georgia,
North Carolina, South Carolina, Virginia, and West
Virginia, from 1887 to date. -The first series ran from
1887 to 1939; the second series is the current one.
Abbr. S.E.; S.E.2d.
Southern Common Market. See Mercosur.
Southern Reporter. A set of regionallawbooks, part of
the West Group's National Reporter System, contain
ing every published appellate decision from Alabama,
Florida, Louisiana, and MiSSissippi, from 1887 to date.
The first series ran from 1887 to 1941; the second
series is the current one. -Abbr. So.; So.2d. sovereign state
South Western Reporter. A set of regionallawbooks,
part of the West Group's National Reporter System,
containing every published appellate decision from
Arkansas, Kentucky, Missouri, Tennessee, and Texas,
from 1886 to date. -The first series ran from 1886 to
1928; the second series ran until 1999; the third series
is the current one. Abbr. S.W.; S.W.2d.; SW.3d.
sovereign, adj. (Of a state) characteristic of or endowed
with supreme authority <sovereign nation> <sovereign
immunity>.
sovereign, n. (Be) 1. A person, body, or state vested with
independent and supreme authority. 2. The ruler of an
independent state. -Also spelled sovran. See SOVER
EIGNTY.
sovereign equality. Int'l Jaw. The principle that nations
have the right to enjoy territorial integrity and political
independence, free from intervention by other nations, .
The United Nations "is based on the principle ofthe
sovereign equality ofall its Members." UN Charter art.
2, ~ 1. [Cases: International Law C::;10.45(1).]
sovereign immunity. See IMMUNITY (1).
sovereign people. (17c) The political body consisting of
the collective number ofcitizens and qualified electors
who possess the powers of sovereignty and exercise
them through their chosen representatives.
sovereign political power. See POLITICAL POWER.
sovereign power. (ISc) 1. The power to make and enforce
laws. 2. See sovereign political power under POLITICAL
POWER.
sovereign right. (16c) A unique right possessed by a state
or its agencies that enables it to carry out its official
functions for the public benefit, as distinguished from
certain proprietary rights that it may possess like any
other private person. [Cases: States ~21.]
sovereign state. (17c) 1. A state that possesses an inde
pendent existence, being complete in itself, without
being merely part of a larger whole to whose govern
ment it is subject. 2. A political community whose
members are bound together by the tie of common
subjection to some central authority, whose commands
those members must obey. Also termed independent
state. Cf. client state, nonsovereign state under STATE.
[Cases: International Law ~3.]
"The essence of statehood is sovereignty. the principle that
each nation answers only to its own domestic order and is
not accountable to a larger international community, save
only to the extent it has consented to do so. Sovereign
states are thus conceived as hermetically sealed units,
atoms that spin around an international orbit, sometimes
colliding, sometimes cooperating, but always separate and
apart." David j. Bederman, International Law Frameworks
50 (2001).
part-sovereign state. A political community in which
part of the powers of external sovereignty are exer
cised by the home government, and part are vested in
or controlled by some other political body or bodies.
-Such a state is not fully independent because by
the conditions of its existence it is not allowed full
freedom ofaction in external affairs.
1524 sovereignty
sovereignty (sahv-[;}- Jrin-tee). (l8c) 1. Supreme
dominion, authority, or rule. [Cases: International
LawC:=>8.]
popular sovereignty. A system ofgovernment in which
policy choices reflect the preferences of the majority
ofcitizens.
state sovereignty. See STATE SOVEREIGNTY.
2. The supreme political authority of an independent
state. 3. 'Ibe state itself.
"It is well to [distinguish] the senses in which the word
Sovereignty is used. In the ordinary popular sense it means
Supremacy, the right to demand obedience. Although the
idea of actual power is not absent, the prominent idea is
that of some sort of title to exercise control. An ordinary
layman would call that person (or body of persons) Sov
ereign in a State who is obeyed because he is acknowl
edged to stand at the top, whose will must be expected to
prevail, who can get his own way, and make others go his,
because such is the practice of the country. EtymologICally
the word of course means merely superiority, and familiar
usage applies it in monarchies to the monarch. because he
stands first in the State, be his real power great or small."
James Bryce, Studies in Historv and Jurisprudence 504-05
(1901).
external sovereignty. The power of dealing on a nation's
behalf with other national governments.
internal sovereignty. lhe power enjoyed by a govern
mental entity ofa sovereign state, including affairs
within its own territory and powers related to the
exercise of external sovereignty.
sovran. See SOVEREIGN.
SOW. Abbr. STATEMENT OF WORK.
s.p. abbr. 1. SINE PROLE. 2. Same principle; same point.
-This notation, when inserted between two citations,
indicates that the second involves the same principles
as the first.
space arbitrage. See ARBITRAGE.
space charter. See CHARTER (8).
spacial jurisdiction. See JURISDICTION.
spado (spay-doh), n. [Latin] Roman law. 1. A eunuch. 2.
One who is incapable ofsexual intercourse by reason
of impotence. PI. spadones (spd-doh-neez).
spam. Unsolicited commercial e-mail. [Cases: |
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