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the
demise"] Hist. A phrase forming part ofthe title of the
old action of ejectment. Abbr. ex demo
ex directo (eks di-rek-toh). [Latin] Directly; immediately.
ex distribution. Without distribution. -Shares are
traded ex distribution when they no longer carry the
right to receive a distribution to be made to holders. -
Abbr. X; XDlS.
ex diverso (eks di-v3r-soh). [Latinlllist. On the other
hand; conversely.
ex dividend. Without dividend. -Shares are traded ex
dividend when the selier, not the purchaser, is entitled
to the next dividend payment because it will be made
before the stock transfer is completed. The first day on
which shares are traded ex dividend, the stock price will
drop by an amount usu. approximating the amount of
the dividend. -Abbr. XD.; X. Cf. CUM DIVIDEND.
ex-dividend date. The date on or after which the buyer
of a security does not acquire the right to receive a
recently declared dividend. -Also termed ex-date.
Cf. DIVIDEND DATE.
ex dolo malo (eks doh-loh mal-oh). [Latin] Out offraud;
out ofdeceitful or tortious conduct.
exeat (ek-see-;Jt), n. (18c) 1. Generally, permission to go
outside (a place). 2. Permission that a bishop grants to
a priest to go out ofhis diocese. Cf. NE EXEAT (1).
execute, vb. (14c) 1. To perform or complete (a contract
or duty) <once the contract was fully executed, the
parties owed no further contractual duties to each
other>. [Cases: Contracts 2. To change (as a
legal interest) from one form to another <the shifting
use was executed into a valid legal estate>. 3. To make
(a legal document) valid by signing; to bring (a legal
document) into its final, legally enforceable form
<each party executed the contract without a signa
ture witness>. 4. To put to death, esp. by legal sentence
<Johnson was executed shortly after midnight>. [Cases:
Sentencing and Punishment C;=> 1795.] 5. To enforce
and collect on (a money judgment) <Williams asked the
executed 650
sheriff to execute on the judgment>. [Cases: Execution
(;=: 1; Federal Civil Procedure (;=:2691.]
executed, adj. (16c) 1. (Of a document) that has been
signed <an executed will>. 2. That has been done, given,
or performed <executed consideration>.
"[Tlhe term 'executed' is a slippery word. Its use is to be
avoided except when accompanied by explanation ....
A contract is frequently said to be executed when the
document has been signed, or has been signed, sealed,
and delivered. Further, by executed contract is frequently
meant one that has been fully performed by both parties."
William R. Anson, Principles of the Law of Contract 26 n.*
(Arthur l. Corbin ed., 3d Am. ed. 1919).
executed consideration. See CONSIDERATION (1).
executed contract. See CONTRACT.
executed covenant. See COVENANT (1).
executed estate. See REMAINDER (1).
executed fine. See FINE (1).
executed note. See NOTE (1).
executed remainder. See vested remainder under
REMAINDER.
executed trust. See TRUST.
executed use. See USE (4).
executio (ek-s<l-kyoo-shee-oh), n. [Latin] 1. The perfor
mance or completion of a thing; the act of following
through on a commitment. 2. The doing ofsomething
thoroughly. 3. Management or administration. 4. Hist.
Execution; the final process in an action.
executio bonorum (b,,-nor-<lm). [Latin] Hist. The man
agement or administration ofgoods.
execution, n. (14c) 1. The act of carrying out or putting
into effect (as a court order or a securities transaction)
<execution of the court's decree> <execution of the
stop-loss order>. 2. Validation ofa written instrument,
such as a contract or will, by fulfilling the necessary
legal requirements <delivery of the goods completed the
contract's execution>. [Cases: Contracts (:::-J34; Sales
Vendor and Purchaser <::=>23; Wills (;=: 108
129.] 3. Judicial enforcement of a money judgment, usu.
by seizing and selling the judgment debtor's property
<even if the plaintiff receives a judgment against the
foreign debtor, execution is unlikely>. -Also termed
(in Scots law) diligence. [Cases: Execution Federal
Civil Procedure C=>2691.] 4. A court order directing
a sheriff or other officer to enforce a judgment, usu.
by seizing and selling the judgment debtor's property
<the court issued the execution authorizing seizure of
the car>. -Also termed writ ofexecution; judgment
execution; general execution. [Cases: Execution <:-"'::>74;
Federal Civil Procedure C=>2697.]
"A writ of execution is an authorization to an executive
officer, issued from a court in which a final judgment has
been rendered, for the purpose ofcarrying such judgment
into force and effect. It is founded upon the judgment,
must generally be conformed to it in every respect, and the
plaintiff is always entitled to it to obtain a satisfaction of
his claim, unless his right has been suspended by proceed
ings in the nature of an appeal or by his own agreement." BenjaminJ. Shipman, Handbook ofCommon-Law Pleading
26, at 50 (Henry Winthrop Ballantine ed., 3d ed. 1923).
alias execution. A second execution issued to enforce
a judgment not fully satisfied by the original writ. Cf.
alias writ under WRIT. [Cases: Execution C=>99.]
body execution. A court order requiring an officer
to take a named person into custody, usu. to bring
the person before the court to pay a debt; CAPIAS.
Execution (;=:'421; Federal Civil Procedure
close-jail execution. A body execution stating that
the person to be arrested should be confined in jail
without the ofmovement about the jailyard.
[Cases: Execution 448.]
dormant execution. An execution authorizing an
officer to seize and hold property rather than sell it,
until further notice.
junior execution. An execution that is subordinate to
another execution issued from an earlier judgment
against the same debtor. [Cases: Execution (;=: 112.]
malicious execution. An abuse of process by which a
person, maliciously and without reasonable cause,
issues an execution against the property of a judgment
debtor. [Cases: Execution (;:::;)454.]
special execution. An execution authorizing a judgment
to be satisfied from specified property. [Cases: Execu
tion 420.5.]
speedy execution. An execution issuing quickly (esp.
by judges at nisi prius) after a trial.
5. Criminal law. The carrying out of a death sentence
<the Supreme Court stayed the execution>. [Cases: Sen
tencing and Punishment C=>1795-1799.] -execute,
vb.
execution clause. The part ofa deed containing the date,
seal (if required), and signatures of the grantor, grant
or's spouse, and witnesses. [Cases: Deeds (;=:44-53.]
execution creditor. See CREDITOR.
executione facienda in withernamium (ek-s<l-kyoo
shee-oh-nee fay-shee-en-dd in with-dr-nay-mee-dm).
[Latin] Hist. A writ that lay for taking cattle ofa person
who had taken someone else's cattle out of the county
so that the sheriff could not replevy them.
executione judicii (ek-sd-kyoo-shee-oh-nee joo-dish-ee
I). [Latin] Hist. A writ directed to a judge ofan inferior
court to issue execution upon a judgment in that court,
or to return some reasonable cause why the judge has
delayed execution.
executioner. (I6c) A person who puts another person
to death to carry out a death sentence; a person who
carries out capital punishment on the state's behalf.
execution lien. See LIEN.
execution paree (eg-zay-koo-syawn pa-ray). [French]
French law. A right founded on an act approved and
verified before a notary, by which a creditor may
immediately without citation or summons seize
and cause to be sold the debtor's property and keep
651
the proceeds of the sale (to the extent of the indebted
ness).
execution-proof. See JUDGMENT-PROOF.
execution sale. See SALE.
executive, n. (18c) 1. The branch of government respon
sible for effecting and enforcing laws; the person or
persons who constitute this branch. _ The executive
branch is sometimes said to be the residue of all gov
ernment after subtracting the judicial and legislative
branches. Sometimes also termed executive depart
ment. Cf. LEGISLATURE; JUDICIARY (1). [Cases: Consti
tutional Law (;:::>2620-2626; United States C'=31.]
chiefexecutive. (1876) The head of the executive branch
of a government, such as the President of the United
States. [Cases: United States (;:::>26.]
2. A corporate officer at the upper levels of manage
ment. Also termed executive officer; executive
employee. executive, adj.
executive administration. Collectively, high public
officials who administer the chief departments of the
government.
executive agency. An executive-branch department
whose activities are subject to statute and whose con
tracts are subject to judicial review. _ One example is
the National Aeronautics and Space Agency. [Cases:
Administrative Law and Procedure (~~301-513;
United States
executive agreemeut. (1942) An international agree
ment entered into by the President, without approval
by the Senate, and usu. involving routine diplomatic or
military matters. Cf. TREATY (1). [Cases: United States
(;:::>28.]
executive board. See BOARD OF DIRECTORS.
executive branch. (ISc) The branch of government
charged with administering and carrying out the la,v;
EXECUTIVE (1). Cf. JUDICIAL BRANCH; LEGISLATIVE
BRANCH.
executive clemency. See CLEMENCY.
executive committee. See COMMITTEE.
executive department. See EXECUTIVE (1).
executive director. A salaried employee who serves as
an organization's chief administrative and operating
officer and heads its profeSSional staff. -Also termed
executive secretary; staffdirector.
executive employee. An employee whose duties include
some form ofmanagerial authority and active partici
pation in the control, supervision, and management of
the business. Often shortened to executive.
executive immunity. See IMMUNITY (1).
executive officer. See EXECUTIVE (2).
executive order. (1862) An order issued by or on behalf
ofthe President, usu. intended to direct or instruct the
actions of executive agencies or government officials,
or to set policies for the executive branch to follow. -
Abbr. ex. ord. [Cases: United States (;:::>28.] executor
executive pardou. See PARDON.
executive power. (17c) Constitutional law. The power
to see that the laws are duly executed and enforced.
-Under federal law, this power is vested in the Presi
dent; in the states, it is vested in the governors. The
President's enumerated powers are found in the U.S.
Constitution, art. II, 2; governors' executive powers
are provided for in state constitutions. The other two
great powers of government are the legislative power
and the judicial power. [Cases: Constitutional Law ~'=
2620-2626.]
executive privilege. See PRIVILEGE (3).
executive right. Oil & gas. The exclusive right to lease
specified land or mineral rights. _ The executive right
is one of the incidents of the mineral interest. [Cases:
Mines and Minerals
executive secretary. See EXECUTIVE DIRECTOR.
executive session. See SESSION (1).
executor, n. (l3c) 1. (ek-s<l-kyoo-t<lr) One who performs
or carries out some act. 2. (eg-zek-y;H;:,r) A person
named by a testator to carry out the provisions in the
testator's will. Cf. ADMINISTRATOR (2). [Cases: Execu
tors and Administrators Abbr. exor.
acting executor. (18c) One who assumes the role of
executor usu. temporarily but is not the legally
appointed executor or the executor-in-fact. -Also
termed temporary executor. [Cases: Executors and
Administrators G=22.J
coexecutor. See joint executor.
executor ab episcopo constitutus Cab ;:,-pis-k<l-poh kon
sti-t[y]oo-tas). [Law Latin] Eccles. law. An executor
appointed by a bishop; an administrator to an intes
tate. -Also termed executor dativus.
executor a lege constitutus (ay [or ah]lee-jee kon-sti
t[y]oo-tas). [Law Latin] Eccles. law. One authorized by
law to be an executor; the ordinary of the diocese.
executor a testatore constitutus (ay [or ahJ tes-ta
tor-ee kon-sti-t[y]oo-t<ls). [Law Latin] Eccles. law.
An executor appointed by a testator. Also termed
executor testamentarius.
executor dative. See DATIVE (1).
executor dativus. See executor ab episcopo constitu
tus.
executor de son tort (da sawn [or son] tor[t]). [Law
French "executor of his own wrong"] (17c) A person
who, without legal authOrity, takes on the responsibil
ity to act as an executor or administrator of a dece
dent's property, us |
, without legal authOrity, takes on the responsibil
ity to act as an executor or administrator of a dece
dent's property, usu. to the detriment of the estate's
beneficiaries or creditors. [Cases: Executors and
Administrators
"Executor de son tort~ or, executor of his own wrong. Is he
that takes upon him the office of an executor by intrusion,
not being so constituted by the testator." The Pocket Lawyer
and Family Conveyancer 98 (3d ed. 1833).
652 executor fund
executor lucratus (loo-kray-t;)s). An executor who has
assets of the testator, the latter having become liable
by wrongfully interfering with another's property.
executor testamentarius. See executor a testa tore con
stitutus.
executor to the tenor. Eccles. law. A person who is not
named executor in the will but who performs duties
similar to those ofan executor.
general executor. (18c) An executor who has the power
to administer a decedent's entire estate until its final
settlement.
independent executor. (1877) An executor who, unlike
an ordinary executor, can administer the estate with
very little supervision by the probate court . Only
a few states mostly in the West and Southwest
allow testators to designate independent executors.
But lawyers routinely write wills that relieve a trusted
executor from obtaining appraisals, from providing
inventories and surety bonds, and from obtaining
court approval "to the maximum extent permitted
by law." The Uniform Probate Code endorses inde
pendent administration, and it is the usual process
unless a party demands court-supervised administra
tion. Also termed nonintervention executor. [Cases:
Executors and Administrators 75.J
joint executor. (17c) One oftwo or more persons named
in a will as executor ofan estate. Also termed coex
ecutor. [Cases: Executors and Administrators
123.J
limited executor. (18c) An executor whose appoint
ment is restricted in some way, such as time, place,
or subject matter.
literary executor. Copyright. A limited-purpose
executor appointed to manage copyrighted materi
als in an estate. [Cases: Executors and Administra
tors
nonintervention executor. See independent executor.
special executor. (18c) An executor whose power is
limited to a portion of the decedent's estate. [Cases:
Executors and Administrators (;::.22.J
substituted executor. U8c) An executor appointed to
act in the place ofan executor who cannot or will not
perform the duties. [Cases: Executors and
Administrators
temporary executor. See acting executor.
3. (eg-zek-ya-t;)r) Patents. One who represents a legally
incapacitated inventor. [Cases: Patents (;::102.J -exe
cutorial, adj. executorship, n.
executor fund. See FUND (1).
executor's bond. See BOND (2).
executory (eg-zek-y;)-tor-ee), adj. (16c) 1. Taking full
effect at a future time <executory judgment>. 2. To be
performed at a future time; yet to be completed <execu
tory contract>.
executory accord. See ACCORD (2). executory bequest. See BEQUEST.
executory consideration. See CONSIDERATION (1).
executory contract. See CONTRACT.
executory covenant. See COVENANT (1).
executory devise. See DEVISE.
executory interest. (1833) A future interest, held by a
third person, that either cuts off another's interest or
begins after the natural termination of a preceding
estate. Cf. REMAINDER. [Cases: Estates in Property
1.J
"What is an executory interest? Here is a pretty good defini
tion: An executory interest is any future interest created in
a person other than the transferor that is not a remainder-.
Here are five classic examples of executory interest: (1) o transfers 'to A for then, one day after A's death, to
the heirs of A.' The creates a springing executory
interest in those who will be A's heirs. (2) 0 transfers 'to
A for 200 years if he shall so long live, then to the heirs of
A.' This transfer also creates a springing executory interest
in A's prospective heirs, (3) 0 transfers 'to A and his heirs
five years from the date of this deed.' A owns a springing
executory interest. (4) 0, when B is fifteen, transfers 'to
A for life; then no sooner than one day after A's death, to
B and his heirs if B ever reaches 21.' B owns a springing
executory interest. (5) 0 transfers 'to A and his heirs; but if
A marries X, to B and his heirs.' B owns a shifting executory
interest." Thomas F. Bergin & Paul G. Haskell, Preface to
Estates in Land and Future Interests 80 (2d ed. 1984).
shifting executory interest. An executory interest that
operates in defeasance ofan interest created simulta
neously in a third person. [Cases: Wills ~625.J
springing executory interest. An executory interest
that operates in defeasance of an interest left in the
transferor. [Cases: Wills
executory judgment. See JUDGMENT.
executory limitation. See LIMITATION.
executory process. Civil law. I. A process that can be
resorted to either (1) when the right ofa creditor arises
from an act importing a confession of judgment, and
that contains a privilege or mortgage in the creditor's
favor, or (2) when the creditor demands the execution
of a judgment that has been rendered by a different
tribunal. 2. An accelerated procedure, summary in
nature, by which the holder ofa mortgage or privilege
evidenced by a confession ofjudgment seeks to effect an
ex parte seizure and sale of the subject property. [Cases:
Chattel Mortgages Mortgages G'-;:;499.j
executory remainder. See contingent remainder under
REMAINDER.
executory sale. See SALE.
executory trust. See TRUST.
executory unilateral accord. (l940) An offer to enter a
contract; OFFER (2).
executory use. See springing use under USE (4).
executory warranty. See WARRANTY (3).
executress. See EXECUTRIX.
executrix (eg-zek-p-triks), n. Archaic. A female
executor. ~Abbr. exrx. Also termed executress. PI.
653
executrixes (eg-zek-Y<l-trik-s<lz), executrices (eg-zek
Y<l-trl-seez). See EXECUTOR.
executry. Scots law. 1. Executorship. See EXECUTOR (1),
(2). 2. The movable property of a decedent.
exedos (e-he-thohs), n. See EJIDOS.
exemplar (eg-zem-pl<lr or -plahr), n. (lSc) 1. An ideal or
typical example; a standard specimen <handwriting
exemplars>. 2. Nontestimonial identification evidence,
such as fingerprints, voiceprints, and DNA samples. See
VOICE EXEMPLAR. [Cases: Criminal Law C='404.85;
Evidence
exemplary, adj. (16c) 1. Serving as an ideal example;
commendable <exemplary behavior>. 2. Serving
as a warning or deterrent; admonitory <exemplary
damages>.
exemplary damages. See punitive damages under
DAMAGES.
exemplary substitution. See SUBSTITUTION (5).
exemplification, n. (l6c) An official transcript ofa public
record, authenticated as a true copy for use as evidence.
[Cases: Criminal Law Evidence C=' 338.]
exemplify, vb.
exemplificatione (eg-zem-pl<l-f<l-kay-shee-oh-nee).
[Latin] A writ granted for the exemplification or tran
script ofan original record.
exemplified copy. See certified copy under COPY.
exempli gratia (eg-zem-ph gray-shee-<l or ek-sem-plee
grah-tee-<l). [Latin] (17c) For example; for instance. -
Abbr. e.g. or (rarely) ex. gr.
exemplum (eg-zem-pldm), n. [Latin] (19c) Civil law. A
copy; a written authorized copy.
exempt, adj. (14c) Free or released from a duty or lia
bility to which others are held <persons exempt from
military service> <property exempt from sequestra
tion>. -exempt, vb. exemptive, adj.
exempt income. See INCOME.
exemption. (14c) 1. Freedom from a duty, liability, or
other requirement; an exception. See IMMUNITY;
EXCEPTION (2). 2. A privilege given to a judgment debtor
by law, alloWing the debtor to retain certain property
without liability. [Cases: Exemptions 1; Home
stead 1.] 3. Tax. An amount allowed as a deduc
tion from adjusted gross income, used to determine
taxable income. Cf. DEDUCTION (2). [Cases: Internal
Revenue Taxation 3518.]
dependency exemption. (1920) A tax exemption
granted to an individual taxpayer for each depen
dent whose gross income is less than the exemption
amount and for each child who is younger than 19
or, if a student, younger than 24. [Cases: Internal
Revenue C=>3294; Taxation 3519.]
personal exemption. (1920) An amount allowed as a
deduction from an individual taxpayer's adjusted
gross income. (Cases: Internal Revenue C=>3295;
Taxation C=~)3501, 3519.] exequatur
exemption clause. (1840) A contractual provision pro
viding that a party will not be liable for damages for
which that party would otherwise have ordinarily been
liable. Cf. EXCEPTION CLAUSE; EXCULPATORY CLAUSE;
INDEMNITY CLAUSE. [Cases: Contracts C='114, 189.5.]
''An exemption clause may take many forms, but all such
clauses have one thing in common in that they exempt a
party from a liability which he would have borne had it not
been for the clause. In some cases an exemption clause
merely relieves a party from certain purely contractual obli
gations, for example, the duties of a seller in a contract of
sale regarding the quality and fitness of the goods. In other
cases exemption clauses go further and protect the party
not merely from contractual liability but even from liability
which would otherwise have arisen in tort. For example, a
shipping company's ticket may exempt the company from
liability to the passenger for any injuries, however caused.
Now if the passenger is injured as a result of the negligence
of the company's employees, that would, in the normal
way, give rise to an action in tort for negligence, quite apart
from the contract." P.S. Atiyah, An Introduction to the Law
ofContract 167 (3d ed. 1981).
exemption equivalent. The maximum value of assets
that one can transfer to another before incurring a
federal gift and estate tax.
exemption law. (1839) A law describing what property
of a debtor cannot be attached by a judgment creditor
or trustee in bankruptcy to satisfy a debt. See EXEMPT
PROPERTY (1). (Cases: Exemptions Homestead
C-~1.1
ex empto (eks emp-toh). (Latin] Roman & civil law. Out
ofpurchase; founded on purchase.
exempt organization. An organization that is either
partially or completely exempt from federal income
taxation. See CHARITABLE ORGANIZATION. [Cases:
Internal Revenue C='404S-4071.]
exempt property. (1839) 1. A debtor's holdings and
possessions that, by law, a creditor cannot attach to
satisfy a debt. All the property that creditors may
lawfully reach is known as nonexempt property.
Many states provide a homestead exemption that
excludes a person's house and household items, up to a
certain amount, from the liens of most creditors. The
purpose of the exemption is to prevent debtors from
becoming destitute. See HOMESTEAD. Cf. NONEXEMPT
PROPERTY. [Cases: Exemptions Homestead
1.]2. Personal property that a surviving spouse is auto
matically entitled to receive from the decedent's estate.
[Cases: Executors and Administrators
exempt security. See SECURITY.
exempt transaction. A sale that falls outside the scope of
a certain statute, such as the Securities Act of 1933 or
the Securities Exchange Act of 1934. [Cases: Securities
Regulation C-'18.10-l8.30.]
exennium (eg-zen-ee-<lm), n. [Latin] Hist. A gift, esp. one
given at the new year.
ex eo quodplerumque fit (eks ee-oh kwod pli-r:.>m-kwee
fit). [Latin] Hist. From that which generally happens.
exequatur (ek-s<l-kway-tClr). [Latin "let it be executed"]
(l7c) A written official recognition and authorization
654 exequitate
ofa consular officer, issued by the government to which
the officer is accredited.
"Consuls on exhibiting proof of their appointment, if not
objectionable persons, receive an exequatur, or permission
to discharge their functions within the limits prescribed,
which permission can be withdrawn for any misconduct."
Theodore D. Woolsey, Introduction to the Study of Interna
tional Law 100, at 162-63 (5th ed. 1878).
ex equitate (eks ek-wa-tay-tee). [Latin] Hist. According
to equitable rules.
ex |
ex equitate (eks ek-wa-tay-tee). [Latin] Hist. According
to equitable rules.
exercise, vb. (14c) 1. To make use of; to put into action
<exercise the right to vote>. 2. To implement the terms
of; to execute <exercise the option to buy the commodi
ties>. -exercise, n.
Exercise Clause. See FREE EXERCISE CLAUSE.
exercise of judgment. (17c) The use of sound discre
tion -that is, discretion exercised with regard to
what is right and equitable rather than arbitrarily or
willfully.
exercise price. See strike price under PRICE.
exercise value. The value to an optionholder of using
the option.
exercitalis (eg-zar-si-tay-lis), n. [Latin] A soldier; a
vassal.
exercitor (eg-zar-si-tor), n. [Latin "an exercisor"] (17c)
Civil law. The person to whom the profits ofa ship tem
porarily belong, whether that person is the owner, char
terer, or mortgagee. -Also termed exercitor maris;
exercitor navis. Cf. SHIP'S HUSBAND.
exercitoria actio. See actio exercitoria under ACTIO.
exercitorial power (eg-zar-si-tor-ee-al). The trust given
to a shipmaster.
exercitor maris (eg-zClr-si-tar mar-is). See EXERCITOR.
exercitor navis (eg-zar-si-tar nay-vis). See EXERCITOR.
exercituale (eg-zar-sich-oo-ay-Iee), n. [Law Latin, ff.
Latin exercitus "an army"] Hist. A heriot paid only in
arms, horses, or military accouterments. See HERIOT.
exercitus (eg-zar-si-tas), n. [Latin "an army"] Hist. An
army; an armed force . Ofindefinite number, the term
was applied on various occasions to a gathering of 42
armed men, of 35, or even of4.
ex eventu (eks i-ven-t[y]oo). [Latin] Hist. After the event;
following the occurrence.
exfacie (eks fay-shee-ee or -shee or -sha). [Latin] (1861)
Archaic. On the face of it; evidently; apparently . The
phrase typically referred to a defect appearing from the
document itself, without further inquiry.
exfacto (eks fak-toh). [Latin "from a fact"] From or in
consequence of a fact or action; actually; DE FACTO.
exfestucare (eks-fes-ta-kair-ee), vb. [Latin] Hist. To
abdicate or resign; to surrender (an estate, office, or
dignity) by the symbolic delivery of a staff or rod
(festuca) to the transferee.
exfictione juris (eks fik-shee-oh-nee joor-is). [Latin] By
a fiction oflaw. ex figura verborum (eks fi-gyuur-d vdr-bor-dm). [Law
Latin] Hist. By the form of the words used . A defec
tive deed could not be fixed merely by calling it some
thing else.
exfraude creditorum (eks fraw -dee kred -kred -i -tor-dm).
[Law Latin] Hist. On the ground offraud toward credi
tors. A preference could be set aside if it were made
within 60 days of the bankruptcy filing.
exfrediare (eks-free-dee-air-ee), vb. [Latin] To break the
peace; to commit open violence.
ex. gr. abbr. EXEMPLI GRATIA.
ex gratia (eks gray-shee-d or grah-tee-d). [Latin "by
favor"] (18c) As a favor; not legally necessary. -Also
termed a gratia.
ex gratia payment. (1916) A payment not legally
required; esp., an insurance payment not required to
be made under an insurance policy. [Cases: Insurance
C=3615(1).]
ex gravi querela (eks gray-vI kwa-ree-la). [Latin "from
or on the grievous complaint"] Hist. A writ that lay for
a person to whom any lands or tenements in fee were
devised by will (within any city, town, or borough in
which lands were devisable by custom), against an heir
ofthe devisor who entered and detained them from the
devisee. The writ was abolished by the Real Property
Limitation Act (1833). St. 3 & 4 Will. 4, ch. 27, 36.
exhausted ballot. See exhausted vote under VOTE (1).
exhausted combination. See old combination under
COMBINATION.
exhausted-combination rejection. See old-combination
rejection under REJECTION.
exhausted vote. See VOTE (1).
exhaustion of remedies. (1876) The doctrine that, if
an administrative remedy is provided by statute, a
claimant must seek relief first from the administrative
body before judicial relief is available. The doctrine's
purpose is to maintain comity between the courts and
administrative agencies and to ensure that courts will
not be burdened by cases in which judicial relief is
unnecessary. -Also termed exhaustion ofadminis
trative remedies. [Cases: Administrative Law and Pro
cedure C=229.]
"The traditional rule can ... be fairly simply stated. A
litigant must normally exhaust state 'legislative' or 'admin
istrative' remedies before challenging the state action in
federal court. He or she need not normally exhaust state
'judicial' remedies. The rationale for this distinction is that
until the administrative process is complete, it cannot be
certain that the party will need judicial relief, but when the
case becomes appropriate for judicial determination, he
or she may choose whether to resort to a state or federal
court for that relief. The word 'normally' is required in
both branches of the rule." Charles Alan Wright, The Law
of Federal Courts 49, at 313 (5th ed. 1994).
vicarious exhaustion of remedies. The rule that if
one member of a class satisfies a requirement to
exhaust administrative remedies, that is enough
for all others similarly situated to be considered as
having exhausted the remedies. -Often shortened
655
to vicarious exhaustion. [Cases: Administrative Law
exhaustiou-of-rights doctriue. Int'llaw. The principle
that once the owner of an intellectual-property right
has placed a product covered by that right into the
marketplace, the right to control how the product is
resold within that internal market is lost . Within
a common market, such as the European Union, the
doctrine also applies to the import and export of the
goods between member nations. Cf. PATENT-EXHAUS
TION DOCTRINE.
exhaustion ofstate remedies. (1944) The doctrine that
an available state remedy must be exhausted in certain
types of cases before a party can gain access to a federal
court. For example, a state prisoner must exhaust
all state remedies before a federal court will hear a
petition for habeas corpus. [Cases: Habeas Corpus
(;':::2319-352.J
exhibere (ek-5;)-beer-ee), vb. [Latin) 1. To present (a
tangible thing) 50 that it may be handled. 2. To appear
personally to defend against an action at law.
exhibit, n. (17c) 1. A document, record, or other tangible
object formally introduced as evidence in court.
[Cases: Criminal Law C-=>404.5; Evidence (;:.'188.] 2.
A document attached to and made part ofa pleading,
motion, contract, or other instrument.
exhibit, vb. Archaic. To bring a lawsuit by filing (a bill).
exhibitio billae (ek-s;)-bish-ee-oh bil-ee). [Latin] Hist.
The commencement of a suit by presenting or exhibit
ing a bill to the court.
exhibition. Scots law. An action to compel the produc
tion or delivery ofdocuments.
exhibitionism, n. (1893) The indecent display of one's
body. -exhibitionist, adj. & 11.
exhibition value. In the motion-picture industry, the
minimum receipts that distributors expect to realize
from showing a particular film. -Also termed
minimum sale; price expecta11cy.
exhibit list. (1929) 1. A pretrial filing that identifies by
number and description the exhibits a party intends to
offer into evidence at trial. Courts often require the
exchange of exhibit lists before trial so that evidentiary
disputes can be resolved with minimal disruption in the
course of a jury trial. lCases: Federal Civil Procedure
1941; Pretrial Procedure (;':::2744,752.] 2. A
document prepared during a trial by the clerk or a court
room deputy to identify by number and description the
exhibits that the parties have entered into evidence.
exhibitory interdict. See INTERDICT (1).
exhumation (eks-hyoo-may-sh;)n or eg-zyoo-), 11. (18c)
The removal from the earth ofsomething buried, esp.
a human corpse; disinterment. [Cases: Dead Bodies
ex hypothesi (eks hI-poth-;)-sI). [Latin] Hypotheti
cally; by hypothesis; on the assumption <conviction
for a felony is ex hypothesi impossible in the case of
suicide>. ex ingenio
exidos (e-hee-thohs), 11. See EfIDOS.
exigency (ek-s;)-j;)n-see), 11. (16c) A state of urgency; a
situation requiring immediate action. Also termed
exige11ce.
exigendary (ek-s;)-jen-d<l-ree), n. See EXIGENTER.
exigent, adj. (17c) Requiring immediate action or aid;
urgent <exigent circumstances>.
exigent (ek-s;)-j;)nt), n. Hist. A judicial writ employed
in the process of outlawry, commanding the sheriff
to demand the defendant's appearance, from county
court to county court, until he was outlawed or, if
the defendant appeared, to take him before the court to
answer the plaintiff's action. See EXIGI FACIAS.
exigent circumstances. See CIRCUMSTANCE.
exigenter (ek-s;)-jen-t;)r), rl. (16c) Hist. An officer of
the court of common pleas responsible for preparing
exigents and proclamations in the process of outlawry.
This office was abolished in 1837 by the Superior
Courts (Officers) Act, St. 7 Will. 4, and 1 Vict., ch.
30. -Also termed exige11dary.
exigent list. A list of cases set down for hearing upon
various incidental and ancillary motions and rules.
exigent search. See SEARCH.
exigible (ek-s;)-j;)-b;)l), adj. (17c) Requirable; demandable
(as a debt). Cf. PRESTABLE.
exigible debt. See DEBT.
exigifadas (ek-sCl-jI fay-shee-Cls). [LatinlThat you cause
to be demanded . These were the emphatic words of
the Latin form of the writ of exigent; the phrase was
sometimes used as the name of the writ. See EXIGENT.
exile, n. (14c) 1. Expulsion from a country, esp. from the
country ofone's origin or longtime residence; banish
ment.
forced exile. Compelled removal or banishment from
one's native country.
2. A person who has been banished. 3. A prolonged vol
untary absence from one's home country. exile, vb.
exilium (eg-zil-ee-;)m), 11. [Latin "exile"] Hist. 1.
the act ofdriving away or despoiling. 2. A type of waste
consisting in the driving away of an estate's bondser
vants and tenants by demolishing their homes or by
enfranchiSing the bondservants and then turning them
out of their homes.
Ex-1m Bank. See EXPORT-IMPORT BANK OF THE UNITED
STATES.
ex incommodo (eks in-kom-;)-doh). [Latin) Hist. On
account ofinconvenience . An argument based solely
on inconvenience was usu. rejected.
ex incontinenti (eks in-kon-td-nen-tr). [Latin] Hist.
Without delay; in a summary manner.
ex industria (eks in-das-tree-;). [Latin] With contriv
ance or deliberation; designedly; on purpose.
ex ingenio (eks in-jeu-ee-oh). [Latin] Hist. According to
the judgment ofanyone.
656 ex instrumentis de novo repertis
ex instrumentis de novo repertis (eks in-stra-men-tis
dee noh-voh rep-ar-tis). [Law Latin) Hist. On account
of documents newly or recently found . The phrase
appeared in reference to a basis for altering a decree.
See INSTRUMENTA NOVITER REPERTA.
ex integro (eks in-t::l-groh). [Latin] Anew; afresh.
ex intervallo (eks in-t::lr-val-oh). [Latin] Hist. At some
interval.
existent corner. See CORNER.
existimatio (eg-zis-t::l-may-shee-oh), n. [Latin] Roman
law. 1. The civil reputation belonging to a Roman
citizen of unimpeached dignity or character; the
highest standing of a Roman citizen. 2. The decision
or award of an arbiter. PI. existimationes (eg-zis-t::l
may-shee-oh-neez).
exit, n. (16c) 1. A way out. See EGRESS. 2. In a docket
entry, an issuance of something (as a writ or process).
For example, exit attachment denotes that a writ of
attachment has been issued in the case. exit, vb.
exitus (ek-si-t::ls), n. [Latin] Hist. 1. Children; |
case. exit, vb.
exitus (ek-si-t::ls), n. [Latin] Hist. 1. Children; offspring. 2.
The rents, issues, and profits oflands and tenements. 3.
An export duty. 4. The conclusion ofa pleading.
ex jure (eks juur-ee). [Latin] Of or by legal right.
ex jure naturae (eks joor-ee n::l-t[y]oor-ee). [Latin] Hist.
According to the law of nature.
ex jure representation is (eks joor-ee rep-ri-zen-tay-shee
oh-nis). [Law Latin] Hist. According to the law of rep
resentation.
exjusta causa (eks j3s-ta kaw-z::l). [Latin] From a just or
lawful cause; by a just or legal title.
exjustitia (eks j ..s-tish-ee-::l). [Latin] From justice; as a
matter ofjustice.
exlegalitas (eks-Ia-gay-la-tas), n. [Law Latin] Hist. 1.
Outlawry; outside the law's protection. 2. A person
who is prosecuted as an outlaw.
ex legal municipal bond. See BOND (3).
exlegare (eks-Ia-gair-ee), vb. [Law Latin] Hist. To outlaw;
to deprive of the benefit and protection ofthe law.
ex lege (eks lee-jee or lay-gay). [Latin] By virtue oflaw; as
a matter oflaw <property forfeited ex lege>.
"Antecedent rights 'in personam' ... either arise or do not
arise out of a contract .... In the latter case, since they
arise from facts of various kinds to which it pleases the Law
to affix similar results, we shall describe them as rights ex
lege'; and it will be convenient to consider the rights which
arise thus variously before treating of those which arise
solely from contract .... The rights which we describe as
arising 'ex lege' were described by the Roman lawyers as
arising 'quasi ex contractu,' and more simply, 'ex variis
causarum figuris.'" Thomas E. Holland, The Elements of
Jurisprudence 246-47 (l3th ed. 1924).
ex legibus (eks lee-ja-bas). [Latin "according to the laws"]
Hist. To be interpreted according to both the letter and
the spirit ofthe law.
exlex (cks-Ieks), n. [Law Latin] Hist. An outlaw; one who
is outside the law's protection. ex licentia regis (eks h-sen-shee-a ree-jis). [Latin] By the
king's license.
ex locato (eks loh-kay-toh). [Latin) Roman law. From
lease; out ofletting. This term referred to an action
or right of action arising out of a contract of hiring,
bailment for reward, or employment. See actio loeati
under ACTIO.
ex maleficio (eks mal-::l-fish-ee-oh), adv. [Latin] By mal
feasance.
ex maleficio, adj. [Latin] Tortious.
ex malitia (eks ma-lish-ee-a). [Latin] Hist. From malice;
maliciously . In the law ofdefamation, the term refers
to a publication that is false and without legal excuse.
ex malo regimine (eks mal-Ioh ri-jim-a-nee). [Latin]
Hist. From bad treatment.
ex mandato (eks man-day-toh). [Latin] Hist. According
to the mandate; arising from a mandate .
ex mere motu (eks meer-oh moh-tyoo). [Latin "on his
mere motion"] Hist. Voluntarily; without suggestion
or influence from another person. The phrase was
formerly sometimes used in reference to a court, as an
equivalent ofsua sponte or on its own motion. See SUA
SPONTE.
ex metu carceris (eks mee-t[y]00 kahr-sar-is). [Latin]
Hist. From fear of imprisonment.
ex mora (eks mor-a). [Latin] Civil law. From or in conse
quence ofdelay. Interest is allowed ex mora -that is,
if there has been delay in repaying borrowed money.
ex mora debitoris (eks mor-a deb-i-tor-is). [Latin] Hist.
On account of the debtor's delay . The phrase appeared
in reference to a basis for charging interest on a debt.
ex more (eks mor-ee). [Latin] According to custom.
ex mutuo (eks myoo-choo-oh). [Latin] From or out of
loan. In old English law, a debt was said to arise ex
mutuo when one lent another anything that consisted
in number, weight, or measure.
ex natura (eks na-t[y]oor-a). [Latin] Hist. Naturally;
according to nature.
ex naturafeudi (eks na-t[y]oor-<'l fyoo-dl). [Law Latin]
Hist. According to the nature of the feudal right.
ex naturali jure (eks nach-..-ray-h joor-ee), adv. [Latin]
By or according to natural law <ex naturali jure some
time may be needed after a declaration of war before
the war begins>. See NATURAL LAW.
ex natura rei (eks na-t[y]oor-::l ree-I). [Latin] Hist.
According to the nature ofthe thing (or transaction).
ex necessitate (eks na-ses-i-tay-tee). [Latin] Ofor from
necessity.
ex necessitate legis (eks n::l-ses-i-tay-tee lee-jis). From
or by necessity oflaw.
ex necessitate rei (eks na-ses-i-tay-tee ree-I). From the
necessity or urgency of the thing or case.
ex nihilo (eks m-hi-loh). [Latin] From nothing.
ex nobili officio (eks nob-i-h a-fish-ee-oh). [Latin "by
virtue ofits noble office"] Scots law. (Of a judicial act)
done as a matter ofequity. See NOBILl OFFICIO.
ex officio (eks d-fish-ee-oh), adv. & adj. [Latin] (16c) By
virtue or because ofan office; bv virtue of the author
ity implied by office. -The ter~ is often misused as
a synonym for "nonvoting." Some meetings mistak
enly label their regularly invited guests as "ex officio
members" when in fact they are not members at all;
others mistakenly refer to the nonvoting members as
"ex officio members" even though some nonvoting
members are present only in an individual capacity
and not by virtue ofoffice, or even though some voting
members also serve ex officio. But an ex officio member
is a voting member unless the applicable governing
document provides otherwise.
"Frequently boards include ex-officio members -that
is, persons who are members of the board by virtue of
an office or committee chairmanship held in the society,
or in the parent state or national society or federation or
some allied group; or -sometimes in boards outside of
organized societies -by virtue of a public office. In the
executive board of a society, if the ex-officio member of
the board is under the authority of the society (that is, if he
is a member, officer, or employee of the society), there is
no distinction between him and the other board members.
If the ex-officio member is not under the authority of the
society, he has all the privileges of board membership,
including the right to make motions and to vote, but none
ofthe obligations -just as in a case, for example, where
the governor of a state is ex officio a trustee of a private
academy." Henry M. Robert, Robert's Rules ofOrder Newly
Revised 49, at 466 (lOth ed. 2000).
ex officio information. English law. Acriminal informa
tion filed by the attorney general ex officio on behalf of
the Crown, in the Court of King's Bench, for offenses
more immediately affecting the government, as distin
guished from informations in which the Crown is the
nominal prosecutor.
ex officio justice. (1855) A judge who serves on a com
mission or board only because the law requires the
presence of a judge rather than because the judge was
selected for the position.
ex officio member. See member ex ojficio under
MEMBER.
ex officio service (eks a-fish-ee-oh). (1845) A service
that the law imposes on an official by virtue of the
office held, such as that of a local justice of the peace
to perform marriage ceremonies. [Cases: Officers and
Public Employees Cc;;) llO.]
exogamous insemination. See artificial insemination by
donor under ARTIFICIAL INSEMINATION.
exoine (e-soyn), n. [French "excuse"] French law. An
act or instrument in writing containing the reasons
why a party in a civil suit, or a person accused, has not
appeared after being summoned. See ESSOIN.
exonerate (eg-zon-<l-rayt), vb. (l6c) 1. To free from
responsibility <exonerate from the payment of the
debt>. Cf. EXCULPATE. 2. To free from encumbrances
<exonerate the property from the mortgage lien>.
exonerative (eg-zon-ar-ay-tiv or adj. exoneration (eg-zon-a-ray-shan). (16c) 1. The removal of
a burden, charge, responsibility, or duty. 2. The right
to be reimbursed by reason ofhaving paid money that
another person should have paid. 3. The equitable right
ofa surety -confirmed by statute in many states -to
proceed to compel the principal debtor to satisfy the
obligation, as when, even though the surety would have
a right of reimbursement, it would be inequitable for
the surety to be compelled to perform if the principal
debtor can satisfy the obligation. -When a testator
leaves a gift of property encumbered by a mortgage
or lien, the doctrine of exoneration operates to satisfy
the encumbrance from the general assets ofthe estate.
Many states have abandoned the common-law rule in
favor of exoneration. See EQUITY OF EXONERATION;
QGIA TIMET. [Cases: Principal and Surety <2=' 179;
Wills C:~'736, 821.]
exoneration, snit for. See SUIT FOR EXONERATION.
exoneratione sectae (eg-zon-d-ray-shee-oh-nee sek-tee).
[Latin]lIist. A writ that lay for the Crown's ward, to be
free from all suit during wardship.
exoneratione sectae ad curiam baron (eg-zon-d-ray
shee-oh-nee sek-tee ad kyoor-ee-dm bar-dn). [Latin
"by exoneration ofthe suit to the lord's court"] Hist. A
writ issued by the guardian of the Crown's ward, for
bidding the sheriff or steward of a particular court from
distraining or taking other action against the ward.
exonerative fact. See FACT.
exoneretur (eg-zon-a-ree-tilr). Hist. [Latin "let him be
relieved or discharged"] A note, recorded on a bail
piece, of a court order to release a bail obligation after
the court has sentenced the defendant to prison. Cf.
BAILPIECE (1).
exor. abbr. EXECUTOR.
ex. ord. (often cap.) abbr. EXECUTIVE ORDER.
exordinm (eg-zor-dee-dm). [Latin] (l6c) An introduc
tion in a discourse or writing, esp. in a will. In a will,
the exordium usu. contains statements ofthe testator's
name and capacity to make the will. -Also termed
exordium clause; introductory clause.
exparitate raHonis (eks par-d-tay-tee ray-shee-oh-nis or
rash-ee-). [Law Latin] Hist. By a parity of reasoning.
ex parte (eks pahr-tee), adv. [Latin "from the part"] (ISc)
On or from one party only, usu. without notice to or
argument from the adverse party <the judge conducted
the hearing ex parte>.
ex parte, adj. (17c) Done or made at the instance and
for the benefit of one party only, and without notice
to, or argument by, any person adversely interested; of
or relating to court action taken by one party without
notice to the other, usu_ for temporary or emergency
relief <an ex parte hearing> <an ex parte injunction>.
Despite the traditional one-sidedness of ex parte
matters, some courts now require notice to the oppo
sition before what they call an "ex parte hearing."
Sometimes spelled exparte. -ex parte, adv.
658 ex parte application
ex parte application. See ex parte motion under MOTION
(1).
ex parte communication. See COMMUNICATION.
ex parte divorce. See DIVORCE.
ex parte hearing. See ex parte proceeding under PRO
CEEDING.
ex parte injunction. See INJUNCTION.
ex parte materna (eks pahr-tee md-f:u-nd). [Latin] On
the mother's side; of the maternal line.
ex parte motion. See MOTION (1).
ex parte order. See ORDER (2).
ex parte paterna (eks pahr-tee p,H3r-n<'l). [Latin] On the
father's side; of the paternal line.
ex parte proceeding. See PROCEEDING.
Ex Parte Quayle action. See QUAYLE ACTION.
ex parte reexamination. See REEXAMINATION.
expatriate (ek-spay-tree-it), n. (18c) An expatriated
person; esp., a person who lives permanently in a
foreign country.
expatriate (ek-spay-tree-ayt), vb. (1812) 1. To withdraw
(oneself) from residence in or allegiance to one's native
country; to leave one's home country to live elsewhere.
[Cases: Aliens, Immigration, and Citizenship (::=680.J
2. To banish or exile (a person). expatriation, n.
expectancy, n. (1811) 1. Property. An estate with a rever
sion, a remainder, or an executory |
expectancy, n. (1811) 1. Property. An estate with a rever
sion, a remainder, or an executory interest. [Cases:
Estates in Property C==' 1; Remainders Reversions
1.J 2. Wills & estates. Ihe possibility that an heir
apparent, an heir presumptive, or a presumptive next
of kin will acquire property by devolution on intestacy,
or the possibility that a presumptive beneficiary will
acquire property by will. [Cases: Descent and Distri
bution <8=::>68; Wills C::;>7.] 3. Insurance. The probable
number ofyears in one's life. See LIFE EXPECTANCY.
expectancy damages. See expectation damages under
DAMAGES.
expectancy table. See ACTUARIAL TABLE.
expectant, adj. (14c) Having a relation to, or being
dependent on, a contingency; CONTINGENT.
expectant beneficiary. See expectant distributee under
DISTRIBUTEE.
expectant distributee. See DISTRIBUTEE.
expectant estate. See FUTURE INTEREST.
expectant heir. See HEIR.
expectant right. See RIGHT.
expectation, n. (16c) l.lhe act oflooking forward; antic
ipation. 2. A basis on which something is expected to
happen; esp., the prospect ofreceiving wealth, honors,
or the like.
"[E]xpectation does not in itself amount to intention. An
operating surgeon may know very well that his patient
will probably die of the operation; yet he does not intend
the fatal consequence which he expects. He intends the
recovery which he hopes for but does not expect." John Salmond, Jurisprudence 379-80 (Glanville L Williams ed.,
10th ed. 1947).
expectation damages. See DAMAGES.
expectation interest. See INTEREST (2).
expectation ofHfe. See LIFE EXPECTANCY.
expectation ofprivacy. (1965) A belief in the existence of
the right to be free ofgovernmental intrusion in regard
to a particular place or thing . To suppress a search on
privacy grounds, a defendant must show the existence
of the expectation and that the expectation was reason
able. [Cases: Searches and Seizures e:-~26.]
expected/intended exclusion. See EXCLUSION (J).
expediente (ek-sped-ee-en-tee), n. [Spanish] Spanish law.
1. The papers or documents constituting a grant or title
to land from the government; esp., a historical record
of proceedings relating to a grant of land by the sov
ereign. 2. A legal or administrative case file; esp., the
official record ofall filings and orders in a lawsuit. 3. A
maneuver intended to achieve a particular result.
expediment (ek-sped-a-m;mt), n. (1848) The whole of
one's goods and chattels.
expedited proceeding. See SHOW-CAUSE PROCEEDING.
expeditio brevis (ek-sp<'l-dish-ee-oh bree-v<'ls). [Latin]
Archaic. The service ofa writ.
expel, vb. (I5c) To drive out or away; to eject, esp. with
force. See EJECT; EVICT.
expenditor (ek-spen-da-tdr). (15c) One who expends or
disburses certain taxes; a paymaster.
expenditure. (I8c) 1. The act or process of paying out;
disbursement. 2. A sum paid out.
expensae litis (ek-spen-see II-tis). [Latin] Costs or
expenses ofa lawsuit, for which a successful party is
sometimes reimbursed.
expense, n. (14c) An expenditure of money, time, labor,
or resources to accomplish a result; esp., a business
expenditure chargeable against revenue for a specific
period. Cf. COST (1). -expense, vb.
accrued expense. (1880) An expense incurred but not
yet paid.
administrative expense. See general administrative
expense.
business expense. (1858) An expense incurred to
operate and promote a business; esp., an expendi
ture made to further the business in the taxable year
in which the expense is incurred . Most business
expenses -unlike personal expenses are tax
deductible. [Cases: Internal Revenue
3377.]
capital expense. (I913) An expense made by a business
to provide a long-term benefit; a capital expenditure.
A capital expense is not deductible, but it can be
used for depreciation or amortization. [Cases: Internal
Revenue C='3319.]
capitalized expense. An amortized expense.
current expense. See operating expense.
659 experimental-use defense
deferred expense. (1925) A cost incurred by a business
when the business expects to benefit from that cost
over a period beyond the current year . An example
is a prepaid subscription to a business periodical the
cost of which will be recognized as an expense over
a multiyear subscription period. [Cases: Internal
Revenue (;:::::>3372.]
educational expense. (1882) A deductible expense
incurred either to maintain or improve an existing
job skill or to meet a legally imposed job requirement.
[Cases: Internal Revenue (;:='3357.]
entertainment expense. An expense incurred while
providing entertainment relating directly to or asso
ciated with a business purpose. Entertainment
expenses are partially tax-deductible. [Cases: Internal
Revenue C=:>3338.]
extraordinary expense. (l6c) An unusual or infre
quent expense, such as a write-off of goodwill or a
large judgment. As used in a constitutional pro
vision authoriZing a state to incur extraordinary
expenses, the term denotes an expense for the general
welfare compelled by an unforeseen condition such
as a natural disaster or war. Also termed extraor
dinary item.
fixed expense. Seefixed cost under COST.
funeral expense. (usu. pi.) (I8c) An expense necessarily
and reasonably incurred in procuring the burial, cre
mation, or other disposition of a corpse, including the
funeral or other ceremonial rite, a casket and vault,
a monument or tombstone, a burial plot and its care,
and a visitation (or wake). [Cases: Cemeteries
18; Dead Bodies C=2.]
general administrative expense. (usu. pl.) (1907) An
expense incurred in running a business, as distin
gUished from an expense incurred in manufacturing
or selling; overhead . Examples include executive
and clerical salaries, rent, utilities, and legal and
accounting services. -Also termed administrative
expense; general expense. -Abbr. G & A.
medical expense. (1853) 1. An expense for medical
treatment or healthcare, such as drug costs and
health-insurance premiums . Medical expenses are
tax-deductible to the extent that the amounts (less
insurance reimbursements) exceed a certain per
centage of adjusted gross income. [Cases: Internal
Revenue C='3366.] 2. (usu. pi.) In dvillitigation, any
one of many possible medical costs that the plaintiff
has sustained or reasonably expects to incur because
of the defendant's allegedly wrongful act, including
charges for visits to physicians' offices, medical pro
cedures, hospital bills, medicine, and recuperative
therapy needed in the past and in the future. -Often
shortened (in pI.) to medicals.
moving expense. (1903) An expense incurred in
changing one's residence . Ifincurred for business
reasons (as when one's job requires relocation), most
moving expenses are tax-deductible. [Cases: Internal
Revenue (;::::: 3367.] operating expense. (1861) An expense incurred in
running a business and producing output. -Also
termed current expense.
ordinary and necessary expense. (1826) An expense
that is normal or usual and helpful or appropriate
for the operation of a particular trade or business
and that is paid or incurred during the taxable year .
Ordinary and necessary expenses are tax-deduct
ible. -Also termed ordinary and necessary business
expense. [Cases: Internal RevenueC=3318.)
organizational expense. (1941) An expense incurred
while setting up a corporation or other entity.
out-of-pocket expense. (1905) An expense paid from
one's own funds.
prepaid expense. (1919) An expense (such as rent,
interest, or insurance) that is paid before the due date
or before a service is rendered.
travel expense. (1905) An expense (such as for meals,
lodging, and transportation) incurred while away
from home in the pursuit of a trade or business. See
TAX HOME. [Cases: Internal Revenue C=3339.]
expense loading. See LOADING.
expense ratio. Accounting. The proportion or ratio of
expenses to income.
expenses ofadministration. (18c) Expenses incurred by
a decedent's representatives in administering the estate.
[Cases: Executors and Administrators C-~108.]
expenses of receivership. (I8c) Expenses incurred by
a receiver in conducting the business, including rent
and fees incurred by the receiver's counsel and by any
master, appraiser, and auditor. [Cases: Receivers (;::;
154.]
expense stop. (1990) A lease provision establishing the
maximum expenses to be paid by the landlord, beyond
which the tenant must bear all remaining expenses.
expensilatio (ek-spen-sr-lay-shee-oh), n. [Latin] Roman
law. An entry to the debit of one party in the account
book ofanother party, esp. as part of a literal contract.
See literal contract (1) under CONTRACT. PI. expensila
tiones (ek-spen-sI-Iay-sheeoh-neez).
expensis militum non levandis (ek-spen-sis mi-lit-<lm
non l<l-van-dis). [Latin] Hist. A writ to prohibit the
sheriff from levying any allowance for knights of the
shire on persons who held lands in ancient demesne.
See ancient demesne under DEMESNE.
experience rating. Insurance. A method of determining
the amount of the premium by analyzing the insured's
loss record over time to assess (1) the risk that covered
events will occur, and (2) the amount of probable
damages if they do. [Cases: Insurance C=1542(2).)
experimental use. See USE (1).
experimental-use defense. Patents. A defense to a claim
of patent infringement raised when the construction
and use of the patented invention was for scientific
purposes only . While still recognized, this defense
is narrowly construed and today may apply only to
660 experimental-use exception
research that tests the inventor's claims. 35 USCA
271(e)(l). [Cases: Patents C:::::>260.]
experimental-use exception. Patents. An exception to
the public-use statutory bar, whereby an inventor is
allowed to make public use ofan invention for more
than one year when that use is necessary to test and
improve the invention. [Cases: Patents (;::::>75.]
expert, n. (l6c) A person who, through education or
experience, has developed skill or knowledge in a par
ticular subject, so that he or she may form an opinion
that will assist the fact-finder. Fed. R. Evid. 702. See
DAUBERT TEST. [Cases: Criminal Law (;:::::0478-480;
Evidence C-~534.5-546.] expertise (ek-spar-teez),
n.
consulting expert. (1897) An expert who, though
retained by a party, is not expected to be called as a
witness at trial. _ A consulting expert's opinions are
generally exempt from the scope of discovery. Fed.
R. Civ. P. 26(b)(4)(B). Also termed nontestifying
expert. [Cases: Federal Civil Procedure 1266;
Pretrial Procedure
impartial expert. (1870) An expert who is appointed
by the court to present an unbiased opinion. -Also
termed court-appointed expert. Fed. R. Evid. 706.
[Cases: Federal Civil Procedure (;:::::0 1951; Trial
18.]
testifying expert. (1952) An expert who is identified
by a party as a potential witness at trial. -As a part
ofinitial disclosures in federal court, a party must
provide to all other parties a wide range ofinforma
tion about a testifying expert's qualifications and
opinion, including all information that the witness
considered in forming the opinion. Fed. R. Civ. P.
26(a)(2)(b). [Cases: Federal Civil Procedure
Pretrial Procedure
expert evidence. See EVIDENCE.
expert opinion. See OPINION (3).
expert-reliance materials. Facts, documents, and other
sources that provide data or information to an expert
witness. _ Often shortened to reliance materials. [Cases:
Criminal Law C-'-J486; Evidence C:::-:>155.]
expert testimony. See expert evidence under EVIDENCE.
expert witness. See WITNESS.
expert-witness fee. See FEE (1).
ex pietate (eks pI-a-tay-tee). [Latin] Hist. From natural
affection and duty.
expilare (eks-pa-Iair-ee), vb. [Latin] Roman law. In the
law of inheritance, to spoil; to rob; to plunder. See
CRIMEN EXPILATAE HEREDITATIS.
expilatio (eks-pd-Iay-shee-oh), n. [Latin] Roman law. |
EDITATIS.
expilatio (eks-pd-Iay-shee-oh), n. [Latin] Roman law.
The offense ofunlawfully appropriating goods belong
ing to a succession . This offense was not technically
theft (furtum) because the property belonged to neither
the decedent nor an heir, since the latter had not yet
taken possession. PI. expilationes (eks-pd-lay-shee-oh
neez). -Also termed expilation. expilator (eks-pa-Iay-tar), n. [Latin] Roman law. A
robber; a spoiler or plunderer. See EXPILATlO.
expiration, n. A coming to an end; esp., a formal termi
nation on a closing date <expiration ofthe insurance
policy>. -expire, vb.
expiration date. (1803) The date on which an offer,
option, or the like ceases to exist. -Also termed expiry
date.
expiry date. See EXPIRATION DATE.
expiry of the legal. Scots law. The end of the period
during which a debtor can redeem land awarded to a
creditor by paying off the debt.
explanatory-phrase rule. Trademarks. The principle that
a senior user ofa family-name trademark is entitled to
a judicial remedy for unfair competition if the same
family name appears on competing goods or services,
the remedy being that the junior user must include on
signs, labels, and advertisements an explanation that
the company is not affiliated with the senior user's
company. _ The rule resolves two conflicting princi
ples: (1) everyone has the right to use a family name in
business, and (2) no one may use a family name in a
way that unfairly hurts someone else's business. [Cases:
Trademarks (;:::, 1526.]
explecia (ek-splee-shee-<l). [Law Latin] See EXPLETA.
explees (ek-spleez). See ESPLEES.
expleta (ek-splee-t<l), n. pl. [Law Latin] Hist. The rents and
profits ofan estate. Also termed expletia; explecia..
explicatio (eks-pld-kay-shee-oh), n. [Law Latin] Civil
law. The fourth pleading in an action, conSisting of
the plaintiff's response to the defendant's rejOinder.
_ This is the civil-law equivalent ofthe common-law
surrejoinder.
exploding adjustable-rate mortgage. See MORTGAGE.
exploitation, n. (19c) The act of taking advantage of
something; esp., the act of taking unjust advantage of
another for one's own benefit. See SEXUAL EXPLOITA
TION. -exploit, vb. exploitative, adj.
exploration manager. See LA~D MANAGER.
export, n. (17e) 1. A product or service created in one
country and transported to another.
domestic export. A product originally grown or manu
factured in the United States, as distinguished from
a product originally imported into the United States
and then exported.
2. The process of transporting products or services to
another country. Cf. IMPORT (1), (2).
export, vb. (I5c) 1. To send or carry abroad. 2. To
send, take, or carry (a good or commodity) out of the
country; to transport (merchandise) from one country
to another in the course of trade. 3. To carry out or
convey (goods) by sea.
exportation. (l7c) The act ofsending or carrying goods
and merchandise from one country to another.
Export Clause. See IMPORT-EXPORT CI.AUSE.
661 expressio unius est exclusio alterius
export declaration. (1920) A document required
by federal law -containing details of an export
shipment.
export draft. See DRAFT.
Export-Import Bank ofthe United States. A federally
chartered bank that finances the export of goods and
services by direct lending or by issuing guarantees and
insurance so that private banks can extend credit.
The bank was organized by Executive Order 6581 of2
Feb. 1934. Itbecame independent in 1945. 12 USCA
635 et seq. Often shortened to Ex-1m Bank.
export letter ofcredit. See LETTER OF CREDIT.
export quota. See QUOTA.
export tax. See TAX.
expose (ek-spoh-zay), n. [French] (1803) 1. A statement
or account; an explanation. -In diplomatic language,
the term describes a written explanation ofthe reasons
for a certain act or course ofconduct. 2. Exposure of
discreditable matter.
expositio (eks-pa-zish-ee-oh), n. [Latin] An explanation
or interpretation; an exposition.
exposition de part (eks-poh-zee-syawn da pahr).
[French] French law. The abandonment, in either a
public or a private place, ofa child that is unable to
take care ofitself.
expository jurisprudence. See JURISPRUDENCE.
expository statute. See declaratory statute under STAT
UTE.
ex post, adj. [Latin "from after"] (1937) Based on knowl
edge and fact; viewed after the fact, in hindsight; objec
tive; retrospective. Cf. EX ANTE.
expost facto (eks pohst fak-toh), adj. (18c) Done or made
after the fact; having retroactive force or effect.
expost facto, adv. [Latin"from a thing done afterward"]
(l7c) After the fact; retroactively.
Ex Post Facto Clause. (1848) One oftwo clauses in the
U.S. Constitution forbidding the enactment ofex post
facto laws. U.S. Const. art. I, 9, cl. 3; art. I, 10, cl. 1.
[Cases: Constitutional Law C=>2781-2845.]
ex post facto law. (18c) A law that impermissibly applies
retroactively, esp. in a way that negatively affects a
person's rights, as by criminalizing an action that was
legal when it was committed. -Ex post facto criminal
laws are prohibited by the U.S. Constitution. But ret
rospective civil laws may be allowed. See RETROACTIVE
LAW. [Cases: Constitutional Law C=='2781-2845.]
exposure. (17c) The amount ofliability or other risk to
which a person is subject <the client wanted to know its
exposure before it made a settlement offer>.
dangerous exposure. Maritime law. Exposure that
is reasonably foreseeable in the ordinary chances,
mistakes, or hazards ofnavigation.
exposure ofperson. See INDECENT EXPOSURE.
exposure theory. Insurance. A theory of coverage pro
viding that an insurer must cover a loss ifthe insurance was in effect when the claimant was exposed to the
product that caused the injury. Cf. MANIFESTATION
THEORY; ACTUAL-INTURY TRIGGER; TRIPLE TRIGGER.
[Cases: Insurance C-';)2265.]
express, adj. (14c) Clearly and unmistakably communi
cated; directly stated. Cf. IMPLIED. -expressly, adv.
express abandonment. See ABANDONMENT (10).
express abrogation. (1857) The repeal ofa law or provi
sion by a later one that refers directly to it; abrogation
by express provision or enactment.
express acceptance. See ACCEPTANCE (4).
express active trust. See active trust under TRUST.
express actual knowledge. See actual knowledge (1)
under KNOWLEDGE.
express agency. See AGENCY (1).
express aider. See AIDER BY SUBSEQUENT PLEADING.
express amnesty. See AMNESTY.
express assent. See ASSENT.
express assumpsit. See special assumpsit under ASSUMP
SIT.
express authority. See AUTHORITY (1).
express color. See COLOR.
express condition. See CONDITION (2).
express consent. See CONSENT (1).
express consideration. See CONSIDERATION (1).
express contract. See CONTRACT.
express covenant. See COVENANT (1).
express dedication. See DEDICATION.
express dissatisfaction. Wills & estates. A beneficiary's
contesting ofa will or objecting to anyprovision ofthe
will in a probate proceeding.
expressed, adj. (16c) Declared in direct terms; stated in
words; not left to inference or implication.
expressio falsi (ek-spres[h]-ee-oh fal-sl or fawl-sI).
[Latin] Rist. A false statement. -Such a statement
might result in rescission ofa contract. Cf. ALLEGATIO
FALSI.
expression, freedom of. See FREEDOM OF EXPRESSION.
expressio unius est exclusio alterius (ek-spres[h]-ee
oh YOO-nI-;:lS est ek-skloo-zhee-oh al-ta-rI-;:ls). [Law
Latin] A canon ofconstruction holding that to express
or include one thing implies the exclusion ofthe other,
or ofthe alternative. _ For example, the rule that "each
citiZen is entitled to vote" implies that noncitizens are
not entitled to vote. -Also termed indusio unius est
exdusio alterius; expressum fa cit cessare tacitum. Cf.
EJUSDEM GENERIS; NOSCITUR ASOCIIS; RULE OF RANK.
[Cases: Contracts C=>152; Statutes ~195.]
"Several Latin maxims masquerade as rules of interpre
tation while doing nothing more than describing results
reached by other means. The best example is probably
expressio unius est exc/usio alter-ius, which is a rather
elaborate, mysterious sounding, and anachronistic way
of describing the negative implication. Far from being a
662 expressive association, freedom of
rule, it is not even lexicographically accurate, because it is
simply not true, generally, that the mere express conferral
of a right or privilege in one kind of situation implies the
denial of the equivalent right or privilege in other kinds.
Sometimes it does and sometimes it does not, and whether
it does or does not depends on the particular circumstances
of context. Without contextual support, therefore, there is
not even a mild presumption here. Accordingly, the maxim
is at best a description, after the fact, of what the court has
discovered from context." Reed Dickerson, The Interpreta
tion and Application ofStatutes 234-35 (1975).
"The canon expressio unius est exc/usio alterius is ... based
on the assumption of legislative omniscience, because
it would make sense only if all omissions in legislative
drafting were deliberate. Although this canon seemed dead
for a while, it has been resurrected by the Supreme Court to
provide a basis for refusing to create private remedies for
certain statutory violations. Its recent disparagement by a
unanimous Court [in Herman & MacLean v. Huddleston, 459
U.s. 375, 386 n.23, 103 S.O. 683, 690 n. 23 (1983)) puts its
future in some doubt but more likely confirms that judicial
use of canons of construction is opportunistic." Richard A.
Posner, The Federal Courts: Crisis and Reform 282 (] 985).
expressive association, freedom of. See FREEDOM OF
ASSOCIATION.
expressive crime. See CRIME.
express malice. See MALICE.
express notice. See NOTICE.
express obligation. See conventional obligation under
OBLIGATION.
express permission. See PERMISSION.
express power. See enumerated power under POWER
(3).
express private passive trust. See TRUST.
express repeal. See REPEAL.
express republication. (I8c) A testator's repeating of
the acts essential to a will's valid execution, with the
avowed intent ofrepublishing the will. See REPUBLICA
TION (2). [Cases: Wills C=>197,199.]
express trust. See TRUST.
expressum facit cessare tacitum. See EXPRESSIO UNIUS
EST EXCLUSIO ALTERIUS.
express waiver. See WAIVER (1).
express warranty. See WARRANTY (2).
expromissio (eks-pr;>-mis[h]-ee-oh), n. Roman law. A
type of novation by which a creditor accepts a new
debtor in place ofa former one, who is then released.
expromissor (eks-pr;>-mis-;>r), n. Roman law. One who
assumes another's debt and becomes solely liable for it,
by a stipulation with the creditor.
expromittere (eks-pr<'l-mit-<'l-ree), vb. Roman law. To
undertake tor another with the view ofbecoming liable
in the other's place.
ex proposito (eks proh-poz-;>-toh). [Latin] Hist. Inten
tionally; by deSign.
expropriation, n. (ISc) 1. A governmental taking or
modification ofan individual's property rights, esp. by
eminent domain; CONDEMNATION (2). Also termed
(in England) compulsory purchase; (in Scotland) compulsory surrender. Cf. APPROPRIATION. [Cases:
Eminent Domain C=>2.] 2. A voluntary surrender
of rights or claims; the act of renouncing or divest
ing oneself of something previously claimed as one's
own. expropriate, vb. expropriator, n.
ex proprio motu (eks proh-pree-oh moh-tyoo). [Latin]
Ofone's own accord.
ex proprio vigore (eks proh-pree-oh vi-gor-ee). [Latin)
By their or its own force.
ex provisione hominis (eks pr<'l-vizh-ee-oh-nee hom-;>
nis). [Latin] By the provision ofman; by the limitation
of the party, as distinguished from the disposition of
the law.
ex provisione mariti (eks pr;>-vizh-ee-oh-nee m<'l-rHI or
mar |
ex provisione mariti (eks pr;>-vizh-ee-oh-nee m<'l-rHI or
mar-<'l-tI). [Latin] From the provision of the husband.
expulsion, n. (lSc) An ejectment or banishment, either
through depriving a person of a benefit or by forcibly
evicting a person. -expnlsive, adj.
expunction ofrecord. See EXPUNGEMENT OF RECORD.
expunge (ek-spanj), vb. (17c) 1. To erase or destroy <the
trustee wrongfully expunged the creditor's claim
against the debtOr>. 2. Parliamentary law. To declare
(a vote or other action) null and outside the record, so
that it is noted in the original record as expunged, and
redacted from all future copies. --Also termed rescind
and expunge; rescind and expunge from the minutes;
rescind and expunge from the record. expungement
(ek-spanj-m;>nt), expunction (ek-spangk-sh<'ln), n.
"Where it is desired not only to rescind an action but to
express very strong disapproval, legislative bodies have
voted to rescind the objectionable action and expunge
it from the record. When a record has been expunged,
the chief legislative officer should cross out the words or
draw a line around them in the original minutes and write
across them the words, 'Expunged by order of the senate
(or house),' giving the date of the order. This statement
should be signed by the chief legislative officer. The word
'expunged' must not be so blotted as not to be readable,
as otherwise it would be impossible to determine whether
more was expunged than ordered. When the minutes are
printed or published, the expunged portion is omitted."
National Conference ofState Legislatures, Mason's Manual
of Legislative Procedure 444, at 296-97 (2000).
expungement ofrecord. (1966) The removal ofa convic
tion (esp. for a first offense) from a person's criminal
record. Also termed expunction ofrecord; erasure of
record. [Cases: Criminal Law C=>1226(3).]
expurgation (ek-sp<'lr-gay-sh;m), n. (ISc) The act or
practice of purging or cleansing, as by publishing a
book without its obscene passages. expurgate (eks
par-gayt), vb. expurgator (eks-par-gay-t<'lr), n.
ex quasi contractu (eks kway-zI kan-trak-t[y]oo). [Latin]
From quasi-contract.
ex rei. abbr. [Latin ex relatione "by or on the relation
of"J (1838) On the relation or information of. A suit
ex rei. is typically brought by the government upon the
appHcation of a private party (called a relator) who is
interested in the matter. See RELATOR (1).
ex re nata (eks ree nay-t;l). [Latin] According to a case
that has arisen.
ex rights, adv. Without rights. Shares are traded ex
rights when the value ofthe subscription privilege has
been deducted, giving the purchaser no right to buy
shares of a new stock issue. -Abbr. X; XR. -Also
termed rights off.
ex-rights date. The date on which a share of common
stock no longer offers privilege subscription rights.
ex rigore juris (eks ri-gor-ee joor-is). [Latin] Accord
ing to the rigor or strictness of the law; in strictness
oflaw.
exrogare (eks-rd-gair-ee), vb. [Latin] See ABROGARE.
exrx. abbr. EXECUTRIX.
ex scriptis olim visis (eks skrip-tis oh-bm vI-zis or -sis).
[Latin "from writings formerly seen"] A method of
handwriting proof available when a witness has seen
other documents purporting to be in the party's hand
writing and either has had further correspondence with
the party about the documents' subject matter or has
had some other type ofcommunication with the party
that would lead to a reasonable presumption that the
documents were in the party's handwriting.
ex ship. Ofor referring to a shipment ofgoods for which
the liability or risk ofloss passes to the buyer once the
goods leave the ship.
ex solemnitate (eks sd-Iem-ni-tay-tee). [LatinJ Hist. On
account of its being required as a solemnity. Cf. DE
SOLEMNIT ATE.
ex statuto (eks st;l-tyoo-toh). [Latin] According to the
statute.
ex stipulatu actio (eks stip-Yd-Iay-t[y]oo ak-shee-oh).
[Latin] Roman & civi/law. An action on a stipulation;
an action given to recover marriage portions.
ex-stock dividend. Without stock dividend . The phrase
often denotes the interval between the announcement
and payment ofa stock dividend. A purchaser ofshares
during this interval is not entitled to the dividend,
which goes to the seller.
ex sua natura (eks s[y]OO-;l nd-t[y]oor-d). [Latin] Hist.
In its own nature (or character).
ex tempore (eks tem-pd-ree), adv. [Latin "out of time"]
1. By lapse oftime. 2. Without any preparation; extem
poraneously.
extend debate. Parliamentary law. To cancel or relax an
otherwise applicable limit on debate. Also termed
extend the limits of debate. See DEBATE. Cf. CLOSE
DEBATE; LIMIT DEBATE.
extended-coverage clause. Insurance. A policy provision
that insures against hazards beyond those covered (or
excluded) in the basic policy. [Cases: Insurance C:;)
2662.]
extended debate. See DEBATE.
extended family. See FAMILY. extended first mortgage. See wraparound mortgage
under MORTGAGE.
extended insurance. See INSURANCE.
extended policy. See INSURANCE POLICY.
extended-reporting-period endorsement. See TAIL
COVERAGE.
extended service contract. See extended warranty under
WARRANTY (2).
extended service warranty. See extended warranty under
WARRA!>fTY (2).
extended-term insurance. See LNSURANCE.
extended warranty. See WARRANTY (2).
extendifacias (ek-sten-dI fay-shee-ds). [Latin "you are
to cause to be executed"] See EXTENT (3).
extend the limits of debate. See EXTEND DEBATE.
extension, n. (17c) 1. The continuation of the same
contract for a specified period. Cf. RENEWAL (3). [Cases:
Contracts C=>217, 242.J 2. Patents. A continuation of
the life ofa patent for an additional statutorily allowed
period. [Cases: Patents C=> 133.] 3. Tax. A period of
additional time to file an income-tax return beyond
its due date. 4. A period of additional time to take an
action, make a decision, accept an offer, or complete a
task. [Cases: Internal RevenueC=>4474; Taxation
3539, 3688.] extend, vb.
extension agreement. (1869) An agreement provid
ing additional time for the basic agreement to be per
formed. [Cases; Contracts C=>242.]
extensive interpretation. See INTERPRETATION.
extensores (ek-sten-sor-eez), n. pl. Hist. Officers
appointed to appraise and divide or apportion land;
extenders or appraisers.
extent. Hist. 1. A seizure of property in execution of a
writ. 2. A writ issued by the Exchequer to recover a debt
owed to the Crown, under which the debtor's lands,
goods, or body could all be seized to secure payment.
Also termed writ ofextent; extent in chief 3. A writ
giving a creditor temporary possession ofthe debtor's
property (esp. land). -Also termed extendi facias.
extenta manerii (ek-sten-td ma-neer-ee-I). [Latin "the
extent of a manor] An English statute (4 Edw., St. 1)
directing the making ofa survey ofa manor and all its
appendages.
extent in aid. Hist. A writ that a Crown debtor could
obtain against a person indebted to the Crown debtor
so that the Crown debtor could satisfy the debt to the
Crown. This writ, haVing been much abused because
ofsome peculiar privileges that Crown debtors enjoyed,
was abolished in 1947 by the Crown Proceedings Act.
extent in chief. See EXTENT (2).
extenuate (ek-sten-yoo-ayt), vb. (16c) To make less
severe; to mitigate.
extenuating circumstance. See mitigating circumstance
under CIRCUMSTANCE.
extenuation 664
extenuation lek-sten-yoo-ay-sh;:m), n. The act or fact of
making the commission ofa crime or tort less severe.
extern. See CLERK (4).
external act. See ACT.
externality. (usu. pI.) (1957) A consequence or side effect
of one's economic activity, causing another to benefit
without paying or to suffer without compensation.
Also termed spillover; neighborhood effect.
negative externality. (1970) An externality that is det
rimental to another, such as water pollution created
by a nearby factory.
positive externality. (1970) An externality that benefits
another, such as the advantage received by a neigh
borhood when a homeowner attractively landscapes
the property.
external obsolescence. See economic obsolescence under
OBSOLESCENCE.
external sovereignty. See SOVEREIGNTY (3).
exterritorial. See EXTRATERRITORIAL.
exterritoriality. See EXTRATERRITORIALITY.
exterus (ek-star-as), n. [Latin] A foreigner or alien; one
born abroad.
ex testamento (eks tes-ta-men-toh), adv. [Latin] By,
from, or under a will or testament <succession ex tes
tamento is the mode ofdevolution that the property of
deceased persons ought primarily to follow>. Cf. AB
INTESTATO.
extinct, adj. (15c) 1. No longer in existence or use. 2. (Of
a debt) lacking a claimant.
extinctive fact. See divestitive fact under FACT.
extinctive prescription. See PRESCRIPTION (4).
extinguish, vb. 1. To bring to an end; to put an end to. 2.
To terminate or cancel. 3. To put out or stifle.
extiuguishment, n. (16c) The cessation or cancellation of
some right or interest. For example, the extinguish
ment of a legacy occurs when the item bequeathed
no longer exists or no longer belongs to the testator's
estate.
extinguishment of copyhold. The destruction of
copyhold by a uniting of freehold and copyhold inter
ests in the same person and in the same right. In
England, under the 1922 Law of Property Act, copy
holds were enfranchised and became either leasehold
or, more often, freehold. See COPYHOLD.
extinguishment oflegacy. See ADEMPTION.
extinguishment of lien. (1800) A lien's discharge by
operation oflaw. [Cases: Liens C==> 16.]
extirpation (ek-st;>r-pay-shan), n. (16c) 1. The act of com
pletely removing or destroying something. 2. Damage
to land intentionally done by a person who has lost the
right to the land.
extirpatione (ek-star-pay-shee-oh-nee), n. [Latin] Hist. A
writ issued either before or after judgment to restrain
a person from maliciously damaging any house or extirpating any trees on land that the person had lost
the right to possess.
extort, vb. (I5c) 1. To compel or coerce (a confession,
etc.) by means that overcome one's power to resist. 2.
To gain by wrongful methods; to obtain in an unlawful
manner; to exact wrongfully by threat or intimida
tion. extortive, adj.
extortion, n. (14c) 1. The offense committed by a public
official who illegally obtains property under the color of
office; esp., an official's collection ofan unlawful fee.
Also termed common-law extortion. [Cases: Extortion
and Threats 1.]
"The dividing line between bribery and extortion is
shadowy. If one other than the officer corruptly takes the
initiative and offers what he knows is not an authorized
fee, it is bribery and not extortion. On the other hand, if the
officer corruptly makes an unlawful demand which is paid
by one who does not realize it is not the fee authorized
for the service rendered, it is extortion and not bribery.
In theory it would seem possible for an officer to extort
a bribe under such circumstances that he would be guilty
of either offense whereas the outraged citizen would be
excused." Rollin M. Perkins & Ronald N. Boyce, Criminal
Law 538 (3d ed. 1982).
2. The act or practice ofobtaining something or com
pelling some action by illegal means, as by force or
coercion. Also termed statutory extortion. [Cases:
Extortion and Threats C==>25.1.] -extortionate, adj.
"The distinction traditionally drawn between robbery by
intimidation and blackmail or extortion is that a person
commits robbery when he threatens to do immediate
bodily harm, whereas he commits blackmail or extortion
when he threatens to do bodily harm in the future." James
Lindgren, "Blackmail and Extortion," in 1 Encyclopedia of
Crime and Justice 115, 115 (Sanford H. Kadish ed., 1983).
extortionate credit transaction. See LOANSHARKING.
extra (ek-stra), prep. [Latin] (1852) Beyond; except |
See LOANSHARKING.
extra (ek-stra), prep. [Latin] (1852) Beyond; except;
without; out of; additional.
extra allowance. In New York practice, a sum in addition
to costs that may, in the court's discretion, be awarded
to the successful party in an unusually difficult case.
See ALLOWANCE (5). [Cases: Costs C==> 164(3).]
extra commerdum (eks-tra ka-mar-shee-dm). [Latin]
Outside commerce . This phrase was used in Roman
and civil law to describe property dedicated to public
use and not subject to private ownership.
extract (ek-strakt), n. 1. A portion or segment, as of a
writing. 2. Scots law. See ESTREAT.
extract (ek-strakt), vb. To draw out or forth; to pull out
from a fixed position.
extracta curiae (ek-strak-ta kyoor-ee-ee). Hist. The
issues or profits of holding a court, arising from cus
tomary dues, fees, and amercements.
extraction. Intellectual property. The transfer of data
from a database from the server where the database
resides to a different computer or medium.
'''Extraction' is something of a misnomer, given that the
extracted contents will remain on the original database,
and are accordingly copied from, not removed from, it. It is
also somewhat Illogical that the contents must be removed
to another medium. Removal to the same medium should
also constitute extraction," Ingrid Winternitz, Electronic
Publishing Agreements 28 (2000).
extra curtem domini (eks-tr;l k3r-tem dom-;l-m). [Law
Latin) Hist. Beyond the domain of the superior. _ A
vassal was not usu. required to perform a service (such as
transporting grain) beyond the superior's jurisdiction.
extradite (ek-str;l-dIt), vb. (1864) 1. To surrender or
deliver (a fugitive) to another jurisdiction. [Cases:
Extradition and Detainers (;::::;4, 23.] 2. To obtain the
surrender of (a fugitive) from another jurisdiction.
extradition (ek-str;l-dish-"m). (18c) The official surrender
of an alleged criminal by one state or nation to another
haVing jurisdiction over the crime charged; the return ofa
fugitive from justice, regardless of consent, by the author
1tes where the fugitive is found. Cf. RENDITION (2).
international extradition. Extradition in response to
a demand made by the executive of one nation on
the executive ofanother nation. _ 1his procedure is
generally regulated by treaties. [Cases: Extradition
and Detainers (;::::; 1-20.]
interstate extradition. Extradition in response to
a demand made by the governor of one state on
the governor of another state. _ This procedure is
provided for by the U.S. Constitution, by federal
statute, and bv state statutes. [Cases: Extradition and
Detainers 021-42.]
Extradition Clause. (1878) The clause of the u.s. Con
stitution providing that any accused person who flees
to another state must, on request of the executive
authority ofthe state where the crime was committed,
be returned to that state. U.S. Const. art. IV, 2, d. 2.
[Cases: Extradition and Detainers
extradition treaty. (1847) A treaty governing the precon
ditions for, and exceptions to, the surrender ofa fugitive
from justice by the country where the fugitive is found
to another country claiming criminal jurisdiction over
the fugitive. [Cases: Extradition and Detainers
extradition warrant. See WARRANT (1).
extra dividend. See extraordinary dividend under DIVI
DEND.
extradotal property. See PROPERTY.
extra-elements test. Intellectual property. A judicial
test for determining whether a state-law claim is pre
empted by federal intellectual-property statutes under
the Sears-Compco doctrine, the criterion being that if
the claim requires proof ofan extra element that makes
the action qualitatively different from an infringement
action based on federal law, the state action is not pre
empted. [Cases: States C== 18.84.]
extra familiam (eks-tr;l f<)-mil-ee-;lm). [Latin] Hist.
Outside the family. -The phrase appeared in refer
ence to the status of a child after forisfamiliation. Cf.
INTRA FAMILIAM.
extra feodum (eks-trCl fee-;l-dam). [Latin] Out ofhis fee;
out of the seigniory. extrahazardous, ad}. (1831) Especially or unusually dan
gerous. -This term is often applied to exceptionally
dangerous railroad crossings. -Also termed ultrahaz
ardous. [Cases: Railroads (,=303-314.]
extrahazardous activity. See ABNORMALLY DANGEROUS
ACTIVITY.
extrahura (ek-str3-hyoor-a), n. [Law Latin] Hist. An
animal that wanders about or strays without its owner;
ESTRAY.
extrajudicial, adj. (l7c) Outside court; outside the
functioning ofthe court system <extrajudicial confes
sions>. Also termed out-oj-court.
extrajudicial admission. See ADMISSION (1).
extrajudicial confession. See CONFESSION.
extrajudicial enforcement. See SELF-HELP.
extrajudicial evidence. See EVIDENCE.
extrajudicial oath. See OATH.
extrajudicial opinion. See OPINION (1).
extrajudicial remedy. See REMEDY.
extrajudicial statement. (1838) Any utterance made
outside of court. -It is usu. treated as hearsay under
the rules ofevidence. [Cases: Criminal Law (;:':419.]
extra judicium (ek-str;l joo-dish-ee-;lm). [Latin] Extra-
judicial; out ofcourt; beyond the jurisdiction.
extra jus (ek-stra j3S). [Latin] Beyond the law; more than
the law requires.
extralateral right. See APEX RGLE.
extralegal, adj. (l7c) Beyond the province oflaw.
extra legem (ek-str;llee-j;lm). [Latin] Out ofthe law; out
of the protection of the law.
extramural powers (ek-str;l-myuur-;ll). Powers exercised
by a municipality outside its corporate limits. [Cases:
MuniCipal Corporations C=::~57.J
extranational, adj. Beyond the territorial and governing
limits of a country.
extraneous (ek-stray-nee-;ls), adj. See EXTRINSIC.
extraneous evidence. See extrinsic evidence (1) under
EVIDEKCE.
extraneous offense. See OFFENSE (1).
extraneous question. (1808) A question that is beyond
or beside the point to be decided.
extraneus (ek-stray-nee-as), n. & adj. [Latin "outside"]
1. Hist. A person who is foreign-born; a foreigner.
2. Roman law. An heir not born in the family of the
testator; a citizen of a foreign state.
extraordinary average. See AVERAGE.
extraordinary care. See great care under CARE.
extraordinary circumstances. See CIRCUMSTANCE.
extraordinary danger. See extraordinary hazard_under
HAZARD (1).
extraordinary diligence. See DILIGENCE.
extraordinary dividend. See DIVIDEND.
666 extraordinary expense
extraordinary expense. See EXPENSE.
extraordinary flood. A flood whose occurrence is not
predictable and whose magnitude and destructiveness
could not have been anticipated or provided against by
the exercise of ordinary foresight; a flood so unusual
that a person of ordinary prudence and experience
could not have foreseen it. See ACT OF GOD.
extraordinary gain. See GAIN (3).
extraordinary grand jury. See special grarld jury under
GRAND JURY.
extraordinary hazard. See HAZARD (1).
extraordinary item. See extraordinary expense under
EXPENSE.
extraordinary loss. See LOSS.
extraordinary majority. See supermajority under
MAJORITY.
extraordinary relief. See RELIEF.
extraordinary remedy. See REMEDY.
extraordinary rendition. See RENDITION.
extraordiuary repair. (1828) As used in a lease, a repair
that is made necessary by some unusual or unfore
seen occurrence that does not destroy the building but
merely renders it less suited to its intended use; a repair
that is beyond the usual, customary, or regular kind.
[Cases: Landlord and Tenant 150(l), 152(4).]
extraordinary risk. See extraordinary hazard under
HAZARD (1).
extraordinary session. See special session under SESSION (I).
extraordinary writ. See WRIT.
extraparochial (ek-str~-Pd-roh-kee-~l), ad). Out of a
parish; not within the bounds or limits of any parish.
extra paternam jamiliam (eks-trd pd-tar-ndm f~-mil
ee-dm). [Law Latin) Hist. Outside the father's family.
Cf. INTRA PATERNAM FAMILIAM.
extrapolate (ek-strap-d-Iayt), vb. (19c) 1. To estimate an
unknown value or quantity on the basis of the known
range, esp. by statistical methods. 2. To deduce an
unknown legal principle from a known case. 3. To
speculate about possible results, based on known
facts. -extrapolative (-lay-tiv or -Id-tiv), extrapola
tory (-ld-tor-ee), adj. extrapolator (-Iay-tdr), n.
extrapolation (ek-strap-a-Iay-shdn), n. (19c) 1. The
process of estimating an unknown value or quantity
on the basis of the known range of variables. 2. The
process by which a court deduces a legal principle
from another case. 3. The process ofspeculating about
possible results, based on known facts.
extra praesentiam mariti (eks-trd pri-zen-shee-dm
ma-rI-tI or mar-a-tIl. [Latin) Out of her husband's
presence.
extra quattuor maria (eks-trd kwah-too-ar mar-ee-d).
[Latin] Beyond the four seas; out of the kingdom of
England. _ 1be reference is to the seas surrounding
Great Britain. The phrase was traditionally used when explaining a husband's impossibility ofaccess to his
wife at the time of conception.
extra regnum Ceks-trd reg-ndm). [Latin] Out of the
realm.
extras. Construction law. Contractual amendments in
the nature ofadditions that were not originally part of
the contract, requested by an owner of a building under
construction. Cf. CHANGE ORDER (1). [Cases: Contracts
extra session. See special session under SESSION (1).
extraterritorial, ad). (19c) Beyond the geographic limits
of a particular jurisdiction. -Also termed exterrito
rial. [Cases: Courts C=>29.]
extraterritoriality. (l9c) The freedom of diplomats,
foreign ministers, and royalty from the jurisdiction of
the country in which they temporarily reside. -Also
termed exterritoriality. See diplomatic immunity under
IMMUNITY (1).
extraterritorial jurisdiction. See JURISDICTION.
extraterritorial recognition ofrights. See private inter
national law under INTERNATIONAL LAW.
extra territorium (eks-trd ter-d-tor-ee-dm). [Latin]
Beyond or outside the territory.
Extravagantes (ek-strav-d-gan-teez), n. pl. [Law Latin
"wanderings"] Eccles. law. Papal constitutions and
decretal epistles of Pope John xxn and certain of his
successors. These epistles were so called because they
were not digested or arranged with the other papal
decretals, but appeared detached from canon law.
Ihe term remained even after the epistles were later
included in the body ofcanon law.
extra viam (eks-tra vI-dm). [Latin "out of the way"] A
plaintiff's responsive pleading in a trespass action,
asserting that the defendant's claim of a right-of-way
across the plaintiff's land is not a defense to the action
because the defendant strayed from the supposed right
of-way. [Cases: Trespass C=>42.]
extra vires (eks-trd VI-reez orveer-eez). See ULTRA VIRES.
extra work. See WORK (1).
extreme cruelty. See CRUELTY.
extreme force. See deadlyforce under FORCE.
extrinsic, adj. (I7c) From outside sources; ofor relating
to outside matters. -Also termed extraneous.
extrinsic ambiguity. See latent ambiguity under AMBI
GUITY.
extrinsic evidence. See EVIDENCE.
extrinsic fraud. See FRAUD.
extrinsic test. Copyright. A test for determining whether
two ideas or works are substantially similar by listing
and analyzing like and unlike elements . The test may
be applied and decided by the trier oflaw rather than
the trier of fact. Cf. INTRINSIC TEST.
ex turpi causa (eks t;)r-pI kaw-zd). [Latin] From an
immoral consideration . This phrase, a shortened form
of the maxim ex turpi causa non oritur actio ("from
an immoral consideration an action does not arise"),
expresses the principle that a party does not have a right
to enforce performance of an agreement founded on
a consideration that is contrary to the public interest.
[Cases: Action <:;=04; Contracts C='138(1).]
'The doctrine ex turpi causa has made its way into the law
as an extension of a moral principle. If it is misused, the
principle suffers. Moreover, its misuse is a symptom of a
disease of thought that debilitates the law and morals. This
is the failure to recognize that there is a fundamental differ,
ence between the law that expresses a moral principle and
the law that is only a social |
failure to recognize that there is a fundamental differ,
ence between the law that expresses a moral principle and
the law that is only a social regulation. If only in the growth
of English law that distinction had been maintained, much
of the arbitrariness and the absurdities in the cases I have
cited would have been avoided. There is a dictum of Lord
Wright's which may some day be used as a foundation for
a change of heart. Speaking of the maxim ex turpi causa,
he said: 'In these days there are many statutory offences
which are the subject of the criminal law and in that sense
are crimes, but which would, it seems, afford no moral
justification for a court to apply the maxim'. Beresford v.
Royal Insurance (1937),2 KB. at 220." Patrick Devlin, The
Enforcement ofMorals 60 (1968).
exuere patriam (eg-z[y]oo-a-ree pay-tree-am), vb. [Latin]
To renounce one's country or native allegiance; to expa
triate oneself.
exulare (eks-[y]a-lair-ee), vb. [Latin] Hist. To exile or
banish.
ex una parte (eks [y]oo-na pahr-tee). [Latinj Ofone part
or side; on one side.
exuperare (eg-z[y]oo-pJ-rair-ee), vb. [Latin] To
overcome; to apprehend or take.
ex utraque parte (eks yoo-tray-kwee pahr-tee). [Latin]
On both sides.
ex utr;usque parentibus conjunct; (eks yoo-tree-3s-kwee
pa-ren-ti-bas km-j3ngk-tI). [Latin] Related on the side
ofboth parents; of the whole blood.
ex vi aut metu (eks VI awt mee-t[y]oo). [Latin] Hist. On
the ground of force or fear. -The phrase appeared in
reference to a basis for rescinding a transaction.
ex visceribus (eks vi-ser-a-bas). [Latin "from the
bowels"] From the vital part; from the very essence of
(a thing).
ex visceribus verborum (eks vi-ser-J-bas vJr-bor-;)m).
[Latin] From the mere words (and nothing else); from
the words themselves.
ex visitatione Dei (eks viz-a-tay-shee-oh-nee dee-I).
[Latin] L By the dispensation of God; by reason of
physical incapacity. -Anciently, when a prisoner who
was being arraigned stood silently instead ofpleading,
a jury was impaneled to inquire whether the prisoner
obstinately stood mute or was dumb ex visitatione Dei.
2. By natural causes as opposed to violent ones. _ This
phrase sometimes appears in a coroner's report when
death results from a disease or another natural cause. ex visuscriptionis (eks VI-S[y]oo [or -z[y]oo] skrip-shee
oh-nis). [Latin] From the sight of the writing; from
having seen a person write. -This phrase describes a
method of proving handwriting.
ex vi termini (eks VI tar-ma-llI). [Law Latin] From or
by the force of the term; from the very meaning of the
expression used.
ex voluntate (eks vol-an-tay-tee). [Latin] Voluntarily;
from free will or choice.
EXW. abbr. EX WORKS.
exwarrants, adJ!. Without warrants. _ Shares are traded
ex warrants when they no longer carry the right to
receive declared warrants that have been distributed
to holders. -Abbr. X; xw.
ex works. From the factory. -This trade term defines
the obligations of a buyer and a seller of goods with
respect to delivery, payment, and risk of loss. The
seller's delivery is complete (and the risk ofloss passes
to the buyer) when the goods are made available to the
buyer at a location ofthe seller's choice without requir
ing a collecting vehicle to be loaded, as at the seller's
showroom, factory, or warehouse. Abbr. EXW.
ex-works price. See PRICE.
eyde (ayd), n. [Law French] Aid; assistance; relief; subSidy.
eye for an eye. See LEX TALIONIS.
eye of the law. (l6c) The law as a personified thinker;
legal contemplation <dead people are no longer persons
in the eye of the law>.
eyewitness. (16c) One who personally observes an event.
Cf. EARWITNESS.
eyewitness identification. (I939) A naming or descrip
tion by which one who has seen an event testifies from
memory about the person or persons involved.
eygne (ayn), n. See EIGNE.
eyre (air). [Old French eire "journey, march"] 02c) Hist.
A system ofroyal courts sent out into the counties by the
Crown to investigate allegations ofwrongdOing, to try
cases, and to raise revenue for the Crown through the
levy of fines. -The eyre system was abolished in the 13th
century. See ARTICLES OF THE EYRE; JUSTICE IN EYRE.
'In 1176 the itinerant justices were organised into six
circuits .... The justices assigned to these circuits, who
numbered as many as twenty or thirty at a time in the
1180s, were known as justiciae errantes (later justidarU in
itinere, justices in eyre); and the French word 'eyre' became
the name of one of the most prominent forms of royal
justice until the time of Edward III. Every so often a 'general
eyre' would visit a county, bringing the kiog's government
with it.... The general eyre, were not merely law courts;
they were a way of supervising local government through
itinerant central government." J.H. Baker, An Introduction
to English Legal History 19 (3d ed. 1990)
eyrer (air-ar), vb. [Law French] (12c) Hist. To travel or
journey; to go about.
F
F. 1. abbr. The first series of the Federal Reporter, which
includes federal decisions (trial and appellate) from
1880 to 1924.2. Hist. A letter branded on a felon who
claimed benefit of clergy so that the felon could claim
the benefit only once . Additionally, those convicted
for an affray (fray) or falsity were so branded.
"He that shall maliciously strike any person with a Weapon
in Church or Churchyard. or draw any Weapon there with
intent to strike, shall have one of his Ears cut off; and, if
he have no Ears, then shall be marked on the Cheek with a
hot Iron, having the Letter F, whereby he may be known for
a Fray-maker or Fighter." Thomas Blount, Noma-Lexicon: A
Law-Dictionary (1670).
"F, Is a Letter wherewith Feions, &c. are branded and
marked with an hot Iron, on their being admitted to the
Benefit of Clergy." Giles Jacob, A New Law-Dictionary (8th
ed. 1762).
F.2d. abbr. The second series of the Federal Reporter,
which includes federal appellate decisions from 1924
to 1993.
F.3d. abbr. 'llie third series ofthe Federal Reporter, which
includes federal appellate decisions from 1993.
FAA. abbr. 1. FEDERAL AVIATION ADMINISTRATION. 2.
FEDERAL ARBITRATION ACT. 3. FREE OF ALL AVERAGE.
fabricare (fab-rd-kair-ee), vb. [Law Latin "to make"] Hist.
1. To make a coin lawfully or unlawfully, 2. To forge,
esp. a bill oflading. The term sometimes appeared in
indictments:fabricavit et contrafecit ("[he] forged and
counterfeited ").
fabricate, vb. (15c) To invent, forge, or devise falsely . To
fabricate a story is to create a plaUSible version ofevents
that is advantageous to the person relating those events.
The term is softer than lie. See LIE (1).
fabricated evidence. See EVIDENCE.
fabricated fact. See fabricated evidence under
EVIDENCE.
fabric land. See LAND.
fabula (fab-Yd-Id). [Law Latin] Hist. A contract or
covenant, esp. a nuptial contract.
FAC. abbr. Failure to answer a (traffic) citation . In some
jurisdictions, ifsomeone fails to respond after receiving
a ticket, the court notifies the relevant administrative
agency, which records this information and suspends
the defendant's driver's license until the FAC is vacated
and any fines or fees are paid.
FACE. abbr. FREEDOM OF ACCESS TO CLINIC ENTRANCES
ACT.
face, n. (Be) 1. The surface of anything, esp. the front,
upper, or outer part <the face ofa clock>. 2. Byexten
sion, the apparent or explicit part ofa writing or record
<the fraud must appear on the face of the record>.
3. The inscribed side of a document, instrument, or judgment <although the contract appeared valid on
its face, the buyer did not have the legal capacity to
enter into it>.
face amount. 1. PAR VALUE. 2. Insurance. The amount
payable under an insurance policy. -Also termed face
value;face amount insured by the policy;face ofpolicy.
[Cases: Insurance (;:::>2037.]
face-amount certificate. See STOCK CERTIFICATE (1).
face-amount certificate company. See COMPANY.
face-amount certificate ofthe installment type. Seeface-
amount certificate (1) under STOCK CERTIFICATE (1).
face amount insured by the policy. See FACE AMOUNT.
face of policy. See FACE AMOUNT.
face rate. See nominal rate under INTEREST RATE.
face value. 1. FACE AMOUNT. 2. PAR VALUE.
facial, adj. (19c) Apparent; of or relating to the face of
things; prima facie <a facial challenge to the statute>.
facial attack. (1966) A challenge to the sufficiency of
a complaint, such as a motion to dismiss in federal
practice. [Cases: Federal Civil Procedure (;:::> 1742(1);
Federal Courts ~32.]
facial challenge. See CHALLENGE (1).
facially sufficient, adj, (1972) (Of a document) appearing
valid on its face . A search-warrant affidavit's facial
sufficiency will not protect it from attack ifthe affidavit
is based on false testimony by the officer making the
affidavit. See FRANKS HEARING.
facially void. See VOID.
facias (fay-shee-<Js). [Law Latin] That you cause . Facias
is used in writs as an emphatic word. See FIERI FACIAS;
LEVARI FACIAS; SCIRE FACIAS. It also appears in the
phrase ut facias ("so that you do"). See DO UT FACIAS;
FACIO UT DES; FACIO UT FACIAS.
facies (fay-shee-eez). (17c) [Latin] The outward appear
ance or surface of a thing.
fadle (jas-dl), ad). (l6c) Scots law. (Of a mentally deficient
person) so susceptible to outside influence as to need
legal protection (such as a guardian).
facilitate, vb. (17c) Criminal law. To make the commis
sion of a crime easier. Property (such as a vehicle
or home) that facilitates the commission of certain
offenses may be forfeited. -facilitator, n.
facilitated negotiation. See MEDIATION,
facilitation, n. (l7c) 1. The act or an instance of aiding
or helping; esp., in criminal law, the act of making it
easier for another person to commit a crime. 2. CON
CILIATION.
669
facility and circumvention. Scots law. Conduct intended
to persuade a person vulnerable to outside influence
to act against his or her own interest. Any contract
brought under conditions offacility and circumvention
would be void. ~. Sometimes shortened to facility.
facility-of-paymentdause. 1. Insurance. An insurance
policy provision allowing the appointment ofa person
to receive payment from the insurer on the beneficiary's
behalf. [Cases: Insurance (:;::;J3468.] 2. Trusts. A trust
provision that allows anyone who owes money to an
incapacitated trust beneficiary to discharge the debt by
paying the money owed to the custodial trustee.
facio ut des (fay-shee-oh <It deez). [Latin "I do so that you
give"] Civil law. 1. An innominate contract in which
a person agrees to do something for recompense. See
innominate contract under CONTRACT. 2. The consid
eration in such a contract.
facio utfacias (fay-shee-oh <It fay-shee-<ls). [Latin "I do
that you may do"] Civil law. 1. An innominate contract
in which a person agrees to do something for another
person who agrees to do something in return, such as
an agreement to marry. 2. The consideration in such a
contract. See innominate contract under CO~TRACT.
"These valuable considerations are divided by the civilians
into four species .... The second species is, facio, ut facias:
as when I agree with a man to do his work for him, if he will
do mine for me; or if two persons agree to marry together;
or to do any positive acts on both sides. Or, it may be to
forbear on one side in consideration of something done on
the other; as, that in consideration A, the tenant, will repair
his house, B, the landlord, will not sue him for waste." 2
William Blackstone, Commentaries on the Laws of England
444 (1766).
facsimile (fak-sim-<l-lee). (17c) 1. An exact copy. 2.
FAX.
facsimile signature. See SIGNATURE.
facsimile transmission. |
An exact copy. 2.
FAX.
facsimile signature. See SIGNATURE.
facsimile transmission.!. See FAX (l). 2. See FAX (3).
fact. (15c) 1. Something that actually exists; an aspect
of reality <it is a fact that all people are mortal>.
Facts include not just tangible things, actual occur
rences, and relationships, but also states of mind such
as intentions and opinions. 2. An actual or alleged
event or circumstance, as distinguished from its legal
effect, consequence, or interpretation <the jury made
a finding of fact>. 3. An evil deed; a crime <an acces
sory after the fact>.
"A fact is any act or condition of things, assumed (for the
moment) as happening or existing." John H. Wigmore, A
Students' Textbook ofthe Law of Evidence 7 (1935).
ablative fact. See divestitive fact.
adjudicative fact (<I-joo-di-kay-tiv or -k"'-tiv). (1959)
A controlling or operative fact, rather than a back
ground fact; a fact that concerns the parties to a
judicial or administrative proceeding and that helps
the court or agency determine how the law applies
to those parties. For example, adjudicative facts
include those that the jury weighs. Cf. legislative
fact. [Cases: Administrative Law and Procedure
442.] fact
alienative fact (ay-lee-a-nay-tiv or ay-Iee-a-na-tiv). A
fact that divests a person of a right by transferring it
to another.
ancient fact. A fact about a person, thing, or event that
existed or occurred a very long time ago, and about
which no living person has firsthand knowledge.
Also termed fact in pais.
collateral fact. A fact not directly connected to the
issue in dispute, esp. because it involves a different
transaction from the one at issue. [Cases: Evidence
collative fact. See investitive fact.
denotative fact (dee-noh-tay-tiv or di-noh-t<l-tiv). A
fact relevant to the use of a nonlegal term in a legal
rule.
destitutive fact. See divestitive fact.
dispositive fact (dis-poz-<l-tiv). (1946) 1. A fact that
confers rights or causes the loss of rights. A dis
positive fact may be either an investitive or a divesti
tive fact. Also termed vestitive fact (ves-ta-tiV). 2.
A fact that is decisive of a legal matter; evidence that
definitively resolves a legal issue or controversy. See
DISPOSITION.
divestitive fact (di-ves-t<l-tiv or dI-). (1973) A fact that
causes the loss ofrights; an act or event modifying or
extinguishing a legal relation. -Also termed extinc
tive fact; destitutive fact; ablative fact.
elemental fact. See ultimate fact.
evaluative fact. (1986) A fact used to assess an action
as being reasonable or negligent.
evidentiary fact (ev-i-den-sha-ree) (1855) 1. A fact
that is necessary for or leads to the determination of
an ultimate fact. Also termed predicate fact. 2. A
fact that furnishes evidence of the existence of some
other fact. Also termed evidential fact. 3. See fact
in evidence.
exonerative fact (eg-zon-<lr-<l-tiv or -ay-tiv). (1980) A
divestitive fact that extinguishes a duty.
extinctive fact. See divestitive fact.
fabricated fact. See fabricated evidence under
EVIDENCE.
fact in evidence. (l8c) A fact that a tribunal considers
in reaching a conclusion; a fact that has been admitted
into evidence in a trial or hearing. -Also written
fact-in-evidence. Also termed evidentiary fact.
"A {actinevidence, or, briefly, evidence, signifies any facts
considered by the tribunal as data to persuade them to
reach a reasoned belief upon a probandum. This process of
thought by which the tribunal reasons from fact to proban
dum is termed inference." John H. Wigmore, A Students'
Textbook of the Law of Evidence 7 (1935).
fact itt issue. (usu. pl.) (17c) 1. Hist. A fact that one party
alleges and that the other controverts. 2. A fact to
be determined by a fact-finder; PROBANDUM. -Also
written fact-in-issue. Also termed principal fact.
"A factinissue is a fact as to the correctness of which the
tribunal, under the law of the case, must be persuaded; the
fact 670
term 'probandum' (thing to be proved) will here be used as
the convenient single word." John H. Wigmore, A Students'
Textbook of the Law of Evidence 7 (1935).
fact in pais. See ancient fact.
fact material to risk. Insurance. A fact that may
increase the risk and that, ifdisclosed, might induce
the insurer either to decline to insure or to require a
higher premium. [Cases: Insurance (;:::>2958, 2963.]
foundational fact. See predicate fact.
immaterial fact. A fact that is not relevant to a matter
in issue.
impositive fact. An investitive fact that imposes
duties.
inferential fact. (1858) A fact established by conclusions
drawn from other evidence rather than from direct
testimony or evidence; a fact derived logically from
other facts. [Cases: Criminal Law (;::::'0559; Evidence
investitive fact (in-ves-t;Hiv). (1939) A fact that confers
rights. -Also termed coilative fact (b-Iay-tiv).
judicial fact. (1862) See judicially noticed fact.
judicially noticed fact. A fact that is not established by
admissible evidence but may be accepted by the court
because the fact is generally known within the trial
court's territorial jurisdiction, or because its validity
can be determined from sources whose accuracy
cannot be reasonably questioned. See Fed. R. Evid.
20l(b). Also termed judicial fact. See JUDICIAL
NOTICE. [Cases: Criminal Law (;:::>304; Evidence
(;:::>1.]
jurisdictional fact. (usu. pl.) (1837) A fact that must
exist for a court to properly exercise its jurisdiction
over a case, party, or thing_ See JURISDICTIONAL-FACT
DOCTRINE.
legal fact. (18c) A fact that triggers a particular legal
consequence.
legislative fact. (1828) A fact that explains a particu
lar law's rationality and that helps a court or agency
determine the law's content and application. Leg
islative facts are not ordinarily specific to the parties
in a proceeding. Cf. adjudicative fact.
"[L]egislative fact includes matters needed to construe
statutes or regulations, and factual assumptions a court
makes when called upon to 'legislate.' Examples of the
latter might include the fact that spouses will communicate
less if they are not granted a privilege covering their confi
dences, or that marital harmony will be strained if spouses
can be compelled to testify against each other -facts
which might be useful in helping a court decide whether
to create or continue a common-law marital privilege ....
Obviously, legislative facts ofthis nature do not and cannot
meet the indisputability criterion of the Rule [Fed. R. Evid.
201], nor are they required to." Paul F. Rothstein, The
Federal Rules ofEvidence 35-36 (3d ed. 2003).
material fact. (1848) A fact that is significant or essen
tial to the issue or matter at hand. [Cases: Evidence
(;:::> 143; Federal Civil Procedure C:~2470.1; Judgment
(;:::> 181(2).]
minorfact. A subordinate fact or circumstance. operative fact. (1857) I. A fact that affects an existing
legal relation, esp. a legal claim . When applying the
hearsay rule, this term distinguishes between out-of
court statements that are operative facts (e.g., a party's
saying "I agree to reimburse you" in a case for breach
of oral contract), and hearsay, out-of-court statements
that only relate to operative facts (e.g., "Joel told me
Mike said he would reimburse me"). [Cases: Evidence
(;:::>267.]2. A fact that constitutes the transaction or
event on which a claim or defense is based.
physicalfact. (1857) A fact having a physical existence,
such as a fingerprint left at a crime scene.
predicate fact (pred-J-kit). (1899) 1. A fact from which
a presumption or inference arises. [Cases: Criminal
Law (;:::>305.1; Evidence (;:::>53.] 2. A fact necessary to
the operation of an evidentiary rule . For example,
there must actually be a conspiracy for the co-con
spirator exception to the hearsay rule to apply. -Also
termed foundational fact; evidentiary fact. [Cases:
Evidence <8"=>53.]
presumed fact. A fact whose existence can be justifiably
inferred from facts established by evidence. [Cases:
Criminal Law (;:::>305; Evidence (;:::>53.]
primary fact. (18c) A fact that can be established by
direct testimony and from which inferences are made
leading to ultimate facts. See ultimate fact.
principal fact. 1. See fact in issue. 2. See ultimate fact.
private fact. (I6c) A fact that has not been made public.
Whether a fact is private often arises in invasion
of-privacy claims. Cf. public fact.
probative fact (proh-bJ-tiv). (1858) A fact in evidence
used to prove an ultimate fact, such as skid marks
used to show speed as a predicate to a finding ofneg
ligence.
psychologicalfact. A fact that is related to mental state,
such as motive or knowledge.
public fact. (1955) For the purpose of an invasion-of
privacy claim, a fact that is in a public record or in
the public domain. Cf. private fact. [Cases: Torts
357.]
relative fact. A fact incidental to another fact; a minor
fact.
simulated fact. (1943) A fabricated fact intended to
mislead; a lie.
translative fact (trans-or tranz-Iay-tiv). A fact by
means ofwhich a right is transferred from one person
to another; a fact that fulfills the double function of
terminating one person's right to an object and of
originating another's right to it.
transvestitive fact. A fact that is simultaneously inves
titive and divestitive.
"When a person transfers the rights he has to another, the
transfer divests him ofthe potestas, and invests that other
with it. This is quite distinct from the creation or extinction
of the potestas. A new descriptive term is wanted, and after
the analogy of the other words, 'transvestitive' has been
coined for the purpose." W.A. Hunter, A Systematic and
Historical Exposirion ofRoman Law 141 (4th ed. 1902).
671
ultimate fact. (18c) A fact essential to the claim or
the defense. -Also termed elemental fact; principal
fact.
undisputed fact. (18c) An uncontested or admitted
fact.
vestitive fact. See dispositive fact (1).
facta (fak-t;l). [LatinJ pl. FACTUM.
fact-finder. (1926) One or more persons -such as jurors
in a trial or administrative-law judges in a hearing
who hear testimony and review evidence to rule on a
factual issue. -Also termed finder offactifact-trier or
trier offact (in a judicial proceeding); fact-finding board
(for a group or committee). See FINDING OF FACT.
fact-finding. (1909) 1. The process oftaking evidence to
determine the truth about a disputed point of fact. 2.
Int'llaw. The gathering ofinformation for purposes of
international relations, including the peaceful settle
ment of disputes and the supervision of international
agreements. _ Examples offact-finding include legis
lative tours to acquire information needed for making
decisions at an international leveL -Also termed
inquiry.
"[F]act-finding must be as impartial and as fair to the
parties as procedural and evidentiary rules can render it
without making the inquiry's task impossible, not merely
for ethical reasons, but in order to maximize the credibility
and impact of the facts found. To this end, fact-finders
must develop procedures that sharply distinguish them
from those bodies that assemble prosecutorial evidence."
Thomas M. Franck &. H. Scott Fairley, Procedural Due Process
in Human Rights Fact-Finding by International Agencies, 74
Am. j. Int'l L. 308, 310 (1980).
3. A method ofalternative dispute resolution in which
an impartial third party determines and studies the
facts and positions of disputing parties that have
reached an impasse, with a view toward clarifying
the issues and helping the parties work through their
dispute.
fact-finding board. See FACT-FINDER.
fact interrogatory. See identification interrogatory under
INTERROGATORY.
faction. (16c) A number of citizens, whether a majority or
a minority, who are united and motivated by a common
impulse or interest that is adverse to the rights ofothers
or to the permanent or aggregate interests ofthe com
munity. -This definition is adapted from The Federal
ist, No. 10.
factio testamenti (fak-shee-oh tes-t;l-men-t1). See TES
TAMENTI FACTIO.
fact issue. See issue offact under ISSUE (1).
facto (fak-toh), adj. In or by the fact. See DE FACTO; IPSO
FACTO.
facto et animo (fak-toh et an-d-moh). [Latin] In fact and
intent <taking possession facto et animo>.
factor, n. (I5c) |
[Latin] In fact and
intent <taking possession facto et animo>.
factor, n. (I5c) 1. An agent or cause that contributes to
a particular result <punishment was a factor in the
court's decision>. 2. An agent who is employed to sell
property for the principal and who possesses or controls factual presumption
the property; a person who receives and sells goods for
a commission <a factor was employed to sell goods for
the company> . A factor differs from a broker because
the factor possesses or controls the property_ -Also
termed commission merchant; del credere bailiff. Cf.
BROKER. [Cases: Factors C:~)1.]
"A factor by the rules of common law and of mercantile
usage is an agent to whom goods are consigned for the
purpose of sale, and he has possession of the goods, power
to sell them in his own name, and a general discretion as to
their sale. He may sell them on the usual terms of credit,
may receive the price, and give a good discharge to the
buyer." William R. Anson, Principles of the Law ofContract
523 (Arthur L. Corbin ed., 3d Am. ed. 1919).
3. One who buys accounts receivable at a discount <the
company sold its receivables to a factor at only 5% of
their stated value>. [Cases: Factors 1,5.]4. A gar
nishee <the factor held $400 of the debtor's property
when the writ of garnishment was served>. [Cases:
Garnishment (;::::> 13-24.] 5. A person in charge of
managing property, esp. real property.
judicial factor. Scots law_ An administrator or factor
specially appointed by the Court ofSession to manage
an estate.
factorage. 07c) 1. The compensation paid to a factor
for his or her services. [Cases: Factors (;::::>44.] 2. The
business ofa factor. [Cases: Factors 1,5.J
factoring, n. The buying of accounts receivable at a
discount. -The price is discounted because the factor
(who buys them) assumes the risk ofdelay in collection
and loss on the accounts receivable. [Cases: Factors
1,5,10.]
factorize (fak-t;l-rIz), vb. (I9c) 1. GARNISH (2). 2. GARNISH
(3). -factorization, n.
factorizing process. (1837) A procedure or legal process
by which a third party, rather than the creditor, attaches
a debtor's property; GARNISHMENT. -Also termed
trustee process; process by foreign attachment. [Cases:
Garnishment {~LJ
"In Vermont and Connecticut, the [garnishee] is also some
times called the factor, and the process [of garnishing],
factorizing process." Charles D. Drake, A Treatise on the
Law of Suits by Attachment in the United States 451, at
386 (7th ed. 1891).
factor's act. A statute protecting one who buys goods
from a factor or agent by creating the presumption that
the agent was acting on the owner's behalf and with the
owner's approval. [Cases: Factors (;::::>58.]
factor's lien. See LIEN.
factory act. A statute that regulates workers' hours,
health, and safety. See FAIR LABOR STANDARDS ACT.
fact pleading. See code pleading under PLEADING (2).
fact question. See QGESTION OF FACT.
fact-trier. See FACT-FINDER.
factual cause. See but-for cause under CAUSE (1).
factual impossibility. See IMPOSSIBILITY.
factual presumption. See presumption offact under PRE
SUMPTION.
672 factum
factum (fak-t<lm), n. [Latin] (ISc) 1. A fact, such as a
person's physical presence in a new domicile. 2. An act
or deed, such as the due execution of a will. Over
time, factum in this sense came to mean "charter"
that is, the act or deed of conveying land, reduced to
written form. See fraud in the factum under FRAUD.
"lilt is only a short step to holding as a matter of law that a
'deed' and by a deed (fet, factum) men are beginning to
mean a sealed piece of parchment ~has an operative force
of its own which intentions expressed, never so plainly,
in other ways have not. The sealing and delivering of the
parchment is the contractual act. Further, what is done by
'deed' can only be undone by 'deed.'" 2 Frederick Pollock
& Frederic W. Maitland, The History of English Law Before
the Time of Edward I 220 (2d ed. 1899).
factum imprestabile (fak-t<lm im-pres-tay-ba-lee).
[Law Latin] Hist. An act that cannot be performed;
an impossibility.
factum juridicum (fak-tam juu-rid-i-bm). [Latin] A
juridical fact.
factum probandum (fak-trim pra-ban-drim). [Latin] A
fact to be proved.
"Evidence is always a relative term. It signifies a relation
between two facts, the factum probandum, or proposition
to be established, and the factum probans, or material
evidencing the proposition. The former is necessarily to
be conceived of as hypothetical; it is that which the one
party affirms and the other denies, the tribunal being as
yet not committed in either direction. The latter is con
ceived of for practical purposes as existent and is offered
as such for the consideration of the tribunal. The latter is
brought forward as a reality for the purpose of convinci ng
the tribunal that the former is also a reality." John Henry
Wigmore, Evidence in Trials at Common Law 2, at 14-15
(Peter Tillers ed., 1983).
factum probans (fak-tam proh-banz). [Latin] A proba
tive or evidentiary fact; a subsidiary fact tending to
prove a principal fact in issue.
factum proprium et recens (fak-t<lm proh-pree-<lm et
ree-senz). [Law Latin] Hist. One's own act recently
performed.
3. A statement of facts. 4. BRIEF (1). PI. facta.
factum ofa will. The formal ceremony ofmaking a will;
a will's execution by the testator and attestation by the
witnesses.
fact work product. See WORK PRODUCT.
facultative certificate (fak-al-tay-tiv). Insurance. A
contract of reinsurance separately negotiated to cover
risks under a single insurance policy . Facultative rein
surance allows the reinsurer the "faculty" ofassessing
and possibly rejecting a particular risk (esp. if under
writing information is inadequate). [Cases: Insurance
C:=:>3605.]
facultative reinsurance. See REINSURANCE.
faculties. (16c) Hist. Eccles. law. 1. An authorization
granted to a person to do what otherwise would not
be allowed. 2. The extent of a husband's estate; esp.,
the ability to pay alimony. See ALLEGATION OF FACUL
TIES.
Faculties, Court of. See COliRT OF FACULTIES. Faculties, Master of the. See MASTER OF THE FACUL
TIES.
Faculty of Advocates. Scots law. The society compris
ing the members of the Scottish bar. Unlike the
English bar, the advocates do not have chambers, but
all share the facilities ofAdvocates' Library in Parlia
ment House.
faderfium (fah-thar-fee-<lm). Hist. A marriage gift to the
bride from her father or brother.
faeder-feoh (fah-th<lr-fee). Hist. Property brought by
a wife to her husband at marriage . Ifthe husband
died, the property reverted to the widow if the heir of
the deceased husband refused consent to her second
marriage. The property reverted to the widow's family
if she returned to them.
faggot. Hist. 1. A piece of firewood used to burn a heretic
alive. 2. An embroidered figure ofa faggot, required to
be worn by heretics who had recanted.
fail, n. A transaction between securities brokers in which
delivery and payment do not occur at the prescribed
time, usu. on the settlement date. -Also termed fail
contract.
fail to deliver. The nondelivery of securities from a
selling broker to a buying broker by the settlement
date.
fail to receive. The failure ofa buying broker to receive
delivery of securities from the selling broker by the
settlement date.
fail, vb. (l3c) 1. To be deficient or unsuccessful; to fall
short <they failed to settle the dispute>. 2. To become
insolvent or bankrupt <two banks failed last week>. 3,
To lapse <the bequest failed as a result ofademption>.
fail contract. See FAIL.
failed devise. See lapsed devise under DEVISE.
failed gift. 1. See lapsed devise under DEVISE. 2. See
lapsed legacy under LEGACY.
failed legacy. See lapsed legacy under LEGACY.
failing circumstances. See INSOLVENCY.
failing-company doctrine. Antitrust. The rule that
allows an otherwise proscribed merger or acquisition
between competitors when one is bankrupt or near
failure. 15 USCA 12-27. -Also termed failing
firm defense. [Cases: Antitrust and Trade Regulation
(,--'910.]
"The 1992 guidelines provide a limited defense for failing
firms and failing divisions of firms. The defense is available
if impending failure would cause the assets of one party
to leave the market if the merger does not occur. Thus to
establish a failing firm defense, the parties must show that
the failing firm cannot (1) meet its financial obligations, (2)
reorganize in bankruptcy, and (3) find another buyer whose
purchase of the firm would pose lesser anticompetitive
risks. The parties must further show that (4) without the
merger, the failing firm's assets will exit the market." Ernest
Gellhorn & William E. Kovacic, Antitrust Law and Economics
in a Nutshell 398-99 (4th ed. 1994).
fail position. A situation existing when, after all transac
tions in a security have been netted out, a broker owes
another broker more securities than it has coming in
from other firms.
failure. (l7c) 1. Deficiency; lack; want. 2. An omission
ofan expected action, occurrence, or performance. See
LAPSE (2).
failure ofa condition. The nonoccurrence of an event
that has been made a condition ofthe contract. The
usual result is that one or both of the parties do not
have to perform because of the failure of the condi
tion.
failure ofconsideration. See FAILURE OF CONSIDER
ATION.
failure ofgood behavior. A civil servant's act that is
ground for removal. [Cases; Officers and Public
Employees (:::::;69.7.]
failure ofissue. See FAILURE OF ISSUE.
failure ofjustice. See MISCARRIAGE OF JUSTICE.
failure ofproof. A party's not having produced evidence
establishing a fact essential to a claim or defense.
failure oftitle. A seller's inability to establish a good
claim to the property contracted for sale. Cf. clear
title under TITLE (2). [Cases: Vendor and Purchaser
C"::) 129(1),]
failure oftrust. The invalidity of a trust because the
instrument creating it has a defect or because of its
illegality or other legal impediment. [Cases: Trusts
(:::::;68.)
failure ofwill. The invalidity of a will that was not
executed with necessary statutory formalities.
failure otherwise than on the merits. The defeat of
a plaintiffs claim by a procedural device without a
decision on the existence of the claim's elements.
failure to bargain collectively. An employer's refusal to
discuss labor issues with a union. [Cases: Labor and
Employment (:::::; 1479.)
failure to claim. Patents. A finding by the U.S. Patent
and Trademark Office or by a court that a patent appli
cant or patentee has forfeited the right to broader pro
tection by not seeking protection for some disclosed
subject matter . Any art outside the explicit claims,
including foreseeable alteration of the claimed struc
ture, is considered dedicated to the public domain.
failure to make delivery. Nondelivery or misdelivery.
failure to meet obligations. 1. See BANKRUPTCY (4). 2.
See INSOLVENCY.
failure to perform. A party's not meeting its obliga
tions under a contract. See CONTRACT (4). [Cases:
Contracts (:;:::)261(1), 312(1),315.]
failure to state a cause of action. A plaintiff's not
having alleged facts in the complaint sufficient to
maintain a claim. _ This failure warrants dismissal
of the complaint. [Cases: Pleading Pretrial
Procedure (:::::;'622.]
failure to testify. A party's esp. a criminal defen
dant's decision not to testify . Under the Fifth Amendment, the prosecutor and the judge cannot
comment to the jury on a criminal defendant's failure
to testify. But comments on the failure are usu. per
missible in a civil case. [Cases; Criminal Law (:::::;
2129; Evidence Witnesses (:::::;88.]
failure of consideration. (1803) A seriously deficient
contractual performance that causes a contract's basis
or inducement to cease to exist or to become worthless.
Scholars disapprove ofthis term as misleading, since
failure ofperformance is more accurate. Unlike consid
eration, the phrase failure ofconsideration relates not
to the formation of a contract but to its performance.
See CONSIDERATION Cf. WANT OF CONSIDERATION,
[C |
of a contract but to its performance.
See CONSIDERATION Cf. WANT OF CONSIDERATION,
[Cases: Contracts 260, 309(1).]
"An illustration will help Indicate how the term is used. If
C promises to build a structure for 0 and 0 promises to
make payment when the work is completed, it is clear that
there is consideration on both sides of this contract and
that therefore a contract was formed upon the exchange
of promises. If C fails to perform, the result is sometimes
described as a 'failure of consideration.' 'Failure of con
sideration' simply means a failure to perform and as used
covers both a material breach of constructive conditions
and a failure to perform an express condition. The use of
the term 'failure of consideration' in this sense appears
to be an unnecessary invitation to confUSion because the
word consideration is being used in two different senses.
Fortunately, the use of this phrase has gradually fallen into
disuse, It is, however, still suffiCiently widespread to be
mentioned here. This volume nowhere utilizes 'failure of
conSideration' as an operative concept." John D. Calamari
&Joseph M, Perillo, The Law ofContracts 1121, at 474-75
(3d ed, 1987),
partial failure of consideration. (1808) A party's
incomplete pertormance ofa contract with multiple,
severable performances, so that if some ofthe perfor
mances are not accomplished, the appropriate part of
the agreement can be apportioned to whatever has
been completed. [Cases: Contracts (:::::;86,260.)
total failure ofconsideration. (1809) A situation in
which the contract is indivisible so that a complete
lack ofconsideration voids the contract. [Cases: Con
tracts (:::::;85, 260.]
failnre ofgood behavior. See FAILURE.
failure ofissue. (I7c) Archaic. The fact of a person's dying
when the person has no surviving children or other
descendants who are eligible to inherit the person's
estate. -Also termed dying without issue; definite
failure ofissue; default ofissue. See ISSUE (3). [Cases:
Descent and Distribution (:::::; 14-16.]
'There has been considerable litigation during the past
several centuries over the meaning of a gift to 'A and his
heirs, but if A shall die Without issue, to S and his heirs.'
First ofall, what does 'die without issue' mean? The answer
appears simple -you look to the time of A's death to
determine whether or not he has any children or grandchil
dren. But that is not the way the English courts originally
construed this language, The English adopted the socalled
'indefinite failure of issue' construction if at any time
in the future A's line of descent should come to an end,
then there was a gift over to S and his heirs. The effect of
this was a fee tail in A and a remainder in B. This seems
a distortion of the language. and particularly unsuited to
American circumstances since the fee tail never found
a real home here. Most of our jurisdictions, by judicial
674 failure of justice
decision or statute, adopted the socalled 'definite failure
of issue' construction you look to the date of A's death
to determine whether he has issue, and to that time alone.
If A has issue at that time, then the gift over to Bfails. This
seems to be the literal meaning of the words, and it is the
only sensible conclusion in a system where the fee tail is
virtually a dead letter. The English also struck down the
constructional preference for indefinite failure by statute in
the nineteenth century." Thomas F. Bergin &Paul C. Haskell,
Preface to Estates in Land and Future Interests 236-37 (2d
ed. 1984).
indefinite failure ofissue. (18c) A failure of issue
whenever it happens, without any certain period
within which it must happen. [Cases: Wills ~
606.]
failure ofjustice. See MISCARRIAGE OF JUSTICE.
failure ofproof. See FAILURE.
failure-of-proof defense. (1982) The defense that a
party's proof does not establish a fact essential to a
claim or defense.
failure of record. Hist. In a trial by record, a party's
inability to produce the record and thereby prove
a pleading; an absence of proof to support a party's
pleading. The other party was entitled to summary
judgment. See trial by record under TRIAL.
failure oftitle. See FAILURE.
failure oftrust. See FAILURE.
failure ofwill. See FAILURE.
failure otherwise thau on the merits. See FAILURE.
failure to bargaiu collectively. See FAILURE.
failure to claim. See FAILURE.
failure-to-disclose-best-mode rejection. See REJEC
TION.
failure to make delivery. See FAILURE.
failure to meet obligations. 1. See BANKRUPTCY (4). 2.
See INSOLVENCY.
failure to perform. See FAILURE.
failure-to-perform exclusion. See EXCLUSION (3).
failure to protect. Family law. The refusal or inability of
a parent or guardian to prevent abuse ofa child under
his or her care. [Cases; Infants ~156, 179.]
failure to state a cause ofaction. See FAILURE.
failure-to-supervise statute. See PARENTAL-LIABILITY
STATUTE.
failure to testify. See FAILURE.
failure to thrive. (1967) Family law. 1. A medical and
psychological condition in which a child's height,
weight, and motor development fall Significantly below
average growth rates . Failure to thrive is sometimes
asserted as a ground for alleging abuse or neglect by a
parent or caregiver. 2. A condition, occurring during
the first three years ofa child's life, in which the child
suffers marked retardation or ceases to grow. -Abbr.
FTT.
faint action. See FEIGNED ACTION. faint pleader. (17c) A false, fraudulent, or collusive
manner of pleading.
fair, adj. (bef. 12c) 1. Impartial; just; equitable; disinter
ested <everyone thought that Judge Jones was fair>. 2.
Free ofbias or prejudice <in jury selection, the lawyers
tried to select a fair and impartial jury>.
fair, n. (Be) Hist. A privileged market for the buying and
selling ofgoods. A fair was an incorporeal heredita
ment granted to a town by royal patent or franchise or
established by prescription. The franchise to hold a fair
conferred important privileges, and a fair, as a legally
recognized institution, possessed distinctive legal char
acteristics, most ofwhich are now obsolete. C( market
overt under MARKET.
fair-and-equitable requirement. (I7c) Bankruptcy. A
Bankruptcy Code standard requiring a forced, non
consensual Chapter 11 plan (a "cramdown" plan) to
provide adequately for each class of interests that has
not accepted the plan. In determining whether a
cramdown plan is fair and equitable and thus can be
confirmed, a bankruptcy court must apply the Code's
detailed statutory criteria, consider the plan as a whole,
and weigh all the circumstances surrounding the treat
ment of each impaired class of interests. In addition
to the fair-and-equitable requirement, the Chapter 11
cramdown plan must (1) be accepted by at least one
impaired class of claims, and (2) not discriminate
unfairly among impaired classes that have not accepted
the plan. 11 USCA 1129{b). See CRAMDOWN. [Cases:
Bankruptcy ~---:J 3563.]
fair and impartial jury. See impartial jury under JURY.
fair aud impartial trial. See FAIR TRIAL
fair and proper legal assessment. See EQUALIZATION
(2).
fair and reasonable value. See fair market value under
VALUE (2).
fair and valuable consideration. See fair consideration
(1) under CONSIDERATION (1).
fair averaging. The process of assessing taxes by using
the average ofthe amount and price ofgoods acquired
over a 12-month period rather than the amount and
price at a particular time ofthe year.
fair cash market value. See fair market value under
VALUE (2).
fair cash value. See fair market value under VALUE (2).
fair comment. (18c) A statement based on the writer's
or speaker's honest opinion about a matter of public
concern. Fair comment is a defense to libel or slander.
[Cases: Libel and Slander ~48(1).]
fair competition. See COMPETITION.
fair consideration. See CONSIDERATION (1).
Fair Credit Billing Act. A federal law that facilitates the
correction of billing errors by credit-card companies
and makes those companies more responsible for the
quality ofgoods purchased by cardholders. 15 USCA
1666-1666j. [Cases: Consumer Credit C=j 37.]
fair-credit-reporting act. (1971) A federal or state law
that regulates disclosure and use of consumer-credit
information and ensures the right of consumers to
have access to and to correct their credit reports. _ The
federal Fair Credit Reporting Act was enacted in 1970.
15 USCA 1681-1681u. -Abbr. FCRA. [Cases: Credit
Reporting Agencies (;::0 1-4.]
fair-cross-section requirement. (1975) Constitutional
law. The principle that a person's right to an impartial
jury, guaranteed by the Sixth Amendment, includes
a requirement that the pool of potential jurors fairly
represent the composition ofthe jurisdiction's popula
tion. The pool of potential jurors need not precisely
match the composition of the jurisdiction. But the
representation ofeach group must be fair -no group
should be systematically excluded or underrepresented.
A minimal disparity in a particular group's represen
tation, such as an absolute disparity of 10%, will not
ordinarily violate this principle unless some aggravat
ing factor exists. See DUREN TEST; ABSOLUTE DISPAR
ITY; COMPARATIVE DISPARITY; STATISTICAL-DECISION
THEORY. [Cases: Jury (;::033(1.1).]
fair dealing, n. (17c) 1. The conduct of business with
full disclosure, usu. by a corporate officer with the
corporation. [Cases: Corporations 316.] 2. A
fiduciary's transacting ofbusiness so that, although the
fiduciary might derive a personal benefit, all interested
persons are fully apprised of that potential and of all
other material information about the transaction. Cf.
SELF-DEALING. 3. Canadian law. FAIR USE.
Fair Debt Collection Practices Act. A federal statute
that regulates debt-collection practices, and defines the
rights ofconsumers who are contacted by debt collec
tors. 15 USCA 1692-1692p. -Abbr. FDCPA. [Cases:
Antitrust and Trade Regulation (;:::)210.]
fair hearing. See HEARIKG.
Fair Labor Standards Act. A federal law, enacted in 1938,
that regulates minimum wages, overtime pay, and the
employment of minors. 29 USCA 201-219. Abbr.
FLSA. [Cases: Lahor and Employment C=;2217(2).]
fairly-debatable rule. 1. Insurance. In some states, a
test that requires an insurer to have a plausible basis
for denying a claim to avoid bad-faith liability. [Cases:
Insurance C=>3336.J 2. Zoning. A doctrine that bars a
court from interfering with a zoning decision that is
supported by substantial evidence, although it is one
on which reasonable minds can differ. - A court will
not interfere with a decision supported by substantial
evidence. [Cases: Zoning and Planning C:~602, 605,
703.]
fair market price. See fair market value under VALUE
(2).
fair market value. See VALUE (2).
fairness doctrine. (1965) Hist. A tederallaw, based on an
FCC rule, requiring the broadcast media to furnish a
reasonable opportunity for the discussion of conflicting
views on issues ofpublic importance . The FCC aban
doned the fairness doctrine in 1987. Also termed equal-time doctrine. Cf. EQUAL TIME ACT. [Cases: Tele
communications C='1153(2).J
fair notice. See NOTICE.
fair on its face. (l8c) (Of a document) having the appear
ance ofbeing regular or legal and not capable of being
shown to be defective without extraneous evidence.
fair persuasion. See PERSUASION.
fair play. Equity, candor, and fidelity in dealings with
another.
fair play and substantial justice. (1945) The fairness
requirement that a court must meet in its assertion
of personal jurisdiction over a nonresident defendant
to comport with due process. International Shoe Co.
v. Washington, 326 U.S. 310, 66 S.C!. 154 (1945). See
MINIMUM CONTACTS. [Cases: Constitutional Law
3964.]
fair preponderance of the evidence. See PREPONDER
ANCE OF THE EVIDENCE.
fair presentation. 1. Commercial law. A materially
accurate disclosure ofa company's financial condition,
achieved by selecting and using appropriate account
ing policies, reasonably reflecting transactions that
underlie the financial data, and making any additional
necessary disclosures. 2. Criminal law. The require
ment that an applicant for a writ of habeas corpus in a
state's custody must show (1) he or she has exhausted
all available remedies in the state courts, (2) the state
has offered no corrective process, or (3) circumstances
exist that render a state's corrective process insufficient
to protect the applicant's rights. [Cases: Habeas |
exist that render a state's corrective process insufficient
to protect the applicant's rights. [Cases: Habeas Corpus
(~::;'380.)
fair rate of return. See RATE OF RETURN.
fair-report privilege. (1980) A defense to liability for
publishing defamatory matter from a report of an
official or judIcial proceeding, when the report is a full,
fair, and accurate account ofthe proceeding. [Cases:
Libel and Slander 42.]
fair representation. Labor law. Union representation
that adequately covers all union members in collective
bargaining and in the lodging of grievances. [Cases:
Labor and Employment C=:c 1208, 1209.]
fair return on investment. See RETURN.
fair sale. See SALE.
fair-share membership. See FINANCIAL-CORE MEMBER
SHIP.
fair trade, n. Commerce conducted under a fair-trade
agreement.
fair-trade agreement. (1937) A commercial agreement
that a seller will sell all ofa producer's goods at or above
a specified minimum price. -Fair-trade agreements
were valid until 1975, when the Consumer Goods
Pricing Act made them illegal. 15 USCA 1, 45.
fair-trade law. A state statute that protects and enforces
fair-trade agreements . At one time, many states
had fair-trade laws. But when applied to interstate
676 fair trial
commerce, the laws may violate the Sherman Antitrust
Act, so most states have repealed them.
fair trial. (17c) A trial by an impartial and disinterested
tribunal in accordance with regular procedures; esp.,
a criminal trial in which the defendant's constitutional
and legal rights are respected. Also termed fair and
impartial trial.
fair use. (1869) Copyright. A reasonable and limited use
ofa copyrighted work without the author's permission,
such as quoting from a book in a book review or using
parts of it in a parody. -Fair use is a defense to an
infringement claim, depending on the following statu
tory factors: (1) the purpose and character of the use, (2)
the nature of the copyrighted work, (3) the amount of
the work used, and (4) the economic impact ofthe use.
17 USCA 107. -Also termed (in Canadian law) fair
dealing. [Cases: Copyrights and Intellectual Property
(';::53.2.]
"[Fair use is] the most troublesome [problem] in the whole
law of copyright." Del/or v. Samuel Goldwyn, Inc., 104 F.2d
661,662 (2d Or. 1939) (per curiam).
"Fair use is a judicial safety valve, empowering courts to
excuse certain quotations or copies of copyrighted material
even though the literal terms of the Copyright Act prohibit
them." Paul Goldstein, Copyright's Highway 84 (1994).
fair value. See fair market value under VALUE (2).
fair-value accounting method. See ACCOUNTING
METHOD.
fair-value law. A statute allowing a credit against a defi
ciency for the amount that the fair market value ofland
exceeds the price at foreclosure. -Also termed fair
value legislation. [Cases: Mortgages (:-=>559(7), 56l.7.]
fair warning. (1931) Criminal law. The requirement
that a criminal statute define an offense with enough
precision so that a reasonable person can know what
conduct is prohibited and so that a reasonably skilled
lawyer can predict what conduct falls within the stat
ute's scope. Also termed fair notice. [Cases: Criminal
Law (:::) 13.1.]
fair wear and tear. See WEAR AND TEAR.
fait (fay or fe). [Law French fro Latin factum] Anything
done; an act or deed . 'The term fait accompli (fay or fe
td-kom-plee), meaning "a deed accomplished," which
is not merely legal, is related to this word.
fait enrolle (fay or fe ton-rohl). [Law French] Hist. An
enrolled deed of a sale ofa freehold estate.
faith and trust. See FLIM FLAM.
Faithfully Executed Clause. (1967) The clause of the U.S.
Constitution providing that the President must take
care that the laws are carried out faithfully. U.S. Const.
art. II, 3. [Cases: United States C=>26.]
faith-healing exemption. Family law. In a child-abuse
or child-neglect statute, a provision that a parent who
provides a child with faith healing (in place of standard
medical treatment) will not, for that reason alone, be
charged with abuse or neglect. Nearly all states have
enacted some form of faith-healing exemption. But the statutes differ greatly. For example, they differ
on whether the exemption is available as a defense
to manslaughter or murder charges brought against
a parent whose child dies as a result of the parent's
having refused to consent to medical treatment. -Also
termed religious-exemption statute; spiritual-treatment
exemption. Cf. medical neglect under NEGLECT.
fake, n. (19c) Something that is not what it purports to
be. See FORGERY (2); IMPOSTOR.
fake, vb. (19c) To make or construct falsely. See COUN
TERFEIT.
Falcidianlaw (fal-sid-ee-dn). (17c) Roman law. A law pre
scribing that one could give no more than three-fourths
of one's property in legacies and that the heirs should
receive at least one-fourth (the Fakidian portion). -If
the testator violated this law, the heir had the right to
deduct proportionally from each legatee as necessary.
The law, proposed by the Roman tribune Falcidius,
was enacted in 40 B.C. -Also termed lex Falcidia. See
LEGITIME.
"A large number of small legacies might [either] leave
nothing for the heir ... [or] make his part so small as to
seem valueless in his eyes. But a Falcidian law, passed in
the year 40 B.C., put an end to the whole difficulty. This
law secured to the heir a quarter of the net value of the
estate; the legatees could obtain only three-quarters: if
the legatees named in the will amounted to more than
thiS, they were diminished by proportional reductions....
Few measures have accomplished their purpose more sat
isfactorily than the Falcidian law, which remained in force
through the history of the empire, and holds an important
place in the system ofJustinian." James Hadley, Introduction
to Roman Law 321-22 (1881).
Falcidian portion. Roman law. The one-fourth part ofan
estate that one or more instituted heirs are entitled to
retain. La. Civ. Code art. 1494. -Also termed quarta
Falcidiana. See forced heir under HEIR; LEGITIME. Cf.
QUARTA TREBELLIANICA.
Falconer error. A trial court's failure to instruct the jury
that a guilty finding on a manslaughter charge requires
acquittal on a murder charge. Falconer v. Lane, 905 F.2d
1129 (7th Cir. 1990).
faldage (fahl-dij), n. Hist. 1. A landowner's right to
require tenants to graze their sheep in designated
temporary folds so that the manure will fertilize the
field. -Also termed foldage; fold soc. 2. A sum of
money paid to the landowner by a sheep-owning tenant
in lieu ofkeeping the animals in the landowner's tem
porary fold. Also termed faidfee.
faldfee (fahld-fee), n. Hist. See FALDAGE (2).
faldworth (fahld-wdrth), n. Hist. A person who resides
in a rural community where everyone above a certain
age is responSible for the good conduct of all other
members of the community and has reached that age
of responsibility. _ This was part of the frankpledge
system. See DECENARY; FRANKPLEDGE.
fallacy. Any unsound, and usu. deceptive, argument
or inference. _ Both "formal" and "material" fallacies
occur in a variety ofrecognized categories, knowledge
of which is fundamental in the analysis ofthe validity
677 false imprisonment
oflegal reasoning employed in any legal argument, esp.
in judicial opinions. The presence ofa fallacy in a legal
argument is a defect often fatal and usu. deceptive
-in the legal reasoning.
formalfallacy. A fallacy involving flaws in the form of
the argument, such as a violation of the formal rules
ofsyllogistic reasoning.
material fallacy. A fallacy involving flaws in the factual
content of a logical argument.
fallo (fahl-yoh), n. Spanish law. The mandate in a court's
judgment; the dispositive sentence in a judicial pro
nouncement.
fall ofthe hammer. An auctioneer's closing ofbidding
<the bureau will be sold at the fall of the hammer> .
Traditionally, an auctioneer bangs a hammer, gavel, or
other object when bidding is closed. In some circum
stances, such as online auctions, a verbal announcement
that bidding is closed substitutes. [Cases: Auctions and
Auctioneers
falsa causa. See CAUSA (2).
falsa demonstratio (fal-sa or fawl-sa dem-an-stray
shee-oh). Roman law. A false designation; an erroneous
description ofa person or thing in a legal instrument.
Generally, a simple error in description, grammar,
or spelling will not void an instrument or even a Single
provision in it (such as a bequest by will). -Also
termed false demonstration.
falsa moneta (fal-8;> or fawl-sa m;>-nee-ta). Roman law.
Counterfeit money.
falsare (fal-sair-ee or fawl-), vb. [Law Latin] Hist. To
counterfeit; to falsify.
falsarius (fal-sair-ee-as or fawl-). [Law Latin] Hist. A
counterfeiter. Also spelled falcarious. -Also termed
falsonarius.
false, adj. (12c) 1. Untrue <a false statement>. 2. Deceit
ful; lying <a false witness>. 3. Not genuine; inauthentic
<false coinage> . What is false can be so by intent, by
accident, or by mistake.
false, vb. 1. Scots law. To make or prove false. 2. Archaic.
FALSIFY (1).
false action. See FEIGNED ACTION.
false advertising, n. (1911) 1. The tortious and some
times criminal act of distributing an advertisement
that is untrue, deceptive, or misleading; esp., under the
Lanham Trademark Act, an advertising statement that
tends to mislead consumers about the characteristics,
quality, or geographic origin ofone's own or someone
else's goods, services, or commercial activity . Under
43(a) ofthe Lanham Act, false advertising is actionable
by anyone who reasonably believes that he or she has
been or is likely to be damaged by the statement. An
exaggerated opinion ("puffing") is an immaterial state
ment and therefore not actionable. [Cases: Antitrust
and Trade Regulation (>21,163; Fraud (>H(l).] 2. At
common law, a statement in a defendant's advertising
about its own goods or services intended to deceive or
confuse customers into buying those goods or services instead ofthe plaintiff's, and causing actual damage to
the plaintiff, esp. the loss ofsales. -Also termed (in
both senses) deceptive advertising.
false answer. See ANSWER (1).
false arrest. See ARREST.
false-association claim. Intellectual property. A claim
based on the wrongful use ofa distinctive name, mark,
trade dress, or other device to misrepresent sponsor
ship, origin of goods or services, or affiliation. The
power to assert a false-association claim is not limited
to trademark registrants. Any person who claims an
injury caused by deceptive use of a trademark or its
equivalent may have standing to bring suit. See 15
USC A 112S(a)(l)(A). [Cases: Trademarks 1106,
1117, 1563.]
false character. Hist. The crime ofimpersonating a ser
vant's master or mistress. See IMPOSTOR.
false check. See bad check under CHECK.
false claim. An assertion or statement that is untrue;
esp., overbilling.
False Claims Act. A federal statute establishing civil and
criminal penalties against persons who bill the govern
ment falsely, deliver less to the government than rep
resented, or use a fake record to decrease an obligation
to the government. 18 USCA 286-287; 31 USCA
3729-3733. The Act may be enforced either by the
attorney general or by a private person in a qui tam
action. See QUI TAM ACTION. [Cases: United States
120.]
false conflict oflaws. See CONFLICT OF LAWS.
false demonstration. See FALSA DEMONSTRATIO.
false designation oforigin. Trademarks. A mark, design,
or similar element that creates a misleading or errone
ous impression of a good or product's source. [Cases:
Antitrust and Trade Regulation Trademarks
C:::l1419.]
false evidence. Seefalse testimony under TESTIMONY.
falsehood. 1. See LIE. 2. See PERJURY.
false impersonation. See IMPERSONATION.
false-implication libel. See LIBEL.
false imprisonment. (l4c) A restraint of a person in a
bounded area without justification or consent. False
imprisonment is a common-law misdemeanor and
a tort. It applies to private as well as governmental
detention. Cf. false arrest under ARREST. [Cases: False
Imprisonment (>2, 43.]
"[ |
f. false arrest under ARREST. [Cases: False
Imprisonment (>2, 43.]
"[In the phrase false imprisonment,] false is ... used not in
the ordinary sense of mendacious or fallaCiOUS, but in the
less common though well-established sense of erroneous
or wrong; as in the phrases false quantity, false step, false
taste, etc." R.F.V. Heuston, Salmond on the Law ofTons 123
n.38 (17th ed. 1977).
"False imprisonment was a misdemeanor at common law
and is recognized by some states today. It differs from kid
napping in that asportation is not required. If the imprison
ment is secret, some jurisdictions treat it as kidnapping,"
Arnold H. Loewy, Criminal Law in a Nutshe.1I65 (2d ed,
1987).
678 false judgment
"Some courts have described false arrest and false impris
onment as causes of action which are distinguishable
only in terminology. The two have been called virtually
indistinguishable, and identical. However, the difference
between them lies in the manner in which they arise. In
order to commit false imprisonment, it is not necessary
either to intend to make an arrest or actually to make an
arrest. By contrast. a person who is falsely arrested is at
the same time falsely imprisoned." 32 Am. Jur. 2d False
Imprisonment 3 (1995).
false judgment. Hist. A writ filed to obtain review of a
judgment ofa court not ofrecord.
"After judgment given, a writ also of false judgment lies to
the courts at Westminster to rehear and review the cause,
and not a writ of error; for this is not a court of record ...."
3 William Blackstone, Commentaries on the Laws ofEngland
34 (1768).
false light. (1962) 1. Torts. In an invasion-of-privacy
action, a plaintiff's allegation that the defendant attrib
uted to the plaintiff views that he or she does not hold
and placed the plaintiff before the public in a highly
offensive and untrue manner. Ifthe matter involves
the public interest, the plaintiff must prove the defen
dant's malice. See invasion ofprivacy byfalse light under
INVASION OF PRIVACY. [Cases: Torts C:='352.] 2. (usu.
pl.) Maritime law. A signal displayed intentionally to
lure a vessel into danger. 18 USCA 1658(b). -Also
termedfalse light or signal.
false making. See FORGERY (I).
false-memory syndrome. The supposed recovery of
memories of traumatic or stressful episodes that did
not actually occur, often in session with a mental
health therapist. This term is most frequently applied
to claims by adult children that repressed memories
of prolonged and repeated child sexual abuse, usu.
by parents, have surfaced, even though there is no
independent evidence to substantiate the claims. Cf
REPRESSED-MEMORY SYNDROME.
False Memory Syndrome Foundation. An organiza
tion ofparents who claim that their adult children have
falsely accused them ofchildhood sexual abuse . The
organization was formed for the purpose of aiding
persons who claim to have been wrongly accused as a
result of the recovery of repressed memories. -Abbr.
FMSP. Cf VICTIMS OF CHILD ABUSE LAWS.
false misrepresentation. See MISREPRESENTATION .
This phrase is redundant because misrepresentation
includes the idea of falsity.
false news. Hist. The misdemeanor of spreading false
information that causes discord between the monarch
and the people or between important people in the
realm. 3 Edw., ch. 34.
false oath. See PERJURY.
false personation. Seefalse impersonation under IMPER
SONATION.
false plea. See sham pleading under PLEADING (1).
false pretenses. (ISc) The crime of knowingly obtaining
title to another's personal property by misrepresenting a
fact with the intent to defraud. Although unknown to English common law, false pretenses became a misde
meanor under a statute old enough to make it common
law in the United States. Modern American statutes
make it either a felony or a misdemeanor, depending on
the property's value. -Also termed obtaining property
by false pretenses; fraudulent pretenses. Cf. larceny by
trick under LARCENY; EMBEZZLEMENT. [Cases: False
Pretenses 1.]
false promise. See PROMISE.
false report. (1S27) Criminal law. The criminal offense
of informing law enforcement about a crime that did
not occur. [Cases: Obstructing Justice
false representation. See MISREPRESENTATION.
false return. (16c) 1. A process server's or other court
official's recorded misrepresentation that process
was served, that some other action was taken, or that
something is true. See RETURN (2). [Cases: Process
132-144,153, 160.] 2. A tax return on which taxable
income is incorrectly reported or the tax is incorrectly
computed. See TAX RETURN. [Cases: Internal Revenue
44S0.J
false statement. See STATEMENT.
false swearing. See PERJURY.
false testimony. See TESTIMONY.
false token. See TOKEN.
false verdict. See VERDICT.
false weight. (usu. pl.) A weight or measure that does not
comply with governmentally prescribed standards or
with the prevailing custom in the place and business in
which the weight or measure is used. [Cases: Weights
and Measures C= 10.]
falsi crimen. See crimen falSi under CRIMEN.
falsify, vb. (1Sc) 1. To make something false; to counter
feit or forge <the chiropractor falsified his records to
help the plaintiff>. -Also termed (archaically) false.
See COUNTERfEIT; FORGERY. 2. Rare. To prove some
thing to be false or erroneous <their goal in the appeal
was to falsify the jury's verdict>. falsification, n.
falsifying a record. (l8c) The crime of making false
entries or otherwise tampering with a public record
with the intent to deceive or injure, or to conceal wrong
dOing. 18 USCA 1506,2071,2073; Model Penal Code
224.4. [Cases: Fraud C:='68; Records
falsing of dooms, n. See APPEAL (I).
falsity, n. (l3c) 1. Something (such as a statement) that is
false. See LIE. 2. The quality ofbeing false. See FALSE.
falsonarius. See FALSARHJS.
falso retorno brevium (fal-soh [or fawl-soh] ri-tor-noh
bree-vee-Jm). [Law Latin] Hist. A writ against a sheriff
for falsely returning a writ.
falsum (fal-sam or fawl-sam), n. [Latin] Roman law. 1.
A false statement. See crimen falsi under CRIMEN. 2. A
crime involving forgery or falsification . Until the later
Roman empire, the term applied to both documents
and counterfeited coins.
679
falsus in uno doctrine (fal-sas [or fawl-sas] in yoo-noh).
[fro Latin falsus in uno, falsus in omnibus "false in one
thing, false in all"] The principle that if the jury believes
that a witness's testimony on a material issue is inten
tionally deceitful, the jury may disregard all ofthat wit
ness's testimony. [Cases: Trial C-~187, 210; Witnesses
(;::::'317.]
"[TJhere is an old maxim 'falsus in uno, falsus in omnibus'
(false in one thing, false in all), which is often much over
emphasized by counsel, though it is recognized by many
courts in their charges to the jury. But this is only primitive
psychology, and should be completely discarded." John
H. Wigmore, A Students' Textbook of the Law of Evidence
181 (1935).
faltering-company exception. A provision in the Worker
Adjustment and Retraining Notification Act exempting
an employer from giving the required 60-day notice for
a plant shutdown if (1) at the time notice was due, the
employer was seeking capital or resources that would
have allowed the employer to avoid a shutdown, and
(2) the employer reasonably believed that providing the
notice would have precluded the employer from obtain
ing the necessary capital or other resources. 29 USCA
2102(b)(I). See WORKER ADJUSTMENT AND RETRAIN
ING NOTIFICATION ACT. [Cases: Labor and Employment
fama publica (fay-ma pab-li-ka). [Latin "public repute"]
Hist. A person's reputation in the community . A
person'sfama publica could be used against him or her
in a criminal proceeding. Cf. ILL FAME.
"Now in the thirteenth century we find in the sheriff's turn
a procedure by way of double presentment, and we may
see it often, though not always, when a coroner is holding
an inquest over the body of a dead man. The fama publica
is twice distilled. The representatives of the vilis make pre
sentments to ajury of twelve freeholders which represents
the hundred, and then such of these presentments as the
twelve jurors are willing to 'avow,' or make their own, are
presented by them to the sheriff. ... From the very first
the legal forefathers of our grand jurors are not in the
majority of cases supposed to be reporting crimes that
they have witnessed, or even to be the originators of the
fama publica. We should be guilty of an anachronism if
we spoke of them as 'endorsing a bill' that is 'preferred'
to them; but still they are handing on and 'avowing' as
their own a rumour that has been reported to them by
others." 2 Frederick Pollock & Frederic W. Maitland, The
History of English Law Before the Time of Edward I 643
(2d ed. 1899).
familia (fa-mil-ee-a), n. (18c) [Latin] Roman law. 1. All
persons, free and slave, in the power ofa paterfamilias.
See PATERFAMILIAS. 2. One's legal relations through
and with one's family, including all property, ancestral
privileges, and duties.
"The testator conveyed to him outright his whole 'familia,'
that is, all the rights he enjoyed over and through the
family; his property, his slaves, and all his ancestral privi
leges, together, on the other hand, with all his duties and
obligations." Henry S. Maine, Ancient Law 170 (17th ed.
1901).
3. A family, including household servants.
"Familia.... A family or household, including servants,
that is, hired persons (mercenarii or conductitii,) as well as
bondsmen, and all who were under the authority of one
master, (dominus.) Bracton uses the word in the original family arrangement
sense, as denoting servants or domestics." 1 Alexander
M. Burrill, A Law Dictionary and Glossary 603-04 (2d ed.
1867).
familiae emptor (fo-mil-ee-ee emp-tor). [Latin "estate
purchaser"] Roman law. A trustee who received an
inheritance by a fictitious purchase and distributed it as
the testator instructed. Also termed emptor familiae.
See mancipatory will under WILL.
"At some date, probably long before the XII Tables, men
on the point of death, unable to make a true will because
there was no imminent sitting of the Comitia, adopted the
practice of conveying all their property ... to a person
who is described as the familiae emptor, and who is said
by Gaius to be in loco heredis. Instructions were no doubt
given to him as to the disposal of the property or part
of it, but it is not clear that these were enforceable ...."
w.w. Buckland, A Manual of Roman Private Law 175 (2d
ed. 1953).
familiae erciscundae (fa-mil-ee-ee ar-sis-kan-dee). See
actio familiae erciscundae under ACTIO.
familiares regis (fa-mil-ee-air-eez ree-jis). [Law LatinJ
Hist. 1. Persons ofthe king's household. 2. 1he ancient
title of the six clerks ofchancery in England.
family, n. (l4c) 1. A group of persons connected by
blood, by affinity, or by law, esp. within two or three
generations. 2. A group consisting ofparents and their
children. 3. A group of persons who live together and
have a shared commitment to a domestic relationship.
See RELATIVE. familial, adj.
blended family. (1985) The combined families of
persons with children from earlier marriages or rela
tionships.
extended family. (1942) l. The immediate family
together with the collateral relatives who make up
a clan; GENS. 2. The immediate family together with
collateral relatives and close family friends.
immediate family. (l8c) 1. A person's parents, spouse,
children, and siblings. 2. A person's parents, spouse,
children, and Siblings, as well as those ofthe person's
spouse. Stepchildren and adopted children are usu.
immediate family members. For some purposes, such
as taxes, a person's immediate family may also include
the spouses ofchildren and siblings.
intact family. A family in which both parents live
together with their children.
family allowance. See ALLOWANCE (1).
Family and Medical Leave Act. A 1993 federal statute
providing that employees may take unpaid, job-pro
tected leave for certain family reasons, as when a family
member is sick or when a child is born. 29 USCA
2601 et seq. The statute applies to businesses with
50 or more employees. An employee may take up to
12 weeks ofunpaid leave per year under the FMLA. |
50 or more employees. An employee may take up to
12 weeks ofunpaid leave per year under the FMLA.
Abbr. FMLA. Cf. FAMILY LEAVE. [Cases: Labor and
Employment
family arrangement. (1817) An informal agreement
among family members, usu. to distribute property
in a manner other than what the law provides for.
680 family-automobile doctrine
Also termed family settlement. [Cases: Descent and
Distribution C=>82.)
family-automobile doctrine. See FAMILY-PURPOSE
RULE.
family-autonomy doctrine. See PARENTAL-AUTONOMY
DOCTRINE.
family-car doctrine. See FAMILY-PURPOSE RULE.
family compact. See COMPACT.
family corporation. See close corporation under COR
PORATION.
family council. See FAMILY MEETING.
family court. See COURT.
family-court judge. See JUDGE.
family disturbance. See DOMESTIC DISPUTE.
Family Division. English law. A section of the High
Court that has jurisdiction over family matters such
as divorce and custody and over uncontested probate
matters.
Family Educational Rights and Privacy Act. An act
that prescribes minimum standards for the mainte
nance and dissemination of student records by edu
cational institutions. 20 USCA 1232g. It applies
only to schools that receive federal funding. -Abbr.
FERPA. -Also termed Buckley Amendment. [Cases:
Colleges and Universities C=>9.40; Records C=>31.)
family-expense statute. (1901) 1. A state law that
permits a charge against the property of a spouse for
family debts such as rent, food, clothing, and tuition.
[Cases: Husband and Wife 19(1).) 2. A section of
the federal tax code providing that a person may not
deduct expenses incurred for family, living, or personal
purposes. IRC (26 USCA) 262. See NECESSARIES.
[Cases: Internal Revenue C=>3364.)
family farmer. See FARMER.
family-farmer bankruptcy. See CHAPTER 12 (2).
family home. A house that was purchased during
marriage and that the family has resided in, esp. before
a divorce . In some jurisdictions, the court may award
the family home to the custodial parent until (1) the
youngest child reaches the age of 18 or is otherwise
emancipated, (2) the custodial parent moves, or (3) the
custodial parent remarries. In making such an award,
the court reasons that it is in the best interests of the
child to remain in the family home. -Also termed
marital home; marital residence. [Cases: Divorce
252.5.)
family-income insurance. See INSURANCE.
family law. (1919) 1. The body of law dealing with
marriage, divorce, adoption, child custody and support,
child abuse and neglect, paternity, juvenile delin
quency, and other domestic-relations issues. -Also
termed domestic relations; domestic-relations law. 2.
(More broadly) the bodies oflaw dealing with wills
and estates, property, constitutional rights, contracts,
employment, and finance as they relate to families. family leave. (1981) An unpaid leave of absence from
work taken to have or care for a baby or to care for a sick
family member. See FAMILY AND MEDICAL LEAVE ACT.
[Cases: Labor and Employment C=>350, 351.)
family meeting. Hist. Civil law. 1. An advisory council
called to aid the court in a family-law matter, such
as arrangement of a guardianship for a minor or an
incompetent adult . Ifa person had no relatives, the
court could summon friends of the person instead. 2.
A council of relatives of a minor assembled to advise
the minor in his or her affairs and to help administer
the minor's property. -Also termed family council.
[Cases: Guardian and Ward C=>9.)
family of marks. Trademarks. A group of trademarks
that share a recognizable characteristic so that they are
recognized by consumers as identifying a single source.
An example of a family of marks is the variety of
marks beginning with Mc-and identifying items served
at McDonald's restaurants. [Cases: Trademarks C=>
1060.)
family ofnations. Int'llaw. The community ofcountries
to which international law applies . This term is now
obsolescent. It is increasingly rejected as Eurocentric.
'''The family of nations' is an aggregate of States which, as
the result of their historical antecedents, have inherited
a common civilisation, and are at a similar level of moral
and political opinion." Thomas E. Holland, The Elements of
jurisprudence 396 (13th ed. 1924).
family partnership. See PARTNERSHIP.
family-partnership rules. (1946) Laws or regulations
designed to prevent the shifting of income among
partners, esp. family members, who may not be dealing
at arm's length.
family-pot trust. See TRUST.
family-purpose rule. (1927) Torts. The principle that a
vehicle's owner is liable for injuries or damage caused
by a family member's negligent driving . Many states
have abolished this rule. -Also termed family-pur
pose doctrine;family-automobile doctrine;family-car
doctrine. Cf. GUEST STATUTE. [Cases: AutomobilesC=>
195(5).)
"A number of jurisdictions have adopted the socalled
'family purpose' doctrine, under which the owner of a
motor vehicle purchased or maintained for the pleasure
of his family is liable for injuries inflicted by the negligent
operation of the vehicle while it is being used by members
of the family for their own pleasure, on the theory that
the vehicle is being used for the purpose or business for
which it was kept, and that the person operating it is there
fore acting as the owner's agent or servant in using it."
8 Am. Jur. 2d Automobiles and Highway Traffic 715, at
296 (1997).
family reunification. See REUNIFICATION.
family settlement. See FAMILY ARRANGEMENT.
family shelter. See women's shelter under SHELTER.
family support. A combined award ofchild support and
alimony that does not apportion the amount of each.
[Cases: BankruptcyC=>3365; Child Support C=>140(1);
Divorce C=>230; Internal Revenue C=>3288.)
681
Family Support Act of 1988. A federal statute requiring
states to develop and implement child-support gUide
lines. 42 USCA 667. See CHILD-SUPPORT GUIDELINES.
[Cases: Child Support C:142-148.]
family trust. See TRUST.
family violence. See domestic violence under
VIOLENCE.
famosus (f<l-moh-s<ls), adj. [Latin] Hist. 1. (Of a state
ment) having a defamatory character. 2. (Of an action)
involving infamy if the defendant lost the case.
famosus libellus (f<l-moh-s<ls li-bel-<'ls). [Latin] Roman
law. 1. A libelous writing. 2. The species ofinjury that
is caused by libeL
famous mark. Seefamous mark under TRADEMARK.
famous trademark. See TRADEMARK.
fanciful mark. See fanciful trademark under TRADE
MARK.
fanciful term. See fanciful trademark under TRADE
MARK.
fanciful trademark. See TRADEMARK.
Fannie Mae (fan-ee may). See FEDERAL NATIONAL
MORTGAGE ASSOCIATION.
FAPE. abbr. Free appropriate public education . lhis
is a right of children with disabilities to have access to
free education, guaranteed by the Rehabilitation Act of
1973 and the Individuals with Disabilities Education
Act. See 34 C.P.R. 100.33; 34 C.F.R. 300.13. [Cases:
Schools (;::;:0 148(2).]
FAR. (often pl.) abbr. FEDERAL AVIATION REGULATION
<the pilot violated several FARs before the crash>.
farley (fahr-Iee). Hist. Money paid by a tenant in lieu of
a chattel (or heriot) . The term invariably referred to a
tenant in the west ofEngland. See HERIOT.
farm, n. (l4c) 1. Land and connected buildings used for
agricultural purposes. 2. Hist. Rent . By extension,
the term came to mean the land for which the rent was
paid. Also termed and spelled ferm; fearm; firme.
farm, vb. (I5c) 1. To cultivate land; to conduct the
business of farming. 2. To lease. See FARM OUT.
Farm Credit Administration. An independent federal
agency that regulates and examines the borrower
owned banks and cooperative associations that make
up the Federal Farm Credit System . The agency was
created in 1929 under the title "Federal Farm Board,"
became an agency in the Department of Agriculture
in 1933, and again became independent in 1971. -
Abbr. FCA. See FEDERAL FARM CREDIT SYSTEM. [Cases:
United States
farmee. See FARMOUTEE.
farmer. (14c) A person whose business is farming.
family farmer. A person or entity whose income and
debts primarily arise from a family-owned and
-operated farm; esp., a person who received more than
80% ofgross income from a farm in the taxable year
immediately preceding a Chapter 12 filing. Only a farmoutee
family farmer can file for Chapter 12 bankruptcy. 11
USCA 101(18). See CHAPTER 12. [Cases: Bankruptcy
farmer bankruptcy. See CHAPTER 12 (2).
Farmers' Home Administration. An agency, formerly
in the U.S. Department ofAgriculture, responsible for
making mortgages and insuring loans to farmers and
for funding rural public-works projects . The agency
was abolished in 1994, and its functions were assumed
by other agencies in the Department -Abbr. FmHA;
FHA. [Cases: United States (;=>53(7).)
farminee. See FARMOUTEE.
farming operation. (1859) Bankruptcy. A business
engaged in farming, tillage of soil, dairy farming,
ranching, raising of crops, poultry, or livestock, and
production of poultry or livestock products in an
unmanufactured state. 11 USCA 101(21). See CHAPTER
12. [Cases: Bankruptcy (;=>2021.1.]
farminor. See FARMOUTOR.
farm let, vb. Hist. To lease; to let land for rent. To farm
let is a phrasal verb that commonly appeared in real
property leases; it corresponds with its Latin root, ad
firmam tradidi.
"A lease is properly a conveyance of any lands or tene
ments, (usually in consideration of rent or other annual
recompense) made for life, for years, or at will, but always
for a less time than the lessor hath in the premises: for if
it be for the whole interest, it is more properly an assign
ment than a lease. The usual words of operation in it are,
'demise, grant, and to farm let; dimisi, concessi, et ad
firmam tradidi." 2 William Blackstone, Commentaries on
the Laws ofEngland 317-18 (1766).
farmor. See FARMOUTOR.
farm out, vb. (17c) 1. To turn over something (such as an
oil-and-gas lease) for performance by another. The
term evolved from the Roman practice oftransferring
the right to collect taxes to a third party for a fee. That
practice continued in England, Scotland, and France,
but it has been long abolished. 2. Hist. To lease for a
term. 3. To exhaust farmland, esp. by continuously
raising a single crop.
farmout agreement. Oil & gas. An agreement by which
one who owns an oil-and-gas lease (the farmoutor or
farmor) agrees to assign to another (the farmoutee or
farmee) an interest in the lease in return for drilling
and testing operations on the lease . For the farmor,
the agreement either (1) maintains the lease by securing
production or complying with the implied covenant
to develop or offset, or (2) obtains an interest in pro
duction without costs. For the farmee, the agreement
obtains acreage that is not otherwise available or at
lower cost than would otherwise be possible. A farmout
agreement may also serve as a device to keep people
and equipment gainfully employed. Often short
ened to farmout. -Also written farm out agreement;
farm-out agreement. See ASSIGNMENT. [Cases: Mines
and Minerals (;=>74(8).]
farmoutee (fahrm-ow-tee). An oil-and-gas sublessee to
whom the lease is assigned for purposes of drilling a
farmoutor 682
well. Also termedfarmee;farminee. [Cases: Mines
and Minerals (;::::/74(8).]
farmoutor (fahrm-ow-tor or -t<}r). An oil-and-gas lessee
who assigns the lease to another, who agrees to drill a
well. -Also spelled farmouter. -Also termed farmor;
farminor. [Cases: Mines and Minerals (;:='74(8).]
farm products. Crops, livestock, and supplies used or
produced in farming or products ofcrops or livestock
in their unmanufactured states, if they are in the pos
session of a debtor engaged in farming. UCC 9-102(a)
(34). Cf. growing crops under CROPS. [Cases: Secured
Transactions <>17.]
Farm Service Agency. An agency in the U.S. Depart
ment |
Cases: Secured
Transactions <>17.]
Farm Service Agency. An agency in the U.S. Depart
ment of Agriculture responsible for administering
farm-commodity, crop-insurance, and resource-con
servation programs for farmers and ranchers and for
making or guaranteeing farm emergency and operating
loans through a network ofstate and county offices.
Abbr. I;SA. [Cases: United States C=j 53(8).J
farthing of land (fahr-thing). Hist. An area of land
measured as one-quarter of a larger area (much as a
farthing was one-quarter of a penny). - A farthing of
land ranged from a quarter of a hide to a quarter of
an acre.
farvand (fahr-vand). Hist. Maritime law. Voyage or
passage by water under a charterparty.
Faryndon's Inn. Hist. The ancient name of Serjeants'
Inn. See SER]EANTS' INN.
FAS. abbr. 1. FREE ALONGSIDE SHIP. 2. FETAL ALCOHOL
SYNDROME. 3. FOREIGN AGRICULTURAL SERVICE.
fas (fas), n. [Latin] Roman law. 1. Moral law of divine
origin; divine law . Jus, by contrast, is created by man.
See JUS. 2. What is right, proper, lawful, and permit
ted. Cf. NEFAS.
"The first element to be noted in the Roman composite
existing in primitive times, when religion and law were not
distinguished, is fas -the will of the gods, embodied in
rules that regulated not only ceremonials but the conduct
of all men as such." Hannis Taylor, The Science ofJurispru
detice 6S (1908).
"It is true that the two spheres of ius and fas overlapped. , ..
All this, however, concerned merely the question of where
to draw the line between ius and fas; it did not blur the
distinction between the two. From the standpoint of the
history of Roman law. this distinction, consciously made
from very early times, was of great importance, since it
enabled the Romans to delimit the scope and the contents
of strictly legal rules. This attitude may occasionally
have caused a certain cold aloofness from purely human
problems, but it undoubtedly contributed to the clarity
of the legal system." Hans Julius Wolff, Roman Law: An
Historical Introduction 51-52 (1951).
FASB (faz-bee). abbr. FINANCIAL ACCOVNTING STAN
DARDS BOARD.
FASB statement. An official pronouncement from the
Financial Accounting Standards Board establishing
a given financial-accounting practice as acceptable.
lCases: Securities Regulation (;::::/25. 18.J
fascism. A totalitarian political ideology under which all
economic and social aspects of life come under rigid government control or direction, and the state's inter
ests supersede individual interests.
fast estate. See real property under PROPERTY.
fasti (fas-tr). [Latin] Roman law. 1. The days on which
court can be held . In this sense,fasti is a shortened
form of dies fasti. 2. A calendar of days on which court
can be held. See dies fasti under DIES.
fast land. See LAND.
fast-tracking, n. (1996) A court's method of accelerating
the disposition of cases in an effort to clear its docket.
-For example, a judge might order that all discovery
must be finished within 90 days and that trial is set for
30 days later. See ROCKET DOCKET. fast-track, vb.
fatal, adj. (14c) 1. Ofor relating to death; prodUcing death
<the decision had fatal consequences> <fatal blow>. 2.
Providing grounds for legal invalidity <a fatal defect
in the contract>.
fatal defect. See DEFECT.
fatal error. See reversible error under ERROR (2).
fatal variance. See VARIANCE (1).
fate and transport. Environmental law. Ihe physical
condition and migration of contaminants and hazard
ous materials along environmental pathways such as
air, water, and soil.
father. (bef. 12c) A male parent. See PARENT. (Cases:
Parent and Child (;::::/ 1.]
acknowledged father. Ihe admitted biological father of
a child born to unmarried parents. See ACKNOWLEDG
MENT (I). [Cases: Children Out-of-Wedlock C~~12.]
adoptive father. See adoptive parent under PARENT.
biological father. (1951) The man whose sperm impreg
nated the child's biological mother. Also termed
natural father; birth father; genetic father. [Cases:
Children Out-of-Wedlock <>1.]
birth father. See biological father.
de facto father. See de facto parent under PARENT.
filiated father. The proven biological father ofa child
born to unmarried parents. See FILIATION.
foster father. Seefoster parent under PARENT.
genetic father. See biological father.
godfather. See GODPARENT.
intentional father. See intentional parent under
PARENT.
legal father. (I6c) The man recognized by law as the
male parent of a child . A man is the legal father of
a child ifhe was married to the child's natural mother
when the child was born, if he has recognized or
acknowledged the child, or ifhe has been declared the
child's natural father in a paternity action. Ifa man
consents to the artificial insemination ofhis wife, he
is the legal father ofthe child that is born as a result of
the artificial insemination even though he may not be
the genetic father ofthe child. [Cases: Children Out
of-Wedlock <>12,68; Parent and Child 20.]
683
natural father. See biological father.
presumed father. (I937) The man presumed to be the
father ofa child for any ofseveral reasons: (1) because
he was married to the child's natural mother when
the child was conceived or born (even though the
marriage may have been invalid), (2) because the man
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) because the man welcomed
the child into his home and held out the child as his
own. This term represents a complicated category,
and state laws vary in their requirements. See PRE
SUMPTION OF PATERNITY. Children Out-of-
Wedlock C=:3, 43; Infants 172.J
psychological father. See psychological parent under
PARENT.
putative father (pyoo-t<}-tiv). (16c) The alleged bio
logical father of a child born out of wedlock. [Cases:
Children Out-of-Wedlock
stepfather. (bef. 12c) The husband of one's mother by
a later marriage. -Formerly also termed vitricus.
[Cases: Parent and Child C=> 14.]
fatherly power. See patria potestas under POTESTAS.
Fatico hearing (fat-<}-koh). (1979) Criminal procedure.
A sentencing hearing at which the prosecution and the
defense may present evidence about what the defen
dant's sentence should be. United States v. Fatico, 603
F.2d 1053 (2d Cir. 1979). [Cases: Sentencing and Pun
ishment C=>325, 985.]
fatuum judicium (fach-oo-<}m joo-dish-ee-;)m). [Latin]
A foolish judgment or verdict.
fauces terrae (faw-seez ter-ee). [Latin "narrow passage
of the land"] A body of water that experiences tides
and is partially enclosed by land. -Ihis includes inlets,
rivers, harbors, creeks, bays, basins, and similar aquatic
bodies.
fault. (13c) 1. An error or defect of judgment or of
conduct; any deviation from prudence or duty result
ing from inattention, incapacity, perversity, bad faith,
or mismanagement. See NEGLIGENCE. Cf. LIABILITY.
2. Civil law. The intentional or negligent failure to
maintain some standard ofconduct when that failure
results in harm to another person.
contractual fault. Civil law. Fault resulting from the
intentional or negligent failure to perform an enforce
able obligation in a contract.
delictual fault. Civil law. Fault resulting from inten
tional or negligent misconduct that violates a legal
duty.
inscrutable fault. Maritime law. Fault ascribed solely
to human error but for which no responsible party or
parties can be identified. [Cases: Collision C=:23.]
"Inscrutable fault' exists when a collision clearly resulted
from human fault but the court is unable to locate it or
allocate the fault among the parties." Atkins v. Lorentzen,
328 F.2d 66, 69 (5th Cir. 1964).
fault-based liability. See fault liability under FAULT. favor negotii
fault divorce. See DIVORCE.
fault-first method. (1996) A means by which to apply a
settlement credit to a juryverdict, by first reducing the
amount ofthe verdict by the percentage ofthe plaintiff's
comparative fault, then subtracting from the remainder
the amount ofany settlements the plaintiff has received
on the claim. See SETTLEMENT CREDIT. Cf. SETTLE
MENT-FIRST METHOD. [Cases: Damages C=:63.]
faultless pardon. See PARDON.
fault liability. See LIABILITY.
fault of omission. (17c) Negligence resulting from a
negative act. See negative act under ACT; NONFEA
SANCE.
Fauntleroy doctrine. The principle that a state must give
full faith and credit to another state's judgment, ifthe
other state had proper jurisdiction, even though the
judgment is based on a claim that is illegal in the state
in which enforcement is sought. Fauntleroy v. Lum, 210
U.S. 230, 28 S.Ct. 641 (1908). [Cases: Judgment C=>815,
817.]
fautor (faw-t<}r). Hist. 1. An abettor or supporter; an
active partisan. 2. A person who encourages resistance
to execution of process.
faux (foh), adj. [Law French] Hist. False or counterfeit.
faux (foh), n. [French "false"] Civil law. The fraudulent
alteration of the truth. See CRIMEN FALSI.
faux action. A false action. See PLEADING.
faux money. Counterfeit money.
faux peys (foh pay). [French] False weights. See FALSE
WEIGHT. [Cases: Weights and Measures C=: 10.]
faux serement (foh ser-mahn). [French] A false oath.
favor, n. See BIAS.
favored beneficiary. See BENEFICIARY.
favored nation. See MOST FAVORED NATION.
favored-nation clause. See MOST-FAVORED-NATION
CLAUSE.
favorite of the law. (ISe) A person or status entitled to
generous and preferential treatment in legal doctrine.
"It has long been said that the surety is a favorite ofthe law
and his contract strictissimi-juris." Laurence P. Simpson,
Handbook on the Law ofSuretyship 94 (1950).
favoritism. (18c) Preference or selection, usu. invidi
ous, based on factors other than merit. See NEPOTISM;
PATRONAGE. Cf. DISCRIMINATION.
favor legitimationis (fay-v;)r b-jit-<}-may-shee-oh-nis).
[Latin "(in) favor oflegitimacy"] The principle that a
court should attempt to uphold a child's legitimacy.
favor matrimonii (fay-vdr ma-tr;)-moh-nee-I). [Latin
"(in) favor of marriage"] The principle that a court
should attempt to uphold the validity ofa marriage.
favor negotii (fay-v;)r ni-goh-shee-I). [Latin "(in) favor
of business"] The principle that favors upholding a
contract against a construction that would render the
contract illegal or unenforceable.
684 favor patemitatis
favorpaternitatis (fay-vJr pJ-tJr-nJ-tay-tis). [Latin "(in)
favor of paternity"] The principle that a court should
interpret facts so as to uphold the paternity ofa child.
favor solutionis (fay-vJr $J-Ioo-shee-oh-nis). [Latin "(in)
favor ofpayment"] Conflict oflaws. The principle that a
contract should be interpreted according to the appli
cable law governing performance.
favor testamenti (fay-vJr tes-tJ-men-tI). [Latin "(in)
favor of the testament"] The principle that a court
should attempt to uphold a will's validity.
fax, n. (1948) 1. A method oftransmitting over telephone
lines an exact copy ofa printing. 2. A machine used for
such transmission. -Also termed telecopier. 3. The
communication sent or received by such a machine.
Also termedfacsimile; (in senses 1 & 3) facsimile trans
mission. fax, vb.
FBI. abbr. FEDERAL BUREAU OF INVESTIGATION.
FCA. abbr. 1. FARM CREDIT ADMINISTRATION. 2. FREE
CARRIER.
F. Cas. abbr. Federal Cases, a series ofreported decisions
(1789-1880) predating the Federal Reporter.
FCC. abbr. FEDERAL COMMUNICATIONS COMMISSION.
FCFAA. abbr. FEDERAL COMPUTER FRAUD AND ABUSE
ACT.
FCIC. abbr. FEDERAL CROP INSURANCE CORPORATION.
FCJ. abbr. Failure to comply with a judgment imposed
for a traffic violation. -The defendant's driver's license
is suspended until the FCJ is remedied and the fines
and fees are |
The defendant's driver's license
is suspended until the FCJ is remedied and the fines
and fees are paid.
FCPV. abbr. Failure to comply with parking-violation
tickets. _ If a person has a certain number of unpaid
parking tickets (often six) within a jurisdiction, the
person will be barred from obtaining or renewing a
driver's license.
FDA. abbr. FOOD AND DRUG ADMINISTRATION.
f/d/b/a. abbr. Formerly doing business as.
FDCA. abbr. FOOD, DRUG, AND COSMETIC ACT.
FDCPA. abbr. See FAIR DEBT COLLECTION PRACTICES
ACT.
FDIC. abbr. FEDERAL DEPOSIT INSURANCE CORPORA
TION.
feal (fee-<ll), adj. Archaic. Faithful; truthful. Also
termedfefe.
fealty (feel-tee or fee-dl-tee). (14c) Hist. In feudal law, the
allegiance that a tenant or vassal owes to a lord. Also
termedfeodality.
"There was the possibility that if the entire top layer of
the structure revolted, the king might be deprived of all
support. To meet this possibility, the king also bound
directly to himself all the important men in the lower
strata of the [feudal] structure by an oath of loyalty. This
was particularly effective for in medieval times the oath of
fealty had all the sanction of the church, and in addition
due to the necessity for feudal organization in times of
disorder, had also a popular sanction in public opinion
so that the man who broke his oath to his lord was one of
the most execrable men to be found in the whole social organization." Charles Herman Kinnane, A First Book on
Ang/o-American Law 248 (2d ed. 1952).
fearm. See FARM.
fear-of-cancer claim. Torts. A tort claim founded on a
plaintiff's mental anguish or emotional distress arising
from the fear ofdeveloping cancer, where either (1) the
plaintiff was exposed to asbestos or other carcinogenic
agents, or (2) a physician's negligence gave rise to a
potentially cancerous condition or permitted a cancer
to develop unchecked. -The plaintiff must demon
strate (1) actual exposure to a disease-causing agent,
and (2) the reasonableness ofthe emotional distress.
See Winik v. Jewish Hasp. ofBrooklyn, 293 N.E.2d 95
(N.Y. 1972); Ferrara v. Galluchio, 152 N.E.2d 249 (N.Y.
1958). -Also termed cancerphobia claim.
feasance (fee-zdnts), n. (16c) The doing or execution of
an act, condition, or obligation. Cf. MALFEASANCE; MIS
FEASANCE; NONFEASANCE. -feasor, n.
feasant (fez-Jnt or fee-zJnt). Archaic. Doing or causing.
See DAMAGE FEASANT.
feasibility standard. (1978) Bankruptcy. The requirement
that, to obtain bankruptcy-court approval, a Chapter
II reorganization plan must be workable and have a
reasonable likelihood ofsuccess. [Cases: Bankruptcy
C=-3559.]
feasor (fee-zJr), n. (1808) An actor; a person who
commits an act. See TORTFEASOR.
feast, n. (13c) 1. Roman law. An established holiday or
festival in the ecclesiastical calendar, used as a date in
a legal instrument. 2. Hist. One of four principal days
(feasts) of the year: March 25, the annunciation of the
Virgin Mary; June 24, the birth ofJohn the Baptist;
September 28, the feast of St. Michael the Archangel;
and December 21, the feast ofSt. Thomas the Apostle.
The four feast days were used as fixed dates (called
"quarter-da for paying rent; before 1875, they were
used as a e point to set terms ofcourts. Also
termed feast day;feast-day.
featherbedding. (1921) A union practice designed to
increase employment and guarantee job security by
requiring employers to hire or retain more employees
than are needed. _ The practice stems from employ
ees' desire for job security in the face oftechnological
improvement. Featherbedding is restricted by federal
law but is an unfair labor practice only if, for example,
a union exacts pay from an employer for services not
performed or not to be performed.
FEC. abbr. FEDERAL ELECTION COMMISSION.
FECA. abbr. FEDERAL EMPLOYEES' COMPENSATION
ACT.
feciaies, n. See FETIALES.
feciallaw. See FETIAL LAW.
Fed. abbr. 1. FEDERAL. 2. FEDERAL RESERVE SYSTEM.
Fed. Appx. abbr. FEDERAL APPENDIX.
Fed. Cir. abbr. UNITED STATES COURT OF APPEALS FOR
THE FEDERAL CIRCUIT.
685
federal, adj. (18c) Ofor relating to a system ofassociated
governments with a vertical division of governments
into national and regional components having differ
ent responsibilities; esp., ofor relating to the national
government of the United States. -Abbr. Fed.
Federal Acquisition Regulation. (usu. pI.) A federal
regulation that governs contracting methods, require
ments, and procedures with the federal government. 48
CFR ch. 1. Also termed Federal Procurement Regula
tion. [Cases: United States C=>64.5.]
federal act. A statute enacted by the U.S. Congress. See
FEDERAL LAW.
federal agency. See AGENCY (3).
federal appeal. See APPEAL.
Federal Appendix. A set of reports containing all the
full-text "unpublished" opinions that West receives
from the federal circuit courts of appeals. -These
are the opinions not designated for publication in the
Federal Reporter. Coverage began January 1, 2001.
Abbr. Fed. Appx.
Federal Arbitration Act. A federal statute providing
for the enforcement of private agreements to arbitrate
disputes related to interstate commercial and maritime
matters. Under the Act, arbitration agreements are
enforced in accordance with their terms, just as other
contracts are. The Act supersedes substantive state laws
that frustrate enforcement of arbitration agreements
but does not apply to matters of procedure. 9 USCA
1-16. Abbr. FAA. -Also termed United States
Arbitration Act. [Cases: Alternative Dispute Resolu
tion C=> 114.]
Federal Aviation Act. A federal law establishing the
Federal Aviation Administration (FAA) to be respon
sible for regulation of aircraft and air travel, including
aircraft safety, certification of aircraft personnel, and
airport development. 49 USCA 44720 et seq. [Cases:
Aviation (;.;;)32.]
Federal Aviation Administration. The federal agency
charged with regulating air commerce, promoting civil
aviation and a national system of airports, achieving
efficient use of navigable airspace, developing and
operating a common system of air-traffic control and
air navigation, and developing and implementing
programs and regulations relating to environmental
effects ofcivil aviation . The Federal Aviation Agency
was established in 1958.49 USCA 106. Its name was
changed when it became a part of the Department of
Transportation in 1967. The FAA was formerly charged
with promoting safety in air transportation, but that
task was transferred to the Transportation Security
Administration after the terrorist attacks of 11 Sept.
2001. Abbr. FAA. -Formerly also termed Federal
Aviation Agency. [Cases: Aviation
Federal Aviation Regulation. (usu. pi.) A federal regu
lation governing the safety, maintenance, and piloting
of civil aircraft. 14 CFR ch. 1. -Abbr. FAR. [Cases:
Aviation e=123.l.j Federal Deposit Insurance Corporation
Federal Bureau ofInvestigation. A division of the U.S.
Department ofJustice charged with investigating all
violations of federal laws except those speCifically
aSSigned to another federal agency. Abbr. FBI.
Federal Bureau of Prisons. The U.S. government unit
responsible for the custody and care of federal offend
ers, whether incarcerated in federal correctional and
detention centers or in state-run or privately operated
facilities. The Bureau was established in 1930 to cen
tralize federal-prison administration and ensure con
sistency in prison operations. [Cases: Prisons
federal census. See CENSUS.
Federal Circuit. See COURT OF APPEALS FOR THE
FEDERAL CIRCUIT.
federal citizen. See CITIZEN.
Federal Claims, U.S. Court of. See UNITED STATES
COURT OF FEDERAL CLAIMS.
federal-comity doctrine. (1976) The principle requir
ing federal district courts to refrain from interfering in
each other's affairs. [Cases: Federal Courts C=> 1143.]
federal common law. See COMMON LAW (1).
Federal Communications Commission. An indepen
dent federal commission that regulates interstate and
foreign communications by radio, television, wire,
satellite, and cable. The commission was created by
the Communications Act of 1934.47 USCA 151 et
seq. Abbr. FCC. [Cases: Telecommunications
612.]
Federal Computer Fraud and Abuse Act. A law estab
lishing civil liability for gaining unauthorized access
to a computer and causing damage to that computer.
_ Damage is statutorily defined to include harm to the
computer's data, programs, systems, and information
either by compromising integrity or by impairing avail
ability. Abbr. FCFAA. [Cases: Telecommunications
C=>1342.]
federal court. See COURT.
federal crime. (1860) A criminal offense under a federal
statute. Most federal crimes are codified in Title 18
of the U.S. Code.
Federal Crop Insurance Corporation. A federally char
tered corporation that protects farmers against finan
ciallosses from crop failure due to adverse weather
conditions. insect infestation, plant disease, floods,
fires, and earthquakes by encouraging the sale ofinsur
ance through licensed agents and brokers and by rein
suring private companies that issue insurance under
brand names. Created by the Agricultural Adjust
ment Act of 1938. the Corporation operates under the
general supervision ofthe Secretary ofAgriculture.
Abbr. FCrc.
Federal Deposit Insurance Corporation. A federal
corporation that protects bank and thrift deposits by
insuring accounts up to $100,000, examining banks
that are not members of the Federal Reserve System,
and liquidating failed institutions . It was established
686 Federal Election Commission
in 1933 and began insuring banks in 1934. -Abbr.
FDIC. [Cases: Banks and Banking C=501-508.]
Federal Election Commission. A ten-member inde
pendent federal commission that certifies payments
to qualifying presidential campaigns in primary and
general elections and to national-nominating conven
tions, audits campaign expenditures, and enforces
laws requiring public disclosure of financial activities
of presidential campaigns and political parties . It was
established by the Federal Election Campaign Act of
1971. 2 USCA 437c. Abbr. FEC. [Cases: Elections
C='309.]
Federal Emergency Management Agency. A unit in
the Department of Homeland Security responSible for
coordinating all emergency-preparedness activities of
the federal government through its ten regional offices.
FEMA also operates the National Flood Insurance
Program and is responSible for fire protection and
arson control. It was established as an independent
agency by Executive Order 12127 of 31 Mar. 1979
and became a unit in the Department of Homeland
Security in 2003. Abbr. FEMA. [Cases: United States
C=82(5).j
Federal Employees' Compensation Act. A workers'
compensation law for federal employees. 5 USCA
8101-8152 Abbr. FECA. See WORKERS' COMPENSA
TION. [Cases: Workers' Compensation C=262, 374.]
federal-employer-identification number. See TAX-IDEN
TIFICATION NUMBER.
Federal Employers' Liability Act. A workers'-compen
sat ion law that provides death and disability benefits
for employees of railroads engaged in interstate and
foreign commerce. 45 USCA 51-60 -Abbr. FELA.
[Cases: Labor and Employment ~2572; Workers'
Compensation
federal enclave. See ENCLAVE.
Federal Energy Regulatory Commission. An indepen
dent five-member commission in the U.S. Department
ofEnergy responsible for licensing hydroelectric-power
projects and for setting interstate rates on (1) transport
ing and selling natural gas for resale, (2) transporting
and selling electricity at wholesale, and (3) transport
ing oil by pipeline. _ Itwas created by the Department
ofEnergy Organization Act of 1977. As enforcer ofthe
Natural Gas Act, it succeeded the Federal Power Com
mission. -Abbr. FERC. [Cases: Electricity C=1; Gas
Federal Farm Credit Bank. One of a svstem of feder
ally chartered institutions created to p~ovide credit to
farm-related enterprises . The banks resulted from a
merger of federal land banks and federal intermediate
credit banks. They are supervised by the Farm Credit
Administration. [Cases: United States C-=>53(7).]
Federal Farm Credit Banks Funding Corporation. A
federal corporation that man |
-=>53(7).]
Federal Farm Credit Banks Funding Corporation. A
federal corporation that manages the sale of Federal
Farm Credit System securities in the money and capital
markets and also provides advisory services to banks
in the Federal Farm Credit System. Federal Farm Credit System. The national cooperative
system of banks and associations providing credit to
farmers, agricultural concerns, and related businesses.
The system consists of the banks for cooperatives,
the farm credit banks, and the Federal Farm Credit
Banks Funding Corporation. It is supervised by the
Farm Credit Administration and was Originally capi
talized by the federal government. The system is now
self-funding and owned by its member-borrowers.
[Cases: United States C=53(7).]
Federal Food Stamp Act. A federally funded program
that provides needy families with financial assistance in
obtaining a nutritionally adequate diet. The Secretary
of Agriculture administers the Act. [Cases: Agricul
ture~2.6.J
federal-funds rate. The interest rate at which banks lend
to each other overnight. ]he loans are usu. made by
banks with excess reserves to those with temporarily
insufficient reserves. Often shortened to fed funds.
Also termed fed-funds rate.
federal government. See GOVERNMENT.
Federal Highway Administration. An agency in the U.S.
Department of Transportation responsible for granting
aid to states for highway construction and improve
ment; providing matching grants to states for highway
safety programs; uniformity among the states
in commercial motor-carrier registration and taxation;
regulating the safety of motor carriers operating in
interstate commerce; and training employees of state
and local agencies engaged in highway work backed
by federal aid. Abbr. FHWA. [Cases: Highways
99.1.]
Federal Home Loan Bank. One of 12 federally char
tered banks created in 1932 to extend secured loans
(advances) to savings institutions that are members
of the system and to community financial institu
tions that finance small businesses, small farms, and
small agribusinesses . The banks are supervised by
the Federal Housing Finance Board. -Abbr. FHLB.
Sometimes shortened to home loan bank. [Cases: Banks
and Banking
Federal Home Loan Bank Board. See FEDERAL HOUSING
FINANCE BOARD.
Federal Home Loan Mortgage Corporation. A corpo
ration that purchases both conventional and federally
insured first mortgages from members of the Federal
Reserve System and other approved banks. -Abbr.
FHLMC. -Also termed Freddie Mac.
Federal Housing Administration. The HCD division
that encourages mortgage lending by insuring mortgage
loans on homes meeting the agency's standards. -
Abbr. FHA. See DEPARTMENT OF HOUSING AND URBAN
DEVELOPMENT. [Cases: United States C:::>82(3.3).]
Federal Housing Finance Board. A five-member
independent federal board that supervises the 12
Federal Home Loan Banks . Formerlv known as the
Federal Home Loan Bank Board, it wa~ established by
the Federal Home Loan Bank Act of 1932. That Act
was amended by the Financial Institutions Reform,
Recovery, and Enforcement Act of 1989. 12 USCA
1421 et seq.
federal instrumentality, n. L A means or agency used
by the national government. [Cases: United States
53.] 2. A national agency or other entity immune from
state control.
Federal Insurance Contributions Act. The federal act
imposing the sOcial-security tax on employers and
employees. IRC (26 USCA) 3101-3127. Abbr.
FICA. [Cases: Internal Revenue C=::>4376, 4377.]
federal intermediate credit bank. See BANK.
federalism. (1787) The legal relationship and distribution
of power between the national and regional govern
ments within a federal system ofgovernment.
cooperative federalism. (1947) Distribution ofpower
between the federal government and the states in
which each recognizes the powers of the other while
jointly engaging in certain governmental functions.
[Cases: States C:::)4.19.]
ourfederalism. See OUR FEDERALISM.
Federalist Papers. A series of85 essays written by Alex
ander Hamilton, John Jay, and James Madison (under
the pseudonym Publius) expounding on and advocat
ing the adoption of the U.S. Constitution . Most of
the essays were published in 1787 and 1788. Also
termed The Federalist.
Federalist Society. A national association oflawyers, law
students, and others committed to conservative and
libertarian viewpoints on political and social matters .
The group is based in Washington, D.C. Cf. NATIONAL
LAWYERS GUILD.
Federal Judicial Center. An agency in the judicial branch
of the federal government responSible for research
ing judicial administration and for training judges
and employees of the federal judiciary . Its director
is appointed by a seven-member board presided over
by the Chief Justice of the United States. 28 USCA
620. -Abbr. FJC.
Federal Judicial Code. The portion (Title 28) of the
U.S. Code dealing with the organization, jurisdiction,
venue, and procedures of the federal court system, as
well as court personnel, and the Department
of Justice.
federal jurisdiction. See rURISDICTION.
federal-juvenile-delinquency jurisdiction. See JURIS
DICTION.
Federal Kidnapping Act. A federal law punishing kid
napping for ransom or reward when the victim is trans
ported interstate or internationally . The law presumes
that a victim has been transported in violation of the
law if the victim is not released within 24 hours. The
Federal Kidnapping Act, by express provision, does not
apply to the kidnapping of a minor by either parent.
The law was enacted in 1932 after the son of aviator
Charles Lindbergh was kidnapped and murdered.
For this reason, it is also termed the Lindbergh Act. 18 USCA 1201. -Also termed Lindbergh Act. Cf.
PARENTAL KIDNAPPING PREVENTION ACT. [Cases: Kid
napping C=::> 14.]
"The Federal Kidnapping Act was passed in 1932 to dose a
dangerous loophole between state and federal law. At that
time, marauding bands of kidnappers were preying upon
the wealthy with ruthless abandon, seizing their victims
for ransom while operating outside the reach of existing
state laws. Knowing that authorities in the victim's home
state were powerless once a hostage was transported
across state lines, the criminals would kidnap their target
in one state, then move quickly to the next. In response,
Congress made kidnapping a federal crime when the victim
was moved from one state to another, and comprehensive
language was used to cover every possible variety of kid
napping followed by interstate transportation." 1 Am. Jur.
2d Abduction and Kidnapping 14, at 185 (1994).
Federal Labor Relations Authority. An agency that
protects the right of federal employees to organize,
engage in collective bargaining, and select their own
union representatives . Itwas established under Reor
ganization Plan No.2 of 1978 and began operating in
1979.5 USCA 7101-35. -Abbr. FLRA. [Cases: Labor
and Employment c=::>1650.]
federal labor union. See UNION.
federal land. See LAND.
Federal Land Bank. (1914) One of a system of 12 regional
banks created in 1916 to provide mortgage loans to
farmers. The system is now merged with federal inter
mediate credit banks to create the Federal Farm Credit
System. [Cases: Banks and Banking United
States C=::>S3(7).]
federal law. (18c) The body oflaw consisting of the U.S.
Constitution, federal statutes and regulations, U.S.
treaties, and federal common law. Cf. STATE LAW.
Federal Law Enforcement Training Center. An inter
agency law-enforcement training facility responsible
for serving over 70 law-enforcement organizations in
the federal government. The Center was transferred
from the Department of the Treasury to the Depart
ment of Homeland Security in 2003. Abbr. FLETC.
federal magistrate. UNITED STATES MAGISTRATE
rUDGE.
Federal Maritime Commission. An independent federal
agency that regulates the waterborne foreign and
domestic commerce ofthe United States by (1) ensuring
that U.S. international trade is open to all countries on
fair and equitable terms, (2) guarding against unau
thorized monopolies in U.S. waterborne commerce,
and (3) ensuring that financial responsibility is main
tained to clean up oil spills and indemnify injured pas
sengers. The Agency was established in 1961. Its five
commissioners are appointed by the President with the
advice and consent of the Senate. -Abbr. FMC. [Cases:
Shipping C=::>3, 14.]
Federal Maritime Lien Act. A statute that confers an
automatic lien on anyone who provides a vessel with
of a wide range of goods and services. 46 USCA
-Abbr. FMLA. [Cases: Maritime Liens
688 Federal Mediation and Conciliation Service
Federal Mediation and Conciliation Service. An inde
pendent federal agency that tries to prevent the inter
ruption of interstate commerce that could result from
a labor-management dispute by helping the parties
reach a settlement without resorting to a job action or
strike. The Service can intervene on its own author
ityor at the request of a party to the dispute. It also
helps employers and unions select qualified arbitrators.
The Service was established by the Labor Management
Relations Act of 1947.29 USCA 172. Abbr. FMCS.
Cf. NATIONAL MEDIATION BOARD.
Federal Mine Safety and Health Review Commis
sion. An independent five-member commission that
(1) monitors compliance with occupational safety and
health standards in the nation's surface and under
ground coal, metal, and nonmetal mines, and (2)
adjudicates disputes that arise under the Federal Mine
Safety and Health Amendments Act of 1977. It was
established in 1977.30 USCA 801 et seq. -Abbr.
FMSHRC. [Cases: Labor and Employment C=>2571.J
Federal Motor Carrier Safety Administration. A unit in
the U.S. Department ofTransportation responsible for
regulating the operation oflarge trucks and buses.
Abbr. FMCSA. [Cases: Automobiles C=> 116, 127.]
Federal National Mortgage Association. A privately
owned and managed corporation chartered by the
U.S. government that provides a secondary mortgage
market for the purchase and sale of mortgages guaran
teed by the Veterans Administration and those insured
under the Federal Housing Administration. -Abbr.
FNMA. Also termed Fannie Mae. [Cases: United
States
Federal Parent Locator Service. A federal program
created to help enforce child-support obligations . In
an effort to increase the collection of child support,
Congress authorized the use of all information con
tained in the various federal databases to help locate
absent, delinquent child-support obligors. Although
initially information could be released only if the
family was receiving public assistance, any judgment
obligee can now apply to receive the last known address
ofa delinquent child-support obligor. 42 USCA 653.
Abbr. FPLS.
Federal Power Commission. See FEDERAL ENERGY REG
ULATORY COMMISSION.
federal preemption. See PREEMPTION (5).
federal prison camp. A federal minimum-security deten
tion facility . Federal prison camps, which often do
not have walls or fences, usu. house nonviolent inmates
who are serving sentences shorter than a year plus one
day and who are not considered escape risks.
Federal Procurement Regulation. See FEDERAL ACQUI
SITION REGULATION.
Federal Protective Service. A law-enforcement agency
in the U.S. Department ofHomeland Security respon
sible for protecting ambassadors, diplomatic staffs,
and embassy property . It was transferred from the
General Services Administration in 2003. federal question. In litigation, a legal issue involving
the interpretation and application ofthe U.S. Consti
tution, an act of Congress, or a treaty . Jurisdiction
over federal questions rests with the federal courts. 28
USCA 1331. [Cases: Federal Courts (;~161-247.]
federal-question jurisdiction. See rURISDICTION.
Federal Railroad Admiuistration. A unit in the U.S.
Department of Transportation responsible for promul
gating and enforcing rail-safety regulations; adminis
tering rail-related financial-aid programs; conducting
research on rail safety; and rehabilitating rail passen
ger service for the Northeast corridor. Abbr. FRA.
[Cases: RailroadsC=>223.]
Federal Register. A daily publication containing presi
dential proclamations and executive orders, federal
agency regulations of general applicability and legal
effect, proposed agency rules, and documents required
by law to be published . The Federal Register is pub
lished by the National Archives and Records Adminis
tration. -Abbr. Fed. Reg. [Cases: Administrative Law
and Procedure <::=:'407.]
federal regulations. See CODE OF FEDERAL REGULA
TIONS.
Federal Reporter. See F. (1).
Federal Reporter Second Series. See F.2D.
Federal Reporter Third Series. See F.3D.
Federal Reserve Board of Governors. The board that
supervises the Federal Reserve System and sets national
monetary and credit policy . The board consists of
seven members nominated by the President and con
firmed by the Senate for 14-year terms. Often short
ened to Federal Reserve Board. Abbr. FRB.
federal reserve note. |
for 14-year terms. Often short
ened to Federal Reserve Board. Abbr. FRB.
federal reserve note. (1913) The paper currency in cir
culation in the United States . Non-interest-bear
ing promissory notes are payable to their bearer on
demand. The Federal Reserve Banks issue the notes in
denominations of $1, $2, $5, $10, $20, $50, and $100.
Until 1945, the United States Mint also printed $500,
$1,000, $5,000, and $10,000 bills. Although the Federal
Reserve System discontinued using bills larger than
$100 in 1969, the outstanding bills remain legal tender.
31 USCA 5103. Cf. GOLD CERTIFICATE; SILVER CER
TIFICATE.
Federal Reserve System. The central bank that sets
credit and monetary policy by fixing the reserves to be
maintained by depository institutions, determining the
discount rate charged by Federal Reserve Banks, and
regulating the amount of credit that may be extended
on any security. The Federal Reserve System was
established by the Federal Reserve Act of 1913. 12
USCA 221. It comprises 12 central banks supervised
by a Board of Governors whose members are appOinted
by the President and confirmed by the Senate. -Abbr.
FRS; Fed. [Cases: Banks and Banking C=>351-359.]
"The Federal Reserve System of 1913 evolved out of a
search for consensus among bankers, politicians, and
some academic experts. It was a move toward 'central
bank' regulation in the European sense .... [The System]
689
seemed to resolve the outstanding problems in money
and banking. Federal Reserve banknotes could grow with
expanding commercial paper and economic prosperity,
and assure a more adequate, reliable monetary growth."
William A. Lovett, Banking and Finane/a/Institutions Law
in a Nutshell 14-15 (1997).
Federal Retirement Thrift Investment Board. A board
that administers the Thrift Savings Plan that allows
federal employees to save additional funds for retire
ment. It was established in 1986. 5 USCA 8472. -
Abbr. FRTIB. [Cases: United States ~39(15).1
Federal Rules Decisions. See F.R.D.
Federal Rules Enabling Act. A 1934 statute granting
the U.S. Supreme Court the authority to adopt rules of
civil procedure for federal courts . For the rulemak
ing power offederal courts today, see 28 USCA 2071,
2072. See also Fed. R. Civ. P. 83; Fed. R. Crim. P. 57.
[Cases: Federal Civil Procedure~31.J
Federal Rules of Appellate Procedure. The rules gov
erning appeals to the U.S. courts ofappeals from lower
courts, some federal-agency proceedings, and applica
tions for writs. -Abbr. Fed. R. App. P.; FRAP. [Cases:
Federal Courts ~522.1
Federal Rules of Bankruptcy Procedure. The rules gov
erning proceedings instituted under the Bankruptcy
Code. Abbr. Fed. R. Bankr. P. [Cases: Bankruptcy
Federal Rules of Civil Procedure. Ihe rules governing
civil actions in the U.S. district courts. Abbr. Fed.
R. Civ. P.; FRCP. [Cases: Federal Civil Procedure
"Chief Justice Hughes in 1935 appointed fourteen lawyers
and law teachers as the Advisory Committee for the Federal
Rules of Civil Procedure, with William D. Mitchell, former
Attorney General, as chairman, and Charles E. Clark, then
dean of the Yale Law School, as reporter, to recommend
a draft of rules uniting law and equity. The committee
proposed a system of rules that was approved by the Court
with certai n changes. In accordance with the Enabling Act,
the rules were submitted to Congress for its acquiescence
and, Congress having taken no exception to them, they
became effective September 16, 1938.
"The rules thus produced bear the unmistakable imprint
of the reporter, Charles E. Clark, and represent the largest
single accomplishment in American civil procedure since
the Field Code of 1848. Although they were not perfect and
have been amended many times, experience with them has
on the whole been satisfactory, and more than half of the
states have adopted them in their entirety or in large part."
Fleming James, Geoffrey C. Hazard Jr. &John Leubsdorf,
Civil Procedure 1.8, at 24-25 (5th ed. 2001).
Federal Rules ofCriminal Procedure. The rules govern
ing criminal proceedings in the U.S. district courts. -
Abbr. Fed. R. Crim. P. [Cases: Federal Civil Procedure
Federal Rules of Evidence. The rules governing the
admiSSibility ofevidence at trials in federal courts. -
Abbr. Fed. R. Evid.; FRE. [Cases: Federal Civil Proce
dure
Federal Savings and Loan Insurance Corporation. A
federal agency created in 1934 to insure deposits in
savings-and-loan associations and savings banks. Federal Trademark Dilution Act
When this agency became insolvent in 1989, its assets
and liabilities were transferred to an insurance fund
managed by the FDIC. -Abbr. FSLIC. See RESOLU
TION TRUST CORPORATION. [Cases: Building and Loan
Associations
federal sentencing guidelines. See UNITED STATES SEN
TENCING GUIDELINES.
federal state. See STATE.
federal statute. See FEDERAL ACT.
Federal Supplement. See F.SUPP.
Federal Supplement 2d. See F-S'tJPP.2D.
Federal Supply Service. A unit in the General Services
Administration responSible for providing supplies to
federal agencies worldwide . In procuring supplies the
agency takes advantage ofthe government's aggregate
buying power. Abbr. FSS.
Federal Technology Service. A unit in the General
Services Administration that provides communica
tions services worldwide to other federal departments
and agencies. Abbr. FTS.
Federal Tort Claims Act. A statute that limits federal
sovereign immunity and allows recovery in federal
court for tort damages caused by federal employees,
but only ifthe law of the state where the injury occurred
would hold a private person liable for the injury. 28
USCA 2671-2680 -Abbr. FTCA. See sovereign
immunity under IMMUNITY (1). [Cases: United States
<:::=78.J
"Although it has been suggested that the maxim, 'the King
can do no wrong' never had an existence in the United
States, it has also been declared that in enacting the
Federal Tort Claims Act, Congress recognized the manifold
injustice that springs from the delimiting effect of the rule
represented by that maxim. And it is said that in passing
the Act, Congress intended to compensate the victims of
negligence in the conduct of governmental activities in
circumstances in which a private person would be liable,
rather than leave just treatment to the caprice and legisla
tive burden of individual private laws, and to eliminate the
burden on Congress of investigating and passing on private
bills seeking individual relief." 35 Am. Jur. 2d Federal Tort
Claims Act 1, at 296 (1967).
Federal Trade Commission. An independent five-mem
ber federal commission that administers various laws
against business monopolies, restraint of trade, and
deceptive trade practices . It was established by the
Federal Trade Commission Act of 1914. 15 USCA
41-58. The Commission's body of rulings reaches into
many state-law actions because many so-called "Little
FTC Acts" of the states specify that FTC interpretations
should provide a model for state-court decisions.
Abbr. FTC. [Cases: Antitrust and Trade Regulation
~300.J
Federal Trademark Act. See LANHAM ACT.
Federal Trademark Dilution Act. A 1995 amendment to
the Lanham Act (Trademark Act of 1946) that provides
additional remedies against the dilution of famous
trademarks. 15 USCA 1125(c). -Sometimes short
ened to Dilution Act. Abbr. FTDA. [Cases: Trade
marks 0=>1450-1473.J
federal transfer. The federal district court's right to
move a civil action filed there to any other district or
division where the plaintiff could have brought the
action originally. 28 USCA 1404(a). See CHANGE OF
VENUE. [Cases: Federal Courts C=>101-146, 1152.]
Federal Transit Administration. A unit in the U.S.
Department ofTransportation responsible for increas
ing public-transit ridership through demonstration
projects and financial assistance. -Abbr. FTA.
Federal Unemployment Tax Act. The federal statute
requiring employers to remit taxes based on employ
ees' wages and salaries. 18 USCA 1201 et seq. -Abbr.
FUTA. [Cases: Internal Revenue C=>4351.]
federation. (18c) A league or union ofstates, groups, or
peoples united under a strong central authority but
retaining limited regional sovereignty, esp. over local
affairs. Cf. CONFEDERATION.
fed funds. See FEDERAL FUNDS RATE.
fed-funds rate. See FEDERAL FUNDS RATE.
Fed. R. App. P. abbr. FEDERAL RULES OF APPELLATE
PROCEDURE.
Fed. R. Bankr. P. abbr. FEDERAL RULES OF BANKRUPTCY
PROCEDURE.
Fed. R. Civ. P. abbr. FEDERAL RULES OF CIVIL PROCE
DURE.
Fed. R. Crim. P. abbr. FEDERAL RULES OF CRIMINAL
PROCEDURE.
Fed. Reg. abbr. FEDERAL REGISTER.
Fed. R. Evid. abbr. FEDERAL RULES OF EVIDENCE.
Fed Wire. The Federal Reserve's computer network
that allows nearly instantaneous domestic money and
securities transfers among the Federal Reserve's offices,
depository institutions, the U.S. Treasury, and other
government agencies. [Cases: Banks and Banking C=>
188.5.]
fee. (14c) 1. A charge for labor or services, esp. profes
sional services.
attorney's fees. See ATTORNEY'S FEES.
contingentfee. See CONTINGENT FEE.
docket fee. (1836) A fee charged by a court for filing
a claim.
expert-witness fee. A fee paid for the professional
services ofan expert witness. [Cases: Costs C=> 187.]
fixed fee. (18c) 1. A flat charge for a service; a charge
that does not vary with the amount of time or effort
required to complete the service. 2. In a construction
contract, a predetermined amount that is added to
costs for calculating payments due under the contract.
[Cases: Contracts C=>231(1).]
franchise fee. (1894) 1. A fee paid by a franchisee to a
franchisor for franchise rights . Franchise fees are
regulated by state laws. 2. A fee paid to the govern
ment for a government grant of a franchise, such as
the one required for operating a radio or television
station. [Cases: Telecommunications C=>798, 1215.] juryfee. (1806) A fee, usu. a minimal one, that a party
to a civil suit must pay the court clerk to be entitled
to a jury trial. [Cases: Jury C=>26.]
loan-origination fee. A fee charged by a lender to cover
the administrative costs of making a loan.
maintenance fee. See MAINTENANCE FEE.
management fee. A fee charged by an investment
manager for supervisory services.
origination fee. (1921) A fee charged by a lender for pre
paring and processing a loan. [Cases: Usury C=>53.]
probate fee. Compensation paid with a probate court's
approval to an attorney who performs probate-related
services to the estate. [Cases: Executors and Admin
istrators C=>216(2).]
success fee. A bonus paid to a representative who
performs exceptionally well in gaining favorable
results; esp., a bonus that a client pays to an attorney if
the attorney obtains something ofvalue to the client.
For instance, a client might agree to pay a success
fee for success in litigation, for favorable negotiations
in a transaction, or for the successful conclusion of
a corporate merger, acquisition, or loan. See CONDI
TIoNAL FEE AGREEMENT. [Cases: Attorney and Client
C=>130,143.]
witness fee. 1. A statutory fee that must be tendered with
a subpoena for the subpoena to be binding. [Cases:
Witnesses C=>23.] 2. A fee paid by a party to a witness
as reimbursement for reasonable expenses (such as
travel, meals, lodging, and loss of time) incurred as
a result of the witness's having to attend and testify
at a deposition or trial. Any other payment to a
nonexpert witness is considered unethical. -Also
termed (in English law) conduct money. Cf. expert
witness fee.
2. A heritable interest in land; esp., a fee simple
absolute. -Also termed fee estate; feod; feodum; feud;
feudum;fief See FEE SIMPLE. Cf. FEU. [Cases: Estates in
Property C=>5-7.]
"To enfeoff someone was to transfer to him an interest in
land called a fief -or, if you prefer, a feoff, feod, or feud.
Our modern word fee, a direct lineal desc |
ief -or, if you prefer, a feoff, feod, or feud.
Our modern word fee, a direct lineal descendant of fief,
implies the characteristic of potentially infinite duration
when used to describe an interest in land today; but in the
earliest part of the feudal period, a fiefmight have been as
small as a life interest. We shall see later that feoffment was
not used to transfer interests 'smaller' than life interests
e.g., so-called terms for years -but for our purposes now
we may simply note that transfers of interests for life or
'larger' were accomplished by livery of seisin." Thomas F.
Bergin & Paul G. Haskell, Preface to Estates in Land and
Future Interests 11 (2d ed. 1984).
arriere fee (ar-ee-air or ar-ee-;Jr). Hist. A fee dependent
on a superior one; a subfief. -Also termed arriere
fief
base fee. (16c) A fee that has some qualification con
nected to it and that terminates whenever the qual
ification terminates. An example of the words
creating a base fee are "to A and his heirs, tenants of
the manor of Tinsleydale," which would terminate
when A or his heirs are no longer tenants ofthe manor
691
of Tinsleydale. Among the base fees at common law
are the fee simple subject to a condition subsequent
and the conditional fee. -Also termed determinable
fee; qualified fee; limited fee. Seefee simple determin
able under FEE SIMPLE.
"A base fee is a particular kind of determinable fee, The two
essentials of a base fee are (a) it continues only so long as
the original grantor or any heirs of his body are alive; and
(b) there is a remainder or reversion after it, , , , In effect
a base fee was a fee simple which endured for as long as
the entail would have continued if it had not been barred,
and determined when the entail would have ended," Robert
E, Megarry & M,P. Thompson, A Manual of the Law of Real
Property 38-40 (6th ed. 1993),
determinable fee. See base fee.
fee expectant. Rare. A fee tail created when land is
given to a man and wife and the heirs oftheir bodies.
See FRANKMARRIAGE.
fee simple. See FEE SIMPLE.
fee tail. See FEE TAIL.
great fee. Hist. In feudal law, a fee received directly
from the Crown.
knight'sfee. See KNIGHT'S FEE.
layfee. Hist. A fee interest in land held by ordinary
feudal tenure, such as socage, rather than byeccle
siastical tenure through frankalmoin. See FRA~KA
LMOIN; SOCAGE.
limited fee. See base fee.
plowman's fee. Rist. A species of tenure for peasants or
small farmers by which the land descended in equal
shares to all the tenant's sons.
qualified fee, See base fee.
quaSi-fee. Hist. An estate in fee acquired wrongfully.
fee damages. See DAMAGES.
feeder organization. Tax. An entity that conducts a
business or trade for the benefit of a tax-exempt orga
nization . The feeder organization is not tax-exempt.
IRC (26 USCA) 502. [Cases: Internal Revenue C:=>
4067.]
fee estate. See FEE (2).
fee farm. Rist. A species of tenure in which land is held
in perpetuity at a yearly rent (fee-farm rent), without
fealty, homage, or other services than those in the
feoffment. Also termed feodi firma;firma feodi. See
EMPHYTEUSIS.
"Now to all appearance the term socage, a term not found
in Normandy, has been extending itself upwards; a name
appropriate to a class of cultivating peasants has begun to
include the baron or prelate who holds land at a rent but
is not burdened with military service. , , . He is sometimes
said to have feodum censuale: far more commonly he is
said to hold 'in fee farm.' This term has difficulties of its
own, for it appears in many different guises; a feoffee is
to hold in feofirma, in fel,lfirmam, in fedfirmam, in feudo
firmam, in feudo firma, ad firmam feadalem, but most
commonly, in feadi firma. The Old English language had fee simple
whatever may be the precise history of the phrase, to hold
in fee farm means to hold heritably, perpetually, at a rent;
the fee, the inheritance, is let to farm." 2 Frederick Pollock
& Frederic W. Maitland, The History of English Law Before
the Time Of Edward' 293 (2d ed. 1899).
fee-farm rent. See RENTCHARGE.
fee interest. 1. See FEE. 2. See FEE SIMPLE. 3. See FEE TAIL.
4. Oil & gas. Ownership of both the surface interest and
the mineral interest.
feemail (fee-mayl). (1994) Slang. 1. An attorney's fee
extorted by intimidation, threats, or pressure. 2. The
act or process of extorting such a fee. Cf. BLACKMAIL
(1); GRAYMAIL; GREENMAIL (I), (2).
fee-sharing. See FEE SPLITTING.
fee-shifting, n. The transfer of responsibility for paying
fees, esp. attorney's fees, from one party to another. See
AMERICAN RULE (1); ENGLISH RULE. [Cases: Internal
Revenue C:=>4351.j
fee simple. (l5c) An interest in land that, being the
broadest property interest allowed by law, endures
until the current holder dies without heirs; esp., a fee
simple absolute. -Often shortened to fee. -Also
termed estate in fee simple; tenancy in fee; fee-Simple
title; exclusive ownership;feudum simplex. See AND HIS
HEIRS. [Cases: Estates in Property~--:;5-7.1
"[Fee simple] is a term not likely to be found in modern
conversation between laymen, who would in all probabil
ity find it quite unintelligible, Yet to a layman of the 14th
century the term would have been perfectly intelligible,
for it refers to the elementary social relationship of feudal,
ism with which he was fully familiar: the words 'fee' and
'feudal' are closely related ... , The estate in fee simple
is the largest estate known to the law, ownership of such
an estate being the nearest approach to ownership of the
land itself which is consonant with the feudal principle of
tenure, It is 'the most comprehensive estate in land which
the law recognises'; it is the 'most extensive in quantum,
and the most absolute in respect to the rights which it
confers, of all estates known to the law', Traditionally, the
fee simple has two distinguishing features: first, the owner
('tenant' in fee simple) has the power to dispose of the fee
simple, either inter vivos or by Will; second, on intestacy
the fee simple descends, in the absence of lineal heirs, to
collateral heirs to a brother, for example, if there is no
issue," Peter Butt, Land Law 35 (2d ed. 1988).
"Fee simple. Originally this was an estate which endured for
as long as the original tenant or any of his heirs survived.
'Heirs' comprised any blood relations, although originally
ancestors were excluded; not until the Inheritance Act 1833
could a person be the heir of one of his descendants. Thus
at first a fee simple would terminate ifthe original tenant
died without leaving any descendants or collateral blood
relations (e.g., brothers or cousins), even if before his death
the land had been conveyed to another tenant who was still
alive, But by 1306 it was settled that where a tenant in fee
simple alienated the land, the fee simple would continue
as long as there were heirs of the new tenant and so on,
irrespective of any failure of the original tenant's heirs,
Thenceforward a fee simple was Virtually eternal." Robert
E. Megarry & M.P. Thompson, A Manual of the Law of Real
Property 24-25 (6th ed. 1993),
both of the words of which this term is compounded, both fee simple absolute. (lSc) An estate of indefinite orfeah (property) and feorm (rent); but so had the language potentially infinite duration (e.g., "to Albert and his of France, and in Norman documents the term may be
found in various shapes, firmam fedium, feudifirmam. But, heirs"), Often shortened to fee simple or fee.
692 fee-simple title
Also termed fee simple absolute in possession. [Cases:
Estates in Property (;::=>5.)
"Although it is probably good practice to use the word
'absolute' whenever one is referring to an estate in fee
simple that is free of special limitation, condition subse
quent. or executory limitation, lawyers frequently refer to
such an estate as a 'fee simple' or even as a 'fee.'" Thomas
F. Bergin & Paul G. Haskell, Preface to Estates in Land and
Future Interests 24 (2d ed. 1984).
fee simple conditional. (l7c) An estate restricted to
some specified heirs, exclusive of others (e.g., "to
Albert and his female heirs"). -The fee simple con
ditional is obsolete except in Iowa, Oregon, and South
Carolina. -Also termed general fee conditional; COIl
ditionalfee. [Cases: Estates in Property (;::=>7.]
"The reader should be careful not to confuse this estate
with estates having similar labels, such as the 'estate in fee
simple subject to a condition subsequent' ...." Thomas
F. Bergin & Paul G. Haskell, Preface to Estates in Land and
Future Interests 29 n.19 (2d ed. 1984).
fee simple defeasible (di-fee-z<l-b<ll). (I8c) An estate
that ends either because there are no more heirs of
the person to whom it is granted or because a special
limitation, condition subsequent, or executory limita
tion takes effect before the line of heirs runs out.
Also termed defeasible fee simple; qualified fee. [Cases:
Estates in Property (;::=>6.]
fee simple determinable. (18c) An estate that will
automatically end and revert to the grantor ifsome
specified event occurs (e.g., "to Albert and his heirs
while the property is used for charitable purposes");
an estate in fee simple subject to a special limitation.
_ The future interest retained by the grantor is called
a possibility ofreverter. -Also termed determinable
fee; qualified fee;fee simple subject to common-law
limitation;fee Simple subject to speciallimitation;fee
simple subject to special interest; base fee; estate on
limitation. [Cases: Estates in Property (;::=>6.]
"In theory, it should be easy to determine whether an
instrument creates a fee simple determinable or a fee
simple subject to a condition subsequent. If the instrument
includes a special limitation (introduced by words such as
'so long as' or 'until') it creates a fee simple determinable,
whether or not it also includes an express reverter clause.
If the instrument includes an express condition or proviso
('on condition that' or 'provided that') and an express right
to re-enter for breach of the stated condition, it creates a
fee simple subject to a condition subsequent. But deeds
and wills often fail to employ the appropriate words to
create one of the twO types of defeasible estate or the
others. Instead deeds and wills often contain a confusing
mixture of words appropriate for creation of both types of
defeasible estate." William B. Stoebuck & Dale A. Whitman,
The Law of Property 43 (3d ed. 2000).
fee simple subject to a condition subsequent. (1874) An
estate subject to the grantor's power to end the estate
if some specified event happens (e.g., "to Albert and
his heirs, upon condition that no alcohol is sold on
the premises"). _ The future interest retained by the
grantor is called a power oftermination (or a right of
entry). -Also termed fee simple on a condition sub
sequent; fee simple subject to a power oftermination;
fee simple upon condition. [Cases: Estates in Property
C~:::07.] fee simple subject to an executory limitation. (1856)
A fee simple defeasible that is subject to divestment
in favor ofsomeone other than the grantor ifa speci
fied event happens (e.g., "to Albert and his heirs, but
if the property is ever used as a parking lot, then to
Bob"). Also termed fee simple subject to an execu
tory interest. [Cases: Estates in PropertyC=6.]
fee simple subject to a power oftermination. See fee
simple subject to a condition subsequent.
fee simple subject to common-law limitation. See fee
simple determinable.
fee simple subject to special interest. See fee simple
determinable.
fee simple subject to special limitation. See fee simple
determinable.
fee simple upon condition. See fee simple subject to a
condition subsequent.
fee-simple title. See FEE SIMPLE.
fee-splitting. I. The division ofattorney's fees between
two or more lawyers, esp. between the lawyer who
handled a matter and the lawyer who referred the
matter. _ Some states consider this practice unethi
cal. 2. The division of attorney's fees between two or
more lawyers who represent a client jointly but are not
in the same firm. -Under most states' ethics rules,
an attorney is prohibited from splitting a fee with a
nonlawyer. Also termed fee-sharing; division offees.
[Cases: Attorney and Client (;::=> 151.]
fee statement. A lawyer's bill for services either already
rendered or to be rendered, usu. including itemized
expenses.
fee tail. (15e) An estate that is heritable only by specified
descendants of the original grantee, and that endures
until its current holder dies without issue (e.g., "to
Albert and the heirs ofhis body"). -Most jurisdic
tions except Delaware, Maine, Massachusetts, and
Rhode Island have abolished the fee tail. -Also
termed entailed estate; estate tail; estate in tail; estate
in fee tail; tenancy in tail; entail;feodum talliatum. See
ENTAIL; TAIL. [Cases: Estates in PropertyC=: |
entail;feodum talliatum. See
ENTAIL; TAIL. [Cases: Estates in PropertyC=: 12.]
"The old estate tail was throughout its history invari
ably with family settlements, and in particular
with marriage settlements .... Medieval landowners sought
to achieve [familial continuity and status] by perfecting a
single estate which in itself would conform to three require
ments: (1) While it should be an estate of inheritance it
should devolve on lineal heirs only, and not on collater
als in other words that it should descend only to the
heirs ofthe body of the first (2) As a corollary, the
estate should be such that at any time the first grantee's
issue should fail the estate itself should come to an end
and the land revert to the original settlor or his heirs. (3)
No owner of the estate for the time being should have
power to dispose of the land in such a way as to prevent it
descending on his death to the next heir of the body of the
original grantee. All this was attempted by limiting land,
not to 'A and his heirs,' which would give A a fee simple,
but to 'A and the heirs ofhis body.'" 1 Stephen's Commen
taries on the Laws of Eng/and 150 (L. Crispin Warmington
ed., 21st ed. 1950).
"If we cannot resist the temptation to say that De Donis per
mitted the creation of tailormade estates, we can at least
argue that it is not a pun. Our word 'tailor' and the word
'tail,' as used in 'fee tail,' come from the same source -the
French tailler, to cut. The word 'tail' in 'fee tail' has nothing
to do with that which wags the dog. The estate in fee tail
was a cut estate -either cut in the sense that the collateral
heirs were cut out, or cut in the sense that the estate was
carved into a series of discrete life possession periods to
be enjoyed successively by A and his lineal heirs .... We
know of no state in the United States that recognizes the
estate in fee tail in its strict 1285-1472 form. Wherever it is
recognized, the tenant in tail in possession may disentail
it by simple deed." Thomas F. Bergin & Paul G. Haskell,
Preface to Estates in Land and Future Interests 30, 32 (2d
ed.1984).
fee tail general. A fee tail that is heritable by all of the
property owner's issue by any spouse . Formerly, a
grant "to A and the heirs of his body" created a fee tail
general. [Cases: Estates in Property (;:::12.J
fee tail special. A fee tail that restricts the eligibility
of claimants by requiring a claimant to prove direct
descent from the grantee and meet the special con
dition in the grant. For example, the words "to A
and the heirs of his body begotten on his wife Mary"
meant that only descendants of A and Mary could
inherit; !\s children by any other wife were excluded.
An estate tail special could also be restricted to only
male or only female descendants, as in "to A and the
heirs male of his body." [Cases: Estates in Property
12.J
feign (fayn), vb. (Be) To make up or fabricate; to make a
false show of <he feigned an illness>.
feigned, adj. Pretended; simulated; fictitious.
feigned accomplice. See INFORMANT.
feigned action. Hist. An action brought for an illegal
purpose on a pretended right. Also termed faint
action;false action.
feigned issue. Hist. A proceeding in which the parties, by
consent, have an issue tried by a jury without actually
bringing a formal action . The proceeding was done
when a court either lacked jurisdiction or was unwill
ing to decide the issue. Also termed fictitious issue.
'The chancellor's decree is either interlocutory or final. It
very seldom happens that the first decree can be final, or
conclude the cause; for, if any matter of fact is strongly
controverted, this court is so sensible of the deficiency
of trial by written depositions, that it will not bind the
parties thereby, but usually directs the matter to be tried
by jury .... But, as no jury can be summoned to attend this
court, the fact is usually directed to be tried at the bar of
the court of king's bench or at the assises, upon a feigned
issue. For. (in order to bring it there, and have the point in
dispute, and that only, put in issue) an action is feigned
to be brought, wherein the pretended plaintiff declares
that he laid a wager of 51. with the defendant that A was
heir at law to B; and then avers that he is so; and there
fore demands the 51. The defendant allows the wager, but
avers that A is not the heir to B; and thereupon the issue is
joined. , .. These feigned issues seem borrowed from the
sponsio judicialis of the Romans: and are also frequently feigned recovery. See COMMON RECOVERY.
FEIN. abbr. See TAX-IDENTIFICATION NUMBER.
Feist doctrine. (1991) Copyright. The rule that "sweat of
the brow" will not support U.S. copyright protection
in an unoriginal collection offacts. Feist Pubs. v. Rural
Tel. Servo Co., 499 U.S. 340, IllS. Ct. 1282 (1991). Cf.
SWEAT-OF-THE-BROW DOCTRINE. [Cases: Copyrights
and Intellectual Property e:-~12(2).]
FELA (fee-I;)). abbr. FEDERAL EMPLOYERS' LIABILITY
ACT.
fele (feel). [Law French] See FEAL.
fellow, n. l. One jOined with another in some legal status
or relation. 2. A member of a college, board, corporate
body, or other organization.
fellow-officer rule. (1971) Criminal procedure. The prin
ciple that an investigative stop or an arrest is valid even
ifthe law-enforcement officer lacks personal knowledge
to establish reasonable suspicion or probable cause as
long as the officer is acting on the knowledge ofanother
officer and the collective knowledge ofthe law-enforce
ment office. Also termed Whiteley rule; collective
knowledge rule. [Cases: Arrest C=>63.4(1l}.]
fellow servant. A coworker having the same employer;
esp., an employee who is so closely related to another
employee's work that there is a special risk of harm if
either one is negligent. See FELLOW-SERVANT RULE;
DIFFERENT-DEPARTMENT RULE.
superior fellow servant. A worker that has the power of
control or direction over a coworker. Also termed
superior servant.
fellow-servant rule. (1905) A common-law doctrine
holding that an employer is not liable for an employee's
injuries caused by a negligent coworker . This doctrine
has generally been abrogated by workers' -compensa
tion statutes. In some jurisdictions, employees were
considered fellow servants when they were working
with one aim or result in view. In others, the relation
of fellow servant was tested by the" doctrine of vice
principal" or the "superior-servant rule," meaning that
an employer is liable for injuries to an employee ifthey
result from the negligence of another employee who
is given power of control or direction over the injured
employee. Also termed common-employment
doctrine. Cf. DIFFERENT-DEPARTMENT RULE. [Cases:
Labor and Employment C=>2921.J
felo-de-se (fee-loh or fel-oh dee see), n. (17c) See SUICIDE
(2). PI. felones de se.
"'Felo de Sl!.,' or felon of himself is freely spoken of by the
early writers as selfmurder. Hence one who killed himself
before he arrived at the age of discretion or while he was
non compos mentis, was not a felo de se, or suicide ....
[Bly the early common law suicide was a felony and was
punished by ignominious burial and forfeiture of goods
and chattels to the king." Rollin M. Perkins & Ronald N.
Boyce, Criminal Law 120 (3d ed. 1982).
used in the courts of law, by consent of the parties, to felon, n. (l3c) A person who has been convicted of a
determine some disputed rights without the formality of felony. Also termed (redundantly) convicted felon. pleading .... 3 William Blackstone, Commentaries on the
Laws ofEngland 452 (1768). felon-de-se. See SUICIDE (2).
felonia (f;l-loh-nee-;.:,). [Latin "felony"} Hist. An offense
that results in a vassal's forfeiting his fee.
"The attempt to derive felonia from fel 'poison' is merely
a folk etymology which came into vogue when 'felony'
meant a serious crime, and differed from treason. The
word was well established in Feudal Law as the character
istic offense against the Feudal relationship. It will hardly
do, therefore, to try to determine its meaning merely by
reference to English usage ...." Max Radin, Handbook of
AngloAmerican Legal History 148 n.7 (1936).
felonious (f;.:,-loh-nee-;.:,s), adj. (l6c) 1. Of, relating to, or
involving a felony. 2. Constituting or having the char
acter ofa felony. 3. Proceeding from an evil heart or
purpose; malicious; villainous. 4. Wrongful; (of an act)
done without excuse or color of right.
felonious assault. See ASSAULT.
felonious homicide. See HOMICIDE.
felonious intent. See criminal intent under INTENT (1).
felonious restraint. (1971) 1. The offense of knowingly
and unlawfully restraining a person under circum
stances that expose the person to serious bodily harm.
Model Penal Code 212.2(a). 2. The offense ofholding
a person in involuntary servitude. Model Penal Code
212.2(b). [Cases: False Imprisonment
felon ofoneself. See SUICIDE (2).
felony, n. (l4c) 1. A serious crime usu. punishable by
imprisonment for more than one year or by death.
Examples include burglary, arson, rape, and murder.
Also termed major crime; serious crime. Cf. MISDE
MEANOR. [Cases: Criminal Law
"Felony, in the general acceptation of our English law, com
prizes every species of crime, which occasioned at common
law the forfeiture of lands or goods." 4 William Blackstone,
Commentaries on the Laws of England 94 (1769).
"Amongst indictable crimes, the common law singled
out some as being so conspicuously heinous that a man
adjudged gUilty of any of them incurred not as any
express part of his sentence but as a consequence that
necessarily ensued upon it ~ a forfeiture of property,
whether of his lands or of his goods or of both (in the case
of treason). Such crimes came to be called 'felonies.' The
other, and lesser, crimes were known as 'transgressions' or
'trespasses,' and did not obtain their present name of mis
demeanours until a much later date. A felony is, therefore,
a crime which either involved by common law such a forfei
ture, or else has been placed by statute on the footing of
those crimes which did involve it." J.W. Cecil Turner, Kennv's
Outlines ofCriminal Law 93 (16th ed. 1952).
atrocious felony. (1814) Archaic. A serious, usu. cruel
felony involving personal violence. -The common
practice today is to refer to the specific type ofcrime
alleged (e.g., first-degree murder or aggravated sexual
assault).
serious felony. (1874) A major felony, such as burglary
of a residence or an assault that causes great bodily
injury. -In many jurisdictions, a defendant's prior
serious-felony convictions can be used to enhance
another criminal charge. [Cases: Sentencing and Pun
ishment (;:::c 1254, 1276.J
substantive felony. See substantive offense under
OFFENSE (1). treason felony. See TREASON FELONY.
violent felony. See violent offense under OFFENSE (1).
2. Hist. At common law, an offense for which convic
tion results in forfeiture of the defendant's lands or
goods (or both) to the Crown, regardless of whether
any capital or other punishment is mandated. -At
early common law, the term felony included any offense
for which a defendant who fled before trial could be
summarily convicted, attainted, and outlawed, or that
carried a right of appeal after conviction. Although
treason carried the same penalties as a common-law
felony, it was usu. defined as a separate class ofcrime.
3. Hist. Feudal law. A grave act that resulted in the for
feiture ofland granted by a superior.
felony-de-se. See SUICIDE (1).
felony injury to a child. The act ofcausing or allowing a
child to suffer in circumstances likely to produce great
bodily harm or death, or inflicting unjustifiable pain
or mental suffering in those circumstances. [Cases:
Infants <8= l3.)
felony murder. See MURDER.
felony-murder rule. (1943) The doctrine holding that
any death resulting from the commission or attempted
commission of a felony is murder. -Most states restrict
this rule to inherently dangerous felonies such as rape,
arson, robbery, and burglary. Cf. MISDEMEANOR-MAN
SLAUGHTER RULE. [Cases: Homicide
"[Ilt seems fair to suggest that the future of felony murder
is uncertain. England, where the doctrine originated,
has abolished it. The Model Penal Code recommends its
abolition except for the purpose of creating a rebuttable
presumption of malice for killings perpetrated during
the course of a felony. Although most states have not yet
adopted this pOSition, many |
killings perpetrated during
the course of a felony. Although most states have not yet
adopted this pOSition, many of the judicial limitations on
felony murder discussed above seem to insure that in many
states it will be an unusual case in which one is convicted
of felony murder, who absent this doctrine, would not have
been convicted of murder." Arnold H. Loewy, Criminal Law
in a Nutshell 46 (2d ed. 1987).
FEMA. abbr. FEDERAL EMERGENCY MANAGEMENT
AGENCY.
female genital mutilation. (1979) 1. Female circumci
sion. 2. The act ofcutting, or cutting off, one or more
female sexual organs. _ Female genital mutilation is
practiced primarily among certain tribes in Africa, but
it also occurs among some immigrant populations in
the United States and in other Western nations. 'Ihere
are three commonly identified types: sunna, in which
the hood of the clitoris is cut off; excision, in which
the entire clitoris is cut off; and infibulation, in which
the clitoris, the labia minora, and much of the labia
majora are cut off. In the United States, Congress has
outlawed female genital mutilation, specifically prohib
iting the use ofa cultural defense for persons accused
of performing the act. 18 USCA 16. Abbr. FGM.
See CULTURAL DEFENSE. [Cases: Aliens, Immigration,
and Citizenship <8=533.]
fem-crit. See CRIT.
695
feme (fern), n. (16c) [Law French] Archaic. 1. A woman.
2. A wife. -Also spelled femme.
feme covert (fern k;}v-;)rt). [Law French "covered
woman"] Archaic. A married woman. _ The notion,
as Blackstone put it, was that the husband was the
one "under whose wing, protection, and cover, she
performs every thing." 1 William Blackstone, Com
mentaries on the Law of England 430 (1766). See
COVERTURE.
feme sole (fern sohl). [Law Prench) Archaic. 1. An
unmarried woman. 2. A married woman handling
the affairs of her separate estate. Also termed (in
sense 2) feme sole trader;feme sole merchant.
femicide (fem-;)-sId). (l9c) 1. The killing ofa woman. 2.
One who kills a woman.
feminist jurisprudence. See JURISPRUDENCE.
femme. See FEME.
fence, n. (14c) 1. A person who receives stolen goods,
usu. with the intent to sell them in a legitimate market.
[Cases: Receiving Stolen Goods C=:::4.]
''The receivers of stolen goods almost never 'know' that
they have been stolen, in the sense that they could testify to
it in a courtroom. The business could not be so conducted,
for those who sell the goods the 'fences' must keep
up a more respectable front than is generally possible for
the thieves." United States v, Wernet', 160 F.2d 438, 441-42
(2d eir. 1947).
''The typical 'fence' takes over the stolen property and pays
the thief a price. He purports to 'buy' the goods from the
thief." Rollin M. Perkins & Ronald N. Boyce, Criminal Law
395 (3d ed. 1982).
2. A place where stolen goods are sold. See RECEIVING
STOLEN PROPERTY. 3. LAWFUL FENCE. 4. Scots law. The
formal warning to not interrupt or obstruct judicial or
legislative proceedings. 5. Scots law. A penalty of for
feiture prescribed in a statute or a contract.
fence, vb. 1. To sell (stolen property) to a fence. 2. Scots
law. To open (a legislative or judicial sitting) by warning
persons against obstructing or interrupting the legisla
ture or court. 3. Scots law. To threaten with forfeiture
as a consequence ofviolating a law or breaching a con
tractual promise.
fence-month. Hist. The summer fawning season when
it was unlawful to hunt deer. Also termed defense-
month.
fencing patent. See PATENT (3).
feneration (fen-J-ray-sh;)n). (16c) Hist. 1. The act or
practice oflending money with interest. 2. USURY.
fenus (fen-as), n. [Latin] Roman law. Simple interest.
fenus nauticum. See :'ilAUTICUM FEN us.
feod (fyood). 1. See FEE (2). 2. See FEUD.
feodal (fyoo-dJI), adj. See FEUDAL.
feodal action. See FEUDAL ACTION.
feodality (fyoo-dal-;)-tee). See FEALTY.
feodal system. See FEUDALISM. feoffer
feodarum consuetudines (fee-;)-dair-;)m [or fyoo
dair-Jm] kon-sw;)-t[y]oo-dJ-neez). See FEUOARAM
CONSUETUDINES.
feodary (fyoo-d;)-ree). (ISc) Hist. An officer ofthe Court
ofWards who traveled with the escheator from county
to county in order to receive royal rents and estimate
the value ofland tenures for the Crown. See COURT OF
WARDS A:'ilD LIVERIES.
feodatory (fyoo-da-tor-ee). See FEUDATORY.
feodifirma (fee-;)-dr or fyOO-dI f<lr-m;). See FEE FARM.
feodi firmarius (fee-a-dl orfyoo-dI f;)r-mair-ee-as). Hist.
The tenant ofa fee farm.
feodum (fee-;)-d;)m or fyoo-d;)m). [Law Latin] Hist. 1. A
fee; a heritable estate.
"Feodum ... A fee; the same as feudum. This is the word
uniformly employed by Glanville and Bracton to denote
an estate of inheritance, and an estate held of another by
service, instead of feudum, which is invariably used by
the continental feudists." 1 Alexander M. Burrill, A Law
Dictionary and Glossary 615 (2d ed. 1867).
2. Part of a lord's estate held by a tenant (Le., a sei
gniory). See SEIGNIORY (2). 3. A payment for services
rendered.
feodum antiquum. See feudum antiquum under
FEUDUM.
feodum apertum. See feudurn apertum under FEUDUM.
feodum laicum. Seefeudum laicum under FEUDUM.
feodum militis (fee-;)-dJm or fyoo-dam mil-a-tis). Hist.
A knight's fee. Also termedfeodum militare.
feodum nobile (fee-J-d;)m or fyoo-dam noh-b<'l-lee). See
feudum nobile under FEUDUM.
feodum novum (fee-;)-d;)m or fyoo-d;)m noh-v;)m). See
feudum novum under FEUDUM.
feodum simplex (fee-a-d;)m or fyoo-d;lm sim-pleks). A
fee simple.
feodum talliatum (fee-;)-d;)m or fyoo-d;lm tal-ee-ay
t;)m). A fee tail. Also spelledfeudum talliatum.
feoff (fef or feef), vb. See ENFEOFF.
feoffamentum (fee-[;)]-f;)-men-tJm). [Law Latin] Hist.
See FEOFFMENT.
feoffare (fee-[;)]-fair-ee), vb. [Law Latin) Hist. See
ENFEOFF.
feoffator (fee-[;)]-fay-t;)r). [Law Latin] Hist. See
FEOFFOR.
feoffatus (fee-[;)]-fay-t;)s). [Law Latin] Hist. See
FEOFFEE.
feoffee (fef-ee or feef-ee). (ISc) The transferee ofan estate
in fee simple; the recipient ofa fief.
feoffee to uses. Hist. A person to whom land is conveyed
for the use of a third party (called a cestui que use);
one who holds legal title to land for the benefit of
another. See CESTUI QUE USE; GRANT TO USES. Cf.
TRUSTEE (I).
feoffer. See FEOFFOR.
696 feoffment
feoffment (fef-mant or feef-mant). (I4c) Hist. 1. The act
of conveying a freehold estate; a grant of land in fee
simple. -Also termed feoffment with livery ofseisin.
2. The land so granted. 3. The charter that transfers the
land. Also termed deed offeoffment. [Cases: Deeds
feoffment to uses. An enfeoffment of land to one person
for the use of a third party. The feoffee was bound
in conscience to hold the land according to the pre
scribed use and could derive no benefit from the
holding.
"Conveyances of freehold land could originally be made
only by a feoffment with livery of seisin. This was a solemn
ceremony carried out by the parties entering on the land,
and the feoffor, in the presence of witnesses, delivering
the seisin to the feoffee either by some symbolic act,
such as handing him a twig or sad of earth, or by uttering
some words such as 'Enter into this land and God give you
joy' and leaving him in possession of the land." Robert E.
Megarry & HW.R. Wade, The Law ofReal Property 47 (5th
ed,1984),
feoffment with livery ofseisin. See FEOFFMENT (1).
feoffor (fef-or feef-ar or -or). The transferor ofan estate
in fee simple. Also spelled feoffer.
feorme (farm). Hist. A portion of the land's produce
owed by the grantee to the lord according to the terms
of a charter.
ferae bestiae (feer-ee bes-tee-ee). [Latin] Roman law.
Wild beasts . Since a wild animal belonged to no one
(res nullius), its captor acquired ownership by occupa
tio. See OCCIJPATIO.
ferae naturae (feer-ee m-tyoor-ee). [Latin "of a wild
nature"]t. adj. (Of animals) wild; untamed; undomes
ticated. 2. n. Wild animals. See RULE OF CAPTURE (2).
feral animal. See ANIMAL.
FERC (brk). abbr. FEDERAl. ENERGY REGULATORY COM
MISSION.
FERC-out clause. Oil & gas. A provision in a contract to
sell natural gas specifying that if a regulatory agency
does not allow the price paid to the producer to be
passed on to consumers, either the contract price will
be reduced accordingly or the contract will be termi
nated. -Also termed regulatory-out clause.
ferdella terrae (far-del-a ter-ee). [Latin] His/. 1. Ten acres
ofland. 2. A yard-land (twenty acres).
ferdfare (fard-fair), n. [fr. Saxonfird "military service" +
fare "a going"] Hist, 1. A summons to military service.
2. An exemption from military service. -Also spelled
firdfare; fyrdfare.
ferdingus (far-ding-gds). Hist. A freeman of the lowest
class.
Feres doctrine (feer-is or feer-eez or fer-ez). Torts. The
rule that a member of the military is barred from
recovering damages from the United States on a claim
brought under the Federal Tort Claims Act for injuries
sustained in military service. Feres v. United States, 340
U.S. 135,71 S.Ct. 153 (1950). -Also termed Feres rule. See ACTIVITY INCIDENT TO SERVICE. [Cases: United
States C=-78(16).]
feria (feer-ee-a), n. [Law Latin] Hist. 1. A weekday. 2.
A holiday. 3. See ferial day under DAY. 4. A fair. 5. A
ferry.
feriae (feer-ee-I), n. pl. [Latin] Roman law. Religious and
public holidays on which Romans suspended politics
and lawsuits, and on which slaves enjoyed a partial
break from labor.
ferial day. See DAY.
ferlingum. See FURLONG.
ferlingus. See FURLONG.
ferm. See FARM.
fermer. [Law French] Hist. 1. A lessee, esp. one who
holds lands for agricultural purposes. 2. One who holds
something (such as land or an incorporeal right) by
the term.
FERPA. abbr. FAMILY EDUCATIONAL RIGHTS AND
PRIVACY ACT.
ferriage (fer-ee-ij). (14c) Hist. The toll or fare paid for
the transportation of persons or property on a ferry.
[Cases: Ferries C=-31.]
ferry, n. (bef. 12c) 1. A boat or vessel used to carry
persons or property across water, usu. with fixed ter
minals and short distances. [Cases: Ferries C=-2.] 2.
1he commercial transportation ofpersons or property
across water. [Cases: Ferries 3. The place where a
ferry passes across water, including the continuation of
the highway on both sides ofthe water. [Cases: Ferries
C=-3.] 4. The right, usu. exclusive, given by govern
ment franchise, to carry persons or property across
water for a fee. Also termed ferry franchise. [Cases:
Ferries
ferry, vb. To carry persons or property, usu. across water,
fora fee.
ferry franchise. See FERRY (4).
|
persons or property, usu. across water,
fora fee.
ferry franchise. See FERRY (4).
fertile-octogenarian rule. (1856) The legal fiction,
assumed under the rule against perpetuities, that a
woman can become pregnant as long as she is alive .
The case that gave rise to this fiction was lee v. Audley,
1 Cox 324, 29 Eng. Rep. 1186 (ch. 1787). See W. Barton
Leach, Perpetuities: New Hampshire Defertilizes Octo
genarians, 77 Rarv. 1. Rev. 729 (1963). -Also termed
presumption-ai-fertility rule.
"Suppose testator bequeaths in trust to pay the income to
A for her life, then to pay the income to the children of A
for their lives, and upon the death of the survivor of such
children, to pay the principal to the grandchildren of A. At
the time of the testator's death A is 79 years old, and she
has two children. Believe it or not, it has been held that
the remainder to the grandchildren of A is violative of the
rule against perpetuities and invalid. The law adopted the
conclusive presumption that every person is capable of
having children until the day he or she dies, as far as the
rule against perpetuities is concerned. Consequently, A
could have an additional child who would not be a life in
being at the testator's death, and that child could have a
child who would be born beyond the permissible period.
The result of this hypothesis is to invalidate the remainder
697 feud
to the grandchildren. This situation is sometimes referred
to as the case of the 'fertile octogenarian: Remember that
the class gift is invalid if it is possible that the interest of
anyone member of the class can violate the rule." Thomas
F. Bergin & Paul G. Haskell, Preface to Estates in Land and
Future Interests 188 (2d ed. 1984).
festing-man. Hist. A bondsman; a surety. See FRANK
PLEDGE.
festing-penny. Hist. Earnest, or payment, given to a
servant when hired.
festinum remedium (fes-tI-n;lm ri-mee-dee-;lm). [Latin]
Hist. A speedy remedy . It was used in cases, such as
actions for dower or assize, where the redress ofinjury
was given without unnecessary delay.
Festo doctrine. (2003) Patents. The rule that the vol
untary narrowing of a patent claim may give rise to
prosecution-history estoppel. Festo Corp. v. Shoketsu
Kinzoku Kogyo Kabushiki Co., 304 F.3d 1289 (Fed. Cir.
2003). [Cases: Patents (;::=c 168(2.2).]
festuca (fes-tyoo-b). Hist. A rod, staff, or stick used as
a pledge (or gage) ofgood faith by a party to a contract
or as a token of conveyance ofland. In Roman law,
a festuca was a symbol of ownership. Also termed
fistuca; vindicta. See LIVERY OF SEISIN.
"The wed or gage, however, was capable of becoming
a symbol; an object which intrinsically was of trifling
value might be given and might serve to bind a contract.
Among the Franks, whom we must regard as being for
many purposes our ancestors in law, it took the shape of
the festuca. Whether this transition from the 'real' to the
'formal' can be accomplished without the intervention of
sacral ceremonies seems doubtful. There are some who
regard the festuca as a stout staff which has taken the
place of a spear and is a symbol of physical power. Others
see in it a little bit of stick on which imprecatory runes
have been cut. It is hard to decide such questions, for,
especially under the influence of a new religion, symbols
lose their old meanings and are mixed up. Popular etymol
ogy confounds confusion." 2 Frederick Pollock & Frederic
W. Maitland, The History ofEnglish Law Before the Time of
Edward 1186 (2d ed. 1899).
festum (fes-t"m). [Latin] A feast-day, holiday, or
festival.
fetal alcohol syndrome. A variety of birth defects caused
by the mother's alcohol consumption during preg
nancy. The birth defects include facial abnormalities,
mental retardation, and growth deficiencies. -Abbr.
FAS. [Cases: Infants C::-'156, 179.]
fetiales (fee-shee-ay-leez), n. pl. Roman law. The order
of priests whose duties concerned international rela
tions and treaties, including the declaration of war and
peace. Also spelled feciales.
"Feciales [were] ... priests among the Romans, Etruscans,
and other ancient nations ofItaly, who acted as heralds
of peace and war. Their persons were sacred from injury
when engaged on any mission to a hostile state, as the
persons ofambassadors, and messengers, under a flag
of truce, are inviolate in the present time. Their duties
in some few particulars resembled those of the heralds
of the Middle Ages. The Roman feciales ... formed a
kind of college of heralds, instituted by Numa Pompil
ius, the second king of Rome, about 710 B.C" Beeton's Illustrated Dictionary ofReligion, Philosophy, Politics,
and Law 240 (ca. 1880).
fetiallaw (fee-sh;JI). (I6c) Roman law. A branch oflaw
concerned with matters (such as treaties, embassies,
and war declarations) affecting relations between
peoples or nations. Also spelled feciallaw. Also
termed jus fetiale.
feticide (fee-t;J-sld). (1842) 1. The act or an instance of
killing a fetus, usu. by assaulting and battering the
mother; esp., the act of unlawfully causing the death
of a fetus. 2. An intentionally induced miscarriage.
Also spelled foeticide. Also termed child destruction.
Cf. INFANTICIDE (1). feticidal, adj.
fetter, n. (usu. pl.) (bef. 12c) A chain or shackle for the
feet fetter, vb.
fettering of property. The act of making the disposi
tion or ownership of property more complex so that
those with separate interests must cooperate if they
are to handle their interests reasonably . Fettering of
property occurs whenever ownership is split into two
or more interests, as when present and future interests
are divided or when a tenancy in common is created.
[Cases: Perpetuities
fetus. (14c) A developing but unborn mammal, esp. in the
latter stages of development. -Also spelled foetus. Cf.
EMBRYO; ZYGOTE. [Cases: Abortion and Birth Control
(;::=c 106.J
feu (fyoo), n. [fro Law Latinfeudum "a fee"] (ISc) 1. A
right to land given to a person in exchange for service
to be performed. 2. Scots law. Land held by a vassal
in return for an annual payment in money, crops, or
services(called feu duty) . This type of tenure was abol
ished in Scotland in 2000. 3. Scots law. A perpetual
grant ofland to be held in exchange for grain or money.
4. A perpetual lease for a fixed rent. 5. A piece of land
held under a perpetual lease for a fixed rent. Also
spelledfew. See FEE (2). feu, vb. -feu, adj.
"Feu; in Latin feudum, was used to denote the feudal-hold
ing, where the service was purely military; but the term has
been used in Scotland in contradistinction to ward-holding,
the military tenure of this country ... for, even in the purest
ages of the military system, innumerable instances are to
be found of grants of land in the feudal form, where the
vassal annually delivered Victual, or performed agricultural
services to his superior," William Bell, Bell's Dictionary and
Digest ofthe Law ofScotland 456 (George Watson ed., 7th
ed.1890).
feu, vb. Scots law. To grant (land) by feu.
feu annual. Scots law. The yearly return generated by
a feu.
feuar (fyoo-;Jr), n. (16c) Scots law. One who holds a feu. cr FEU; VASSAL.
feu charter. Scots law. The charter creating a feu
tenure.
feud, n. (I5c) Hist. 1. A heritable estate in land conveyed
from a feudal superior to a grantee or tenant, held on
the condition of rendering services to the superior.
"It is believed that the forms feud and fiefappear in England
but late in the day under the influence of foreign books;
feudal 698
they never became terms of our law. It is noticeable also
that feodum was constantly used in the sense that our fee
has when we speak of a lawyer's or doctor's fee; payments
due for services rendered, at least if they are permanent
periodic payments, are feoda; the judges, for example,
receive feoda, not salaries. The etymological problem pre
sented by the English fee seems no easy one, because at
the Conquest the would-be Latin feodum or feudum (the
d in which has puzzled philologists and does not always
appear in Domesday Book) is introduced among a people
which already has feoh as a word for property in general
and cattle in particular." 2 Frederick Pollock & Frederic W.
Maitland, The History of English Law Before the Time of
Edward 1236 n.2 (2d ed. 1899).
impartible feud. An indivisible feud; a feud not subject
to partition. See feudum individuum under FEUD.
improper feud. A nonmilitary feud; a feud that is base
or servile in nature.
"These were the principal, and very Simple, qualities of
the genuine or original feuds; being then all of a military
nature, and in the hands of military persons: though the
feudatories, being under frequent incapaCities of cultivat
ing and manuring their own lands, soon found it necessary
to commit part of them to inferior tenants.. . But this at
the same time demolished the ancient simplicity of feuds;
and an inroad being once made upon their constitution, it
subjected them, in a course of time, to great varieties and
innovations. Feuds came to be bought and sold, and devia
tions were made from the old fundamental rules of tenure
and succession; which were held no longer sacred, when
the feuds themselves no longer continued to be purely
military. Hence these tenures began now to be divided
into feoda propria et impropria, proper and improper
feuds ...." 2 William Blackstone, Commentaries on the
Laws of England 57-58 (1766).
proper feud. A feud based on military service.
2. The interest of the tenant in the land conveyed. 3.
The land itself conveyed. -Also termed (in senses 1,
2 & 3) fee;fief;feod;feude;feudum. 4. An enmity or
private war existing between families or dans, esp. as
a result ofa murder.
"Where wrong done to an individual is not regarded as
an injury to the entire tribe, the wrongdoer is out of the
peace only as regards the wronged party and his kin. The
situation created by such wrongful deed is feud (Anglo
Saxon foehth, Latin (aida). The root meaning of the word
is 'hatred.' Feud is legally sanctioned hostility. The recog
nition of feud by the law is found in the fact that revenge
taken in lawful feud is not a breach of the peace. It is not
a wrongful deed. It furnishes no basis for any claim for
fine or punishment. The man slain in lawful feud is not
to be avenged nor has compensation to be paid for his
slaying." Munroe Smith, The Development ofEuropean Law
29 (1928).
blood feud. A state of hostility between fa mil ies in
which one family seeks to avenge the killing of one of
its members by killing a member of the other family.
See VE~DETTA.
"AngloSaxon polity preserved, even down to the Norman
Conquest, many traces of a time when kinship was the
strongest of all bonds. Such a stage of society, we hardly
need add, is not confined to anyone region of the world
or anyone race of men .... When it puts on the face of
strife between hostile kindreds, it is shown in the war of
tribal factions, and more specifically in the blood-feud. A
man's kindred are his avengers; and, as It is their right and
honour to avenge him, so it is their duty to make amends
for his misdeeds, or else maintain his cause in fight. Step
by step, as the power of the State waxes, the self-centred and self-helping autonomy of the kindred wanes. Private
feud is controlled, regulated, put, one may say, into legal
harness; the avenging and the protecting clan on the slain
and the slayer are made pledges and auxiliaries of public
justice." 1 Frederick Pollock & Frederic W. Maitland, The
History of English Law Before the Time of Edward I 31 (2d
ed.1898).
feudal, adj. 07c) 1. Of, relating to, or growing out of
feudalism <feudal law>. 2. Of or relating to a feud
<feudal tenure>. Also spelled (archaically) feodal.
Cf. ALLODIAL.
feudal action. Hist. A real action; an action that con
cerned only real property.
feudalism (fyood-al-iz-am). (19c) L A landholding
system, particularly applying to medieval Europe, in
which all are bound by their status in a hierarchy of
reciprocal obligations of service and defense. -The
lord was obligated to give the vassal (1) some land, (2)
protection, and (3) justice. The lord guaranteed the
quiet occupation of the land by the vassal and guar
anteed to do right if the vassal became involved in a
disput |
iet occupation of the land by the vassal and guar
anteed to do right if the vassal became involved in a
dispute. In return, the vassal owed the lord some type of
service, called "tenure" (literally "means ofholding"),
because the different types of service were the methods
by which the vassals held the property. 2. The social,
political, and economic system ofmedieval Europe.
Also termed feudal system;feodal system. -feudalis
tic, adj.
'What do we mean by feudalism? Some such answer as the
following is the best that I can give - A state of society
in which the main social bond is the relation between lord
and man, a relation implying on the lord's part protec
tion and defence; on the man's part protection, service
and reverence, the service including service in arms. This
personal relation is inseparably involved in a proprietary
relation, the tenure of land the man holds land of the
lord, the man's service is a burden on the land. the lord
has important rights in the land, and (we may say) the full
ownership of the land is split up between man and lord."
FW. Maitland, The Constitutional History of England 143
(1908; repro 1955).
"Modern historical research has taught us that, while it is a
mistake to speak of a feudal system, the word 'feudalism'
is a convenient way of referring to certain fundamental
similarities which, in spite of large local variations, can be
discerned in the social development of all the peoples of
western Europe from about the ninth to the thirteenth cen
turies." J.L. Brierly, The Law of Nations 2 (5th ed. 1955).
feudal law. Rist. Ihe real-property law ofland tenures
that prevailed in England, esp. after the Norman
Conquest. See FEUDARUM CONSUETUDINES.
feudal system. See FEUDALISM.
feuda pecuniae (fyoo-dG pi-kyoo-nee-ee). [Law Latin]
Hist. A heritable right to money.
feudarum consuetudines (fyoo-dair-Gm kon-swa-t[y]
oo-da-neez). [Latin] The customs of feuds. -This
was the name of a compilation of feudal laws and
customs made in 12th-century Milan. It is regarded as
an authoritative work in continental Europe. Also
spelledfeodarum consuetudines.
feudary. See FEUDATORY.
699
feudatory, adj. (16c) Hist. (Of a vassal) owing feudal alle
giance to a lord.
feudatory, n. (l7c) Hist. The grantee ofa feud; the vassal
or tenant who held an estate by feudal service. -Also
termed feudary; feodato ry.
"Every receiver of lands, or feudatory, was therefore bound,
when called upon by his benefactor, or immediate lord of
his feud or fee, to do all in his power to defend him." 2
William Blackstone, Commentaries on the Laws ofEngland
46 (1766).
feude. See FEUD.
feudee (fyoo-dee), n. Hist. The grantee ofa feud; a feudal
tenant.
feudist. (17c) A writer on feuds (for example, Cujacius,
Spelman, Craig).
Feudorum Libri (fyoo-dor-~m h-bn). [Latin "the books
of the feuds"] Hist. The Books of Feuds, a five-book com
pilation of Lombardic feudal law published in Milan
around 1152, during the reign of Henry III. This
unofficial compilation was the main source of tenure
law among the nations in Europe. It was widely used in
medieval law schools and courts in Italy, France, and
Germany. The Feudorum Libri were probably known
in England but had little effect other than influencing
English lawyers to study their own tenure system more
critically. Also termed Consuetudines Feudorum;
Usus Feudorum.
feudum (fyoo-d~m). [Law Latin] A fief or feud; a
feodum. Also termedfeodum;feum. Pl.feuda (fyoo
da). See FE'UD (1)-(3); FIEF; FEE (2).
'The Latin equivalent of feodum or feudum is the root of
the words 'feudal' and 'subinfeudation'. The French form
fief is favoured by some English historians, but it was not
used in law-French:' J.H. Baker, An Introduction to English
Legal History 256 n.4 (3d ed. 1990).
feudum antiquum (fyoo-dam an-tI-kwam), n. [Law
Latin "ancient feud"] Hist. 1. A feud that passed to a
vassal from an intestate ancestor. 2. A feud that ances
tors had possessed for more than four generations. 3.
An ancient feud. PLfeuda antiqua (fyoo-d~ an-tl
kwa). -Also termedfeodum antiquum (fee-a-dam
or fyoo-dilm). See FEUD (1).
feudum apertum (fyoo-dam a-pilr-tam). Hist. A feud
that reverted to the lord because of a tenant's failure
ofissue, a crime by the tenant, or some other legal
cause. -Also termedfeodum apertum.
feudum burgale (fyoo-dam bar-gay-Iee). [Law Latin]
Hist. Land held feudally by burgage tenure -that is,
tenure given in exchange for a tenant's watching and
warding in a burgh. See WATCH AND WARD.
feudum ex camera aut caverna (fyoo-dilm eks
kam-ar-a awt b-vilr-nil). [Law Latin "feu from a
room or hole"] Hist. An annual gift of money, grain,
or other items to a descrving person, esp. a soldier.
feudum francum (fyoo-dam frangk-ilm). Hist. A free
feud; a feud or fee that was noble and free from talliage
and subsidies that vulgar feuds (plebeia feuda) were
subject to. feudum
feudum hauberticum (fyoo-dilm haw-bilr-til-bm).
Hist. A feud that was held on the military service of
appearing fully armed when summoned by the lord.
See ARRIERE-BAN.
feudum improprium (fyoo-dilm im-proh-pree-<lm).
Hist. A feud that was improper.
feudum individuum (fyoo-d~m in-da-vij-oo-<lm). Hist.
A feud that was indivisible and descendible only to
the eldest son.
feudum laicum (fyoo-dilm laY-il-bm). Hist. A lay
feud. -Also termedfeodum laicum.
feudum ligium (fyoo-dam lij-ee-<lm). Hist. 1. A liege
feud; a feud held immediately of the sovereign. 2.
A feud for which the vassal owed fealty to his lord
against all other persons.
feudum maternum (fyoo-dam ma-tilr-n<lm). Hist.
A feud that descended to the feudatory from the
maternal side.
feudum militare (fyoo-d~m mil-<l-tair-ee). Hist. A
knight's feud . It was held by knight-service and
esteemed the most honorable species of tenure.
Also termed feodum militis; (in Norman law) fief
d'haubert or fiefd'hauberk.
feudum nobile (fyoo-dam noh-ba-Iee). Hist. A feud
for which the tenant did guard and owed fealty and
homage. -Also termed feodum nobile.
feudum novum (fyoo-d~m noh-vam). [Law Latin] Hist.
A new fee; a fee that began with the person of the
feudatory, and that was not acquired by succession.
Also spelled feodum novum.
"For if the feud, of which the son died seised, was really
feudum antiquum, or one descended to him from his ances
tors, the father could not possibly succeed to it, because it
must have passed him in the course of descent, before it
could come to the son .... And if it were feudum novum, or
one newly acquired by the son, then only the descendants
from the body of the feudatory himself could succeed,
by the known maxim of the early feodal constitutions ...
which was founded as well upon the personal merit of the
vassal, which might be transmitted to his children but could
not ascend to his progenitors ... :. 2 William Blackstone,
Commentaries on the Laws of England 21 1-1 2 (1766).
feudum novum ut antiquum (fyoo-dam noh-vdm ilt
an-tr-kwam). Hist. A new feud held with the qualities
of an ancient teud.
feudum paternum (fyoo-dam pa-tilr-ndm). Hist. 1. A
feud that the tenant's paternal ancestors had held for
four generations. 2. A feud descendible only to the
heirs on the paternal side. 3. A feud that could be held
only by males.
feudum proprium (fyoo-d~m proh-pree-dm). Hist. An
original feud that is military in nature and held by
military service.
feudum rectum (fyoo-ddm rek-t<lm). [Law Latin] Hist.
Lands held by military tenure.
feudum simplex (fyoo-dilm sim-pleks). [Law Latin]
Hist. FEE SIMPLE.
700 feu duty
feudum talliatum (fyoo-dam tal-ee-ay-tam). See PEE
TAIL.
feu duty. Scots law. The annual rent paid by the tenant of
a feu. -Also termed ground annual.
feu farm. Scots law. A tenure ofland held in exchange
for a specified annual payment (called feu duty). _ This
type of tenure was converted to a freehold in 2000.
Also termedfeu tenure. See FEl: DUTY.
feuholding (fyoo-hohl-ding). Hist. A tenancy held
by rendering produce or money instead of military
service. -Also writtenfeu holding.
feum. See FEUDUM.
feu tenure. See FEU FARM.
few. See FEU.
ff. abbr. 1. And the pages following. 2. (often cap.) FRAG
MENTA.
FGA. abbr. 1. Free from general average. 2. Foreign
general average.
'F.C.A. means Foreign General Average, and implies that,
if goods become liable to general average, the rules to be
applied will be those of the port of destination or refuge,
Le., the law of the place where the adjustment is made." 2
E.W. Chance, Principles ofMercantile Law 128 (PW. French
ed., 10th ed, 1951).
FGM. abbr. FEMALE GENITAL MUTILATION.
FHA. abbr, 1. FARMERS HOME ADMINISTRATION. 2.
FEDERAL HOUSING ADMINISTRATION.
FHA mortgage. See MORTGAGE.
FHEO. abbr. OFFICE OF FAIR HOUSING AND EQUAL
OPPORTUNITY.
FHLB. abbr. FEDERAL HOME LOAN BANK.
FHLBB. abbr. FEDERAl. HOME LOAN BANK BOARD.
FHLMC. abbr. FEDERAL HOME LOAN MORTGAGE COR
PORATION.
FHWA. abbr. FEDERAL HIGHWAY ADMINISTRATION.
fiancer (fyahn-say), vb. [Law French) To pledge one's
faith.
fiant, n. (16c) Hisl. 1. A decree; commission. 2. A warrant
to the Chancery ofIreland for a grant under the great
seal.
fiar, n. Scots law. One who holds an estate in fee, in
contrast to a liferenter.
fiat (fee-aht or fee-at or fI-at or fI-at), n. [Latin "let it be
done") 07c) 1. An order or decree, esp. an arbitrary one
<judicial fiat>. 2. A court decree, esp. one relating to a
routine matter such as scheduling <the court requires
all motions to contain a fiat -to be filled in by the
court -setting the hearing date>. -Also termed
fiaunt.
fiat justitia (fI-at jCls-tish-ee-a). [Latin] Hist. Let justice
be done. _ This phrase signaled the Crown's commis
sion to the House ofLords to hear an appeal.
"Fiat justitia, ruat coelum, says another maxim, as full of
extravagance as it is of harmony: Go heaven to wreck so
justice be but done: and what is the ruin of kingdoms, in comparison of the wreck of heaven?" Jeremy Bentham,
An Introduction to the Principles of Morals and Legislation
13-14 n.1 (1823).
fiat money. See MONEY.
fiat ut petitur (fI-at CIt pet-a-tar). [Latin] Let it be done as
it is asked. -An order granting a petition.
fiaunt. See FIAT.
FICA (fl-b). abbr. FEDERAL INSLRANCE CONTRIBUTIONS
ACT.
fickle-fiduciary rule. The principle that a partner or
employee who breaches a fidUciary duty should forfeit
all compensation, bonuses, and other benefits received
for as long as the breach continues. -The rule usu.
applies to a person who engages in or assists a com
peting business, or resigns from employment to set up
or work for a competing business. Traditionally, miti
gating factors, including the absence of harm to the
employer or partnership, are not considered in applying
the rule. But some courts have found that if a strict
application would produce un |
employer or partnership, are not considered in applying
the rule. But some courts have found that if a strict
application would produce unjustly harsh results, miti
gating factors must be weighed.
ficta traditio (fik-ta tra-dish-ee-oh). [Latin] Scots law. A
fictitious delivery. _ The phrase invoked the rule that
if the parties so intended, an item could be treated as
having been delivered to a buyer in possession of it
without the need for physical transfer. -Also termed
fictio brevis manus.
fictio (fik-shee-oh), n. [Latin fr. fingere "to feign"] Roman
law. A legal fiction; a legal assumption or supposition
(such as that the plaintjffwas a citizen) necessary to
achieve certain legal results that otherwise would not be
obtained. _ Legal fictions allowed Roman magistrates
(praetors) to expand the law beyond what was strictly
allowed by the jus civile, This practice also occurred
in English law -for example, the action of common
recovery, which allowed a landowner to convey land
that by law could not be alienated (such as land held in
fee tail). PI. fictiones (fik-shee-oh-neez).
fictio brevis manus (fik-shee-oh bree-vis may-nas). [Law
Latin) FleTA TRADITIO.
fictio juris. See LEGAL FICTION.
fiction. See LEGAL FICTION.
fictional action. See collusive action under ACTION (4).
fiction oflaw. See LEGAL FICTION.
fictitious, adj, (17c) Ofor relating to a fiction, esp. a legal
fiction.
fictitious action. See ACTION (4).
fictitious issue. See FEIG~ED ISSl:E.
fictitious name. 1. See ASSUMED NAME. 2. See ALIAS (1).
3. See JOHN DOE,
fictitious party. See PARTY (2).
fictitious-payee rule. Commercial law, The principle that
ifa drawer or maker issues commercial paper to a payee
whom the drawer or maker does not actually intend to
have any interest in the instrument, an ensuing forgery
701
ofthe payee's name will be effective to pass good title to
later transferees. -Also termed padded-payroll rule.
[Cases: Banks and Banking (;::::c 148, 174; Bills and
Notes
fictitious person. See artificial person under PERSON (3).
fictitious promise. See implied promise under
PROMISE.
fictitious seisin. See seisin in law under SEISIN.
fide-committee. A beneficiary; CESTUI QUE TRUST.
Also termed fidei-commissarius.
"In a particular case, a cestuy que trust is called by the
Roman law, fideicommissarius. In imitation of this, I have
seen him somewhere or other called in English a fide-com
mittee. This term, however, seems not very expressive.
A fide-committee, or, as it should have been, a fidei
committee, seems, literally speaking, to mean one who is
committed to the good faith of another." Jeremy Bentham,
An Introduction to the Principles of Morals and Legislation
226 n.l (1823).
fideicomiso (fee-day-koh-mee-soh). Mexican law. A
trust; esp., a trust that is established for the purpose of
acquiring property in Mexico with a Mexican bank as
trustee and a non-Mexican (who may be the settlor) as
beneficiary. _ The property is held in the name of the
trust, but the beneficiary has all the rights and obliga
tions ofdirect ownership, including the power to lease,
sell, or devise the property. A Mexican fideicomiso usu.
lasts 50 years and can be renewed for 50 more. Cf. FIDE
ICOMMISSUM.
fidei-commissarius. See CESTUI QUE TRUST.
fidei-commissary (fI-dee-I kom-<l-ser-ee). See CESTUI
QUE TRUST.
fideicommissary heir. See HEIR.
fideicommissary substitution. 1. SUBSTITUTION (6). 2.
SUBSTITUTION (7).
fideicommissum (fI-dee-I-ka-mis-am). [Latin] (I8c) 1.
Roman law. A direction to an heir asking the heir as
a matter of good faith to give some part of the inheri
tance, such as a particular object, or all the inheritance,
to a third party. - Afideicommissum was a device to
overcome some of the technicalities of the Roman
wilL Originally it created a mere moral obligation, but
Augustus made it enforceable by legal process. 2. Roman
& civil law. An arrangement similar to a trust by which
a testator gave property to a person for the benefit of
another who could not, by law, inherit property. -Over
time, this device was used to tie up property for gen
erations, and most civil jurisdictions now prohibit or
limit it. For example, in Louisiana, an arrangement in
which one person bequeaths property to a second with a
charge to preserve it and, at death, to restore it to a third
person is a prohibited fideicommissum. -Sometimes
spelled fidei-commissum. Pl. fideicommissa.
"The many formalities with regard to the institution of
heirs and the bequest of legacies, coupled With the fact
that many persons, e.g. peregrini, were incapable of being
instituted heirs, or of being given a legacy, led, in the late
Republic, to testators leaving directions to their heirs in
favour of given individuals, which, though not binding at
law, they hoped their heirs would, in honour, feel bound fidem facere judici
to carry out. The beginning of fideicommissa, therefore,
was very like the early practice with regard to trusts in
English law, and, as in the case of trusts, a time came when
trusts were made binding legally as well as morally.... For
brevity, the fideicommissum will here be called 'the trust',
the person upon whom it was imposed (fiduciarius) 'the
trustee', and the person in whose favour it was imposed
(fideicommissarius) 'the beneficiary'." RW. Leage, Roman
Private Law 252 (c.H. Ziegler ed., 2d ed. 1930).
fidejubere (fI-dee-ya-beer-ee), vb. [Latin] Roman law.
To become a surety. _ Forms ofthis word were spoken
by the parties to a stipulatio that bound one party to
become a surety for the other; the first party asked,
"Do you pledge yourself?" ("fidejubesne?"), and the
second responded, "I do pledge myself" Cfidejubeo").
See STIPULATIO.
fidejussion (f1-di-jash-an). [fro Latin fidejussiO] (16c)
Roman law. An act by which a person becomes an
additional security for another. _ The act does not
remove the principal's liability but only adds to the
surety's security. FidejUSSion was one ofthe three types
of adpromission, and the only type remaining in Jus
tinian's law. -Also spelledfidejussio;fideiussio. See
ADPROMISSION (1). -fidejussionary, adj.
fidejussor (fI-dee-jas-or or -jas-;)r). (16c) 1. Roman law.
(ital.) A guarantor; a person who binds himself to pay
another's debt. 2. Hist.lvlaritime law. A person who acts
as bail for a defendant in the Court of Admiralty.
Also spelled fidejussor. Cf. ADPROMISSOR. fidejus
sory, adj.
"The proceedings of the court of admiralty bear much
resemblance to those of the civil law, but are not entirely
founded thereon; and they likewise adopt and make use of
other laws, as occasion requires; such as the Rhodian law,
and the laws of Oleron. For the law of England, as has fre
quently been observed, doth not acknowledge or pay any
deference to the civil law considered as such; but merely
permits its use in such cases where it judged its determi
nations equitable, and therefore blends it, in the present
instance, with other marine laws .... The first process
in these courts is frequently by arrest of the defendant's
person; and they also take recognizances or stipulation
of certain fidejussors in the nature of bail, and in case of
default may imprison both them and their principal." 3
William Blackstone. Commentaries on the Laws ofEng/and
108-09 (1768).
fidelitas (fi-del-<l-tas). [Latin "fidelity"] See FEALTY.
fidelitatis sacramentum (fi-del-i-tay-tis sak-ra-men
t<lm). [Law Latin] Hist. The oath offealty that a vassal
owed to a lord.
fidelity and guaranty insurance. See fidelity insurance
under INSURANCE.
fidelity bond. See BOND (2).
fidelity guaranty insurance. See fidelity insurance under
INSURANCE.
fidelity insurance. See INSURANCE.
fidem facerejudici (fI-d;:lm fay-sa-ree joo-di-SI). [Latin]
Hist. To convince the judge. -1he phrase appeared
in reference to the introduction ofevidence to prove
a case.
702 fidem mentir;
fidem mentiri (fI-d<}m men-tI-rI). [Latin] Hist. To betray
faith or fealty. The term refers to a feudal tenant who
did not keep'the fealty sworn to the lord.
fidepromission (fI-dee-proh-mish-;m), n. [Latin "faith
promise"] (19c) Roman law. A contract ofguaranty by
stipulation. Fidepromission was one ofthe three types
of adpromission. See ADPROMISSION (1); STIPULATION
(3). -fidepromissor, n.
fides (fI-deez). [Latin] Faith.
fides facta (fI-deez fak-td). [Latin] Hist. Faith-making;
faith-pledging . Among the Franks and Lombards,
certain transactions were guaranteed by symbolic,
formal acts making one's faith such as the giving
of a rod when property was transferred. See FESTUCA.
fiducia (fi-d[y]oo-shee-<}), n. [Latin "an entrusting"]
Roman law. An early form of transfer of title by way
of mortgage, deposit, etc., with a provision for recon
veyance upon payment of the debt, termination of the
deposit, etc.
'The Roman mortgage (fiducia) fell wholly out of use before
the time ofJustinian, having been displaced by the superior
simplicity and convenience of the hypotheca; and in this
respect modern Continental law has followed the Roman."
John Salmond. Jurisprudence 443 (Glanville L. Williams ed.,
10th ed. 1947).
fiducial, adj. (l6c) Of, relating to, or characterized by
confidence in and reliance on another person or thing
<there must be a fiducial bond between a patient and a
doctor>. [Cases: Fraud C==>7; Health C==>578.]
fiducial relationship. See trust relationship under RELA
TIONSHIP.
fiduciarius heres (fi-d[y]oo-shee-air-ee-<}s heer-eez).
[Latin "fiduciary heir"] Roman law. A person formally
named an heir in a testament, but in a fiduciary
capacity, and charged to deliver the succession to the
person designated by the testament.
fiduciarius tutor (fi-d[y]oo-shee-air-ee-ds t[y]oo-tdr).
Roman law. A fiduciary guardian; a person who by ful
filling a trust to free someone in power became his or
her guardian.
fiduciary (fi-d[y]oo-shee-er-ee), n. (17c) 1. A person who
is required to act for the benefit of another person on
all matters within the scope of their relationship; one
who owes to another the duties of good faith, trust,
confidence, and candor <the corporate officer is a fidu
ciary to the corporation>. 2. One who must exercise a
high standard ofcare in managing another's money or
property <the beneficiary sued the fiduciary for invest
ing in speculative securities>. fiduciary, adj. [Cases:
Fraud C==>7.]
"'FidUCiary' is a vague term, and it has been pressed into
service for a number of ends.... My view is that the term
'fiduciary' is so vague that plaintiffs have been able to
claim that fiduciary obligations have been breached when
in fact the particular defendant was not a fiduciary stricto
sensu but simply had withheld property from the plaintiff
in an unconscionable manner." D.W.M. Waters, The Con
structive Trust 4 (1964). dilatory fiduciary (dil-d-tor-ee). A trustee or other
fiduciary who is unreasonably slow in administer
ing an estate.
successor fiduciary. A fidUciary who is appointed to
succeed or replace a prior one.
temporary fiduciary. An interim fiduciary appointed by
the court until a regular fidUciary can be appointed.
fiduciary bond. See BOND (2).
fiduciary contract. Hist. An agreement by which one
party delivers something to another on condition that
the second party will return the thing to the first.
fiduciary debt. A debt founded on or arising from a fidu
ciary relationship, rather than from a solely contractual
relationship.
fiduciary duty. See DUTY (2).
fiduciary heir. See HEIR.
fiduciary-out clause. Mergers & acquisitions. A merger
agreement provision that allows the target corpora
tion to terminate the agreement without |
-out clause. Mergers & acquisitions. A merger
agreement provision that allows the target corpora
tion to terminate the agreement without committing
a breach if a specified condition occurs . The most
common condition is the receipt of a more favorable
offer, but other conditions may also be specified. [Cases:
Corporations C==>S82.]
fiduciary relationship. See RELATIONSHIP.
fiduciary-shield doctrine. Corporations. The principle
that a corporate officer's act cannot be the basis for
jurisdiction over the officer in an individual capacity.
[Cases: Courts C==> 12(2,20); Federal Courts C==>
76.20.]
fief (feef), n. 1. See FEE. 2. See FEUD Metaphorically,
the term refers to an area of dominion, esp. in a corpo
rate or governmental bureaucracy.
fief d'hauberk (feef doh-bairk). See feudum militare
under FEUDUM.
fiefd'haubert. See feudum militare under FEUDUM.
fief-tenant. Hist. The holder of a fief or fee; a feeholder
or freeholder.
field audit. See AUDIT.
field book. A log or book containing a surveyor's notes
that are made on-site and that describe by course and
distance the running of the property lines and the
establishment of the corners of a parcel ofland.
Field Code. 1he New York Code of Procedure of 1848,
which was the first comprehensive Anglo-American
code of civil procedure and served as a model for the
Federal Rules of Civil Procedure . It was drafted by
David Dudley Field (1805-1894), a major law-reformer.
See code pleading under PLEADING (2).
field notes. The notes in a surveyor's field book.
field of invention. See CLASSIFICATION OF PATENTS (2).
field of search. See CLASSIFICATION OF PATENTS (2).
field-of-use restriction. Intellectual property. A license
provision restricting the licensee's use of the licensed
703
property to a defined product or service market or to a
designated geographical area.
field sobriety test. See SOBRIETY TEST.
field stop. See STOP AND FRISK.
field-warehouse financing agreement. The loan agree
ment in a field-warehousing arrangement.
field warehousing. An inventory-financing method by
which a merchant pledges its inventory, which is in the
possession ofa third person (a warehouser) . This is a
method offinancing an inventory that cannot econom
ically be delivered to the creditor or third party. The
borrower segregates part ofthe inventory and places it
under the nominal control ofa lender or third party, so
that the lender has a possessory interest. Cf. floor-plan
financing under FINANCING; PLEDGE.
"Field warehousing is a way of bringing about the security
relationship of a pledge. It is an arrangement for allowing
the pledgor a more convenient access to the pledged goods,
while the goods are actually in the custody and control of a
third person on the pledgor's premises." Business Factors,
Ine. v. Taylor-Edwards Warehouse & Transfer Co., 585 P.2d
825, 828 (Wash. Ct. App. 1978).
"Field warehousing is ... an arrangement whereby a whole
saler, manufacturer, or merchant finances his business
through the pledge of goods remaining on his premises.
The arrangement is valid and effective where there is an
actual delivery to the warehouseman by the bailor who has
hired the warehouseman and given him exclUSive posses
sion of the warehouse goods." In re Covington Crain Co.,
638 F.2d 1362, 1365 (5th Cir. 1981).
fierding court (fyar-ding or feer-ding). Hist. An ancient
court of inferior jurisdiction . Four courts were in
each district or hundred.
fieri (fI-a-rr). [Latin] To be made; to be done . Fieri usu.
appears as part ofthe phrase in fieri. See IN FIERI.
fieri facias (fI-a-rr fay-shee-as). [Latin "that you cause
to be done"] (ISc) A writ of execution that directs
a marshal or sheriff to seize and sell a defendant's
property to satisfy a money judgment. -Abbr.
fa.; Fi. Fa. Cf. LEVARI FACIAS. [Cases: Execution
1,15.]
"It receives its name from the Latin words in the writ (quod
fieri facias de bonis et catallis, that you cause to be made
of the goods and chattels). It is the form of execution
in common use in levying upon the judgment debtor's
personal property." John Bouvier, Bouvier's Law Diction
ary(8th ed. 1914).
"The writ of 'fieri facias' (commonly called a writ of 'fi fa'),
which commanded literally 'that you cause to be made,'
was an early common-law means of enforcing payment on
ajudgment; it was, in effect, an order to the sheriff of the
court to enforce a judgment against the debtor by levy,
seizure, and sale of his personalty to the extent needed to
satisfy ajudgment." 30 Am.Jur. 2d Executions and Enforce
ment ofJudgments 14, at 50-51 (1994).
fieri facias de bonis ecclesiasticis (fI-a-n fay-shee-as
dee boh-nis e-klee-z[h]ee-as-ta-sis). [Latin "that you
cause to be made ofthe ecclesiastical goods"] Hist. A
writ of execution -used when the defendant was a
beneficed clerk who had no lay fee -that commanded
the bishop to satisfy the judgment from the ecclesi
astical goods and chattels of the defendant within 50-percent rule
the diocese. -This was accomplished by issuing a
sequestration to levy the debt out of the defendant's
benefice. This writ was issued after a fieri facias had
been returned nulla bona.
fieri facias de bonis propriis (fI-d-rI fay-shee-ds dee
boh-nis proh-pree-is). [Latin "that you cause to be
made ofhis own goods"] Hist. A writ that executes
on an executor's property when a writ fieri facias de
bonis testatoris is returned by the sheriff nulla bona
or devastavit (a wasting ofthe testator's goods by the
executor).
fieri facias de bonis testatoris (fI-d-rI fay-shee-<ls dee
boh-nls tes-td-tor-is). [Latin "that you cause to be
made of the testator's goods"] Hist. A writ of execu
tion served on an executor for a debt incurred by the
testator.
fieri feci (fI-d-n fee-sI). [Latin "I have caused to be
made"] Hist. A sheriff's return on a fieri facias where
the sheriff has collected, in whole or in part, the sum
to be levied on. -'Ihe return is usu. expressed by the
word "satisfied."
fi.fa. (sometimes cap.) abbr. FIERI FACIAS.
FIFO (fI-foh). abbr. FIRST-IN, FIRST-OUT.
FIFRA. abbr. Federal Insecticide, Fungicide, and Roden
ticide Act. 7 USCA 136-136y.
fifteenth. Hist. A tax of one-fifteenth of all the personal
property ofevery subject. -The tax was levied atinter
vals by act ofParliament. Under Edward III, the value
ofthe fifteenth was assessed and fixed at a specific sum
and did not increase as the wealth of the kingdom
increased thus the tax ceased to actually be one
fifteenth. See QUOD PERSONA NEC PREBENDARII.
Fifteenth Amendment. The constitutional amendment,
ratified in 1870, guaranteeing all citizens the right to
vote regardless ofrace, color, or prior condition ofser
vitude. [Cases: Constitutional Law <8:::: 1482.]
Fifth Amendment. The constitutional amendment,
ratified with the Bill of Rights in 1791, providing that a
person cannot be (1) required to answer for a capital or
otherwise infamous offense unless a grand jury issues
an indictment or presentment, (2) subjected to double
jeopardy, (3) compelled to engage in self-incrimination
on a criminal matter, (4) deprived of Hfe, liberty, or
property without due process oflaw, or (5) deprived
ofprivate property for public use without just com
pensation. [Cases: Constitutional LawC:::3840-4841;
Criminal Law C='393; Double Jeopardy C--'J1-7; Grand
JuryC=>2; Witnesses C=>297.j
Fifth Amendment, pleading the. See TAKE THE FIFTH.
Fifty Decisions. Justinian's rulings that settled con
troversies and eliminated obsolete rules in the law .
The decisions were made in preparation for Justinian's
Digest. -Also termed (in Latin) Quinquaginta Deci
siones.
50 percent plus one. See HALF PLUS ONE.
50-percent rule. (1975) The principle that liability for
negligence is apportioned in accordance with the
percentage of fault that the fact-finder assigns to each
party, that the plaintiffs recovery will be reduced by
the percentage of negligence assigned to the plaintiff,
and that the plaintiffs recovery is barred if the plain
tiffs percentage offault is SO% or more. -Also termed
modified-compamtive-negligence doctrine. Cf. PURE
COMPARATIVE-NEGLIGENCE DOCTRINE. See compara
tive negligence under NEGLIGENCE; APPORTIONMENT OF
LIABILITY. [Cases: Negligence C=S49(1O).]
fighting age. See AGE.
fighting words. (1917) 1. Inflammatory speech that
might not be protected by the First Amendment's
free-speech guarantee because it might incite a violent
response. [Cases: Constitutional lS62; Disor
derly Conduct 133.J 2. Inflammatory speech
that is pleadable in mitigation but not in defense
of a suit for assault. [Cases: Assault and Battery
12.] Also termed fighting talk.
fightwite (fIt-wIt). Hist. A fine imposed against one who
participated in a breach of the peace.
filacer (fil-;>-s;>r). Hist. An officer of the Westminster
superior courts who filed the writs on which process
was made. _ The office was abolished in 1837. Also
spelled filazer.
filacium. See FILUM.
filare (fi-lair-ee), vb. [Law Latin] Hist. To file.
filazer. See FILACER.
file, n. (17c) 1. A court's complete and official record of
a case <the associate went to the courthouse to verify
that the motion is in the file>. 2. A lawyer's complete
record of a case <the paralegal stored the file in three
drawers in her office>. 3. A portion or section of a
lawyer's case record <the janitor found the correspon
dence file behind the copy machine>. 4. A case <Jonah
was assigned the Watson file after Amy left the firm>.
file, vb. (16c) 1. To deliver a legal document to the
court clerk or record custodian for placement into the
official record <Tuesday is the deadline for filing a reply
brief>. -Also termed (in BrE) lodge. 2. To commence
a lawsuit <the seller threatened to file against the
buyer>. 3. To record or deposit something in an orga
nized retention system or container for preservation
and future reference <please file my notes under the
heading "research">. 4. Parliamentary law. To acknowl
edge and deposit (a report, communication, or other
document) for information and reference only without
necessarily taking any substantive action.
filed-rate doctrine. A common-law rule forbidding a
regulated entity, usu. a common carrier, to charge a rate
other than the one on file with the appropriate federal
regulatory authority, such as (formerly) the Interstate
Commerce Commission. -Also termed filed-tariff
doctrine. See TARIFF (3). [Cases: Carriers <8='189; Public
Utilities ~~119.1; Telecommunications C=931.]
file history. See FILE WRAPPER. file-transport protocol. A set of programmed rules
enabling computers to exchange files over the
Internet. Abbr. FTP.
file wrapper. Patents &-Trademarks. The complete record
of proceedings in the Patent and Trademark Office from
the initial application to the issued patent or trademark;
speci., a patent or trademark-registration application
together with all documentation, correspondence, and
any other record of proceedings before the PTa con
cerning that application. Also termed file history;
prosecution history. Cf CERTIFIED FILE HISTORY. [Cases:
Patents <8=' 168(1), 168(2).]
file-wrapper continuation. 1. See CONTINUATION. 2. See
CONTINUATION-IN-PART. -Abbr. FWC.
file-wrapper continuation application. 1. See CONTINU
ATION. 2. See CONTINUATION-IN-PART.
file-wrapper estoppel. See prosecution-history estoppel
under ESTOPPEL.
filia (fil-ee-;, n. [Latin] A daughter. PLfiliae.
filial consortium. See CONSORTIUM.
filiality. See FILIATION (1).
filiated father. See FATHER.
filiation (fil-ee-ay-sh;m). (ISc) 1. The fact or condition
of being a son or daughter; relationship of a child to a
parent. -Despite Bentham's protest (see below),filia
tion is usual in this sense. -Also |
child to a
parent. -Despite Bentham's protest (see below),filia
tion is usual in this sense. -Also termed filiality.
"In English we have no word that will serve to express with
propriety the person who bears the relation opposed to that
of parent. The word chi/dis ambiguous, being employed in
another sense, perhaps more frequently than in this: more
frequently in opposition to a person of full age, an adult,
than in correlation to a parent. For the condition itself we
have no other word than filiation: an ill-contrived term,
not analogous to paternity and maternity: the proper term
would have been fmality: the word filiation is as frequently,
perhaps, and more consistently, put for the act of establish
ing a person in the possession of the condition offiliality."
Jeremy Bentham, An Introduction to the Principles ofMorals
and Legislation 276 n.2 (1823).
2. Judicial determination of paternity. See PATERNITY;
filiated father under FATHER. [Cases: Children Out -of
Wedlock C'-:::>63.]
filiation order. See ORDER (2).
filibuster (fil-;J-b;>s-tdr), n. (ISc) 1. A dilatory tactic,
esp. prolonged and often irrelevant speech making,
employed in an attempt to obstruct legislative action.
-The filibuster is common in the U.S. Senate, where the
right to debate is usu. unlimited and where a filibuster
can be terminated only by a cloture vote oftwo-thirds
of all members. 2. In a deliberative body, a member
in the minority who resorts to obstructive tactics to
prevent the adoption of a measure or procedure that
is favored by the majority. Also termed filibusterer.
3. Hist. A person who, together with others, works to
invade and revolutionize a foreign state in disregard of
international law. See CLOTURE. -filibuster, vb.
filicide (fil-i-sld). (l7c) 1. A person who kills his or her
own child. 2. The act of killing one's own child. Cf.
INFANTICIDE.
705
filing. n. (18c) A particular document (such as a pleading)
in the file of a court clerk or record custodian <the
lawyer argued that the plaintiff's most recent filing
was not germane to the issue before the court>. [Cases:
Pederal Civil Procedure G~~'664; Pleading (~331.]
filing date. See DATE.
filing fee. (1864) A sum of money required to be paid to
the court clerk before a proceeding can start. [Cases:
Clerks of Courts 47.]
filing statns. Tax. One of the four categories under which
a person files an income tax return. Under federal
law, the four categories are: (1) Single; (2) head of house
hold; (3) married filing a joint return; and (4) married
filing separate returns. [Cases: Internal Revenue
3549,4481.J
filiolus (fil-ee-oh-Ias). [LatinJ Hist. A godson. Also
spelled (in old records) filious.
filius (til-ee-as), n. [Latin]l. A son. 2. (pl.) Descendants.
Cf. HERES. PI. filii.
filiusfamilias (fil-ee-as-fa-mil-ee-as), n. [Latin "the son
of a family"] Roman law. An unemancipated son or
daughter, grandson or granddaughter. -Also termed
homo alieni juris.
"Every Roman citizen is either a paterfamilias or a filiusfa
milias, according as he is free from paternal power (homo
sui juris) or not (homo alieni juris). Paterfamilias is the
generic name for a homo sui juris, whether child or adult,
married or unmarried. Filiusfamilias is the generic name for
a homo alieni juris, whether son or daughter, grandson or
granddaughter, and so on." Rudolph Sohm, The Institutes:
A Textbook of the History and System ofRoman Private Law
177 Uames Crawford Ledlie trans., 3d ed. 1907).
filius mulieratus (fil-ee-as myoo-Iee-a-ray-tas). [Law
Latin] Hist. The eldest legitimate son of a woman who
previously had an illegitimate son by the same father;
a legitimate son, whose older brother is illegitimate;
MULIER PUISNE. Cf. bastard eisne under EISNE.
filius nullius (fil-ee-as na-h-as). [Latin "son of nobody"]
Hist. An illegitimate child. Also termed filius
populi.
"I proceed next to the rights and incapacities which apper
tain to a bastard. The rights are very few, being only such
as he can acquire; for he can inherit nothing, being looked
upon as the son of nobody; and sometimes called filius
nul/ius, sometimes filius populi." 1 William Blackstone, Com
memories on the Laws ofEngland 447 (1765).
filius populi. See FILIUS NULLIUS.
filla (fil-a). Hist. The ribbon from which a seal hangs at
the bottom of deeds and other legal documents.
fill a blank. Parliamentary law. To replace a blank in
a motion with one or more proposals from the floor.
See BLANK.
fill-or-kill order. See ORDER (8).
filum (fI-bm). [Latin "thread"] Hist. l. A thread or wire
that holds (esp.legal) papers together to form a file.
This was the ancient method of filing legal papers.
2. An imaginary thread or line passing through the
middle of a stream or road. Also termed (in sense
1) filacium. final-judgment rule
filum aquae (fI-lam ay-kwee). [Latin "thread ofwater"]
A line of water; the middle line ofa stream of water,
supposedly diViding it into two equal parts and usu.
constituting the boundary between the riparian
owners on each side. -Also termed medium filum.
[Cases: Boundaries C=> 12.]
filum forestae (fI-lam for-a-steel. [Latin] The border
ofa forest.
filum viae (fI-lam vI-eel. [Latin)l. The middle line of a
road. 2. The boundarv between landowners on each
side ofa road. [Cases:'Boundaries 19.]
finable (fI-na-bal), adj. (15c) Liable to a fine; subject to
having to pay a fine. Also spelled fineable. [Cases:
Fines C=> 1.5.)
final, adj. (l4c) L (Of a judgment at law) not requiring
any further judicial action by the court that rendered
judgment to determine the matter litigated; concluded.
2. (Of an equitable decree) not requiring any further
judicial action beyond supervising how the decree is
carried out. Once an order, judgment, or decree is
final, it may be appealed on the merits. Cf. INTERLOCU
TORY.
final and conclusive. Terminal and unappealable,
except on grounds of procedural error, fraud, or
mistake.
final agenda. See AGENDA.
final alimony. See permanent alimony under ALIMONY.
final and conclusive. See FINAL.
final appealable judgment. See final judgment under
JUDGMENT.
final appealable order. See final judgment under
JUDGMENT.
final argument. See CLOSING ARGUMENT.
final concord. See CONCORD.
final decision. See final judgment under JUDGMENT.
final-decision rule. See FINAL-JUDGMENT RULE.
final decree. See final judgment under JUDGMENT.
final injnnction. See permanent injunction under
INJUNCTION.
finalis concordia (fi-nay-lis kan-kor-dee-a). [Latin) A
final or conclusive agreement. See final concord under
CONCORD; FINE (1).
finality doctrine. (1942) The rule that a court will not
judicially review an administrative agency's action until
it is final. Also termed final-order doctrine; doctrine
offmality; principle offinality. Cf. FINAL-JUDGMENT
RULE; INTERLOCUTORY APPEALS ACT. [Cases: Admin
istrative Law and Procedure (>704.]
finality rule. See FINAL-JUDGMENT RULE.
final judgment. See JUDGMENT.
final-judgment rule. (1931) The principle that a party
may appeal only from a district court's final decision
that ends the litigation on the merits. Under this
rule, a party must raise all claims oferror in a Single
final-offer arbitration
appeal. -Also termed final-decision rule;finality rule.
28 USCA 1291. See DEATH-KNELL DOCTRINE. Cf.
FINALITY DOCTRINE; INTERLOCUTORY APPEALS ACT;
DEATH-KNELL DOCTRINE. [Cases: Appeal and Error~
66; Federal Courts ~571.]
final-offer arbitration. See ARBITRATION.
final office action. See OFFICE ACTION.
final order. See ORDER (2).
final-order doctrine. See FINALITY DOCTRINE.
final peace. See final concord under CONCORD.
final process. See PROCESS.
final receiver's receipt. The government's acknowledg
ment that it has received full payment from a person for
public land, that it holds the legal title in trust for the
person, and that it will in due course issue the person
a land patent. [Cases: Public Lands ~110.]
final rejection. See REJECTION.
final settlement. See SETTLEMENT (2).
final speech. See CLOSING ARGUMENT.
final submission. See CLOSING ARGUMENT.
finance, n. (I8c) 1. That aspect of business concerned
with the management of money, credit, banking, and
investments <after a brief career in finance, Andrea
decided to go to law school>. 2. The science or study of
the management of money, etc. <Bill sought a degree
in finance because he wanted to be an investment
banker>.
finance, vb. (19c) To raise or provide funds.
finance bill. See BILL (6).
finance charge. An additional payment, usu. in the form
ofinterest, paid by a retail buyer for the privilege ofpur
chaSing goods or services in installments. -This phrase
is increasingly used as a euphemism for interest. See
INTEREST (3). [Cases: Consumer Credit (;:::>52; Usury
C=>53.]
finance company. (20c) A nonbank company that deals
in loans either by making them or by purchasing notes
from another company that makes the loans directly
to borrowers.
commercial finance company. A finance company that
makes loans to manufacturers and wholesalers.
Also termed commercial credit company.
consumer finance company. A finance company that
deals directly with consumers in extending credit.
Also termed small-loan company. [Cases: Consumer
Credit~3.1
sales finance company. A finance company that does
not deal directly with consumers but instead pur
chases consumer instaHment paper arising from the
sale ofconsumer durables "on time." -Also termed
acceptance company.
finance lease. See LEASE.
finance officer. See TREASURER.
financial accounting. See ACCOU!\ITING (1). 706
Financial Accounting Standards Board. The indepen
dent body of accountants responsible for establishing,
interpreting, and improving standards for financial
accounting and reporting. Abbr. FASB. [Cases:
Accountants 8.J
financial asset. See current asset under ASSET.
financial contract. See CONTRACT.
financial-core membership. Union membership in
which a private-company employee pays the union's
initiation fees and periodic dues but is not a full union
member. -Financial-core membership is allowed only
in states without a right-to-work law, where a union
security contract clause can require employees to pay
financial-core membership dues but cannot require full
union membership. The dues are limited to the amount
required to support the union's representational activi
ties, such as collective bargaining. See Communications
Workers ofAm. v. Beck, 487 U.S. 735, 744, 108 S.Ct.
2641, 2648 (1988). -Also termed (in public-employ
ment sector) fair-share membership; agency-shop mem
bership. See UNIO!\I-SECURITY CLAUSE.
Financial Crimes Enforcement Network. A unit in the
U.S. Department of the Treasury responsible for sup-.......
porting law-enforcement efforts against domestic and
international financial crimes. Abbr. FinCEN.
financial deregulation. See DEREGULATION.
financial futures. See FUTURES (1).
financialinstitution. (1821) A business, organization, or
other entity that manages money, credit, or capital, such
as a bank, credit union, savings-and-Ioan association,
securities broker or dealer, pawnbroker, or investment
company. [Cases: Banks and Banking ~1; Building
and Loan Associations I.]
financial interest. See INTEREST (2).
financial intermediary. (1873) A financial entity
usu. a commercial bank -that advances the transfer
of funds between borrowers and lenders, buyers and
sellers, and investors and savers.
Fiuancial Management Service. A unit in the U.S.
Department of the Treasury responsible for develop
ing and managing systems for moving the U.S. govern
ment's cash by assisting other agencies in collecting and
disbursing funds; collecting and publishing financial
information; and collecting delinquent debts. Abbr.
FMS.
financial market. See MARKET.
financial planner. A person whose business is advising
clients about personal finances and investments. _
Upon completing a certification program, such a person
is called a certified financial planner. Abbr. CPP.
financial report. See FINANCIAL ST |
person
is called a certified financial planner. Abbr. CPP.
financial report. See FINANCIAL STATEMENT.
financial-responsibility act. (1930) A state statute con
ditioning license and registration ofmotor vehicles on
proof of insurance or other financial accountability.
[Cases: Automobiles Insurance C~~'2737.]
financial-responsibility clause. (1946) Insurance. A pro
vision in an automobile insurance policy stating that
the insured has at least the minimum amount ofliabil
ity insurance coverage required by a state's financial
responsibility law. [Cases: Insurance (;=>2737, 2756.]
financial restatement. A report correcting material
errors in a financial statement, esp. to adjust profits
and losses after an accounting procedure has been
disallowed.
financials. Slang. Financial statements.
financial secretary. 1. See SECRETARY. 2. See TREA
SURER.
Financial Services Agency. The regulatory body that
oversees the United Kingdom's financial-services
industry, including exchanges and related entities.
Formerly termed Securities and Investment Board.
financial statement. 1. A balance sheet, income state
ment, or annual report that summarizes an individual's
or organization's financial condition on a specified date
or for a specified period by reporting assets and liabili
ties. Also termedfinancial report. Cf. FINANCING
STATEMENT.
certified financial statement. A financial statement
examined and reported by an independent public or
certified public accountant. SEC Rule 12b-2 (17 CPR
240.12b-2).
consolidated financial statement. The financial report
of a company and all its subsidiaries combined as if
they were a single entity.
normalized financial statement. A statement in
which some components have been adjusted to
exclude anomalies, such as unusual and nonrecur
ring elements, and nonoperating assets or liabilities,
so the statement may be compared with others.
2. INCOME-AND-EXPENSE DECLARATION.
financing, n. (19c) 1. The act or process ofraising or pro
viding funds. 2. Funds that are raised or proVided.
finance, vb.
asset-based financing. A method of lending in which
lenders and investors look primarily to the cash flow
from a particular asset for repayment.
construction financing. See interim financing.
debt financing. The raising offunds by issuing bonds or
notes or by borrowing from a financial institution.
equity financing. 1. The raising of funds by issuing
capital securities (shares in the business) rather
than making loans or selling bonds. 2. The capital
so raised.
floor-plan financing. A loan that is secured by mer
chandise and paid off as the goods are sold . Usu.
such a loan is given by a manufacturer to a retailer
or other dealer (as a car dealer). Also termed floor
planning. Cf. FIELD WAREHOUSING.
gap financing. Interim financing used to fund the
difference between a current loan and a loan to be received in the future, esp. between two long-term
loans. See bridge loan under LOAN.
interim financing. A short-term loan secured to cover
certain major expenditures, such as construction
costs, until permanent financing is obtained. Also
termed construction financing.
internal financing. A funding method using funds gen
erated through the company's operations rather than
from stock issues or bank loans.
link financing. The obtaining of credit by depositing
funds in another's bank account to aid the other in
obtaining a loan.
outside financing. The raising offunds by selling stocks
(equity financing) or bonds (debt financing).
permanent financing. A long-term loan obtained to
repay an interim loan, such as a mortgage loan that
is used to repay a construction loan.
project financing. A method of funding in which the
lender looks primarily to the money generated by a
single project as security for the loan . This type of
financing is usu. used for large, complex, and expen
sive single-purpose projects such as power plants,
chemical-processing plants, mines, and toll roads.
1he lender is usu. paid solely or primarily from the
money generated by the contracts for the facility's
output (sometimes paid by customers directly into an
account maintained by the lender), such as the elec
tricity sold by a power plant. The lender usu. requires
the facility to be developed and owned by a special
purpose entity (sometimes called a bankruptcy
remote entity), which can be a corporation, limited
partnership, or other legal entity, that is permitted to
perform no function other than developing, owning,
and operating the facility. See SINGLE-PURPOSE
PROJECT; SPECIAL-PURPOSE ENTITY; BANKRUPTCY
REMOTE ENTITY.
financing agency. See AGENCY (1).
financing statement. (1954) A document filed in the
public records to notify third parties, usu. prospective
buyers and lenders, of a secured party's security interest
in goods or real property. See UCC 9-102(a)(39). Cf.
FINANCIAL STATEMENT. [Cases: Secured Transactions
FinCEN. abbr. FINANCIAL CRIMES ENFORCEMENT
NETWORK.
find, vb. (bef. 12c) To determine a fact in dispute by
verdict or decision <find guilty> <found that no duty
existed>. Cf. HOLD (2).
finder. (13c) 1. An intermediary who brings together
parties for a business opportunity, such as two com
panies for a merger, a borrower and a financial institu
tion, an issuer and an underwriter of securities, or a
seller and a buyer ofreal estate . A finder differs from
a broker-dealer because the finder merely brings two
parties together to make their own contract, while a
broker-dealer usu. participates in the negotiations. See
finder of fact 708
INTERMEDIARY. 2. A person who discovers an object,
often a lost or mislaid chattel.
finder of fact. See FACT-FINDER.
finder's fee. (1937) 1. The amount charged by one who
brings together parties for a business opportunity. 2.
The amount charged by a person who locates a lost or
missing item and returns it to its owner.
finder's-fee contract. (1959) An agreement between a
finder and one of the parties to a business opportu
nity.
finding. See FINDING OF FACT.
finding of fact. (18c) A determination by a judge, jury,
or administrative agency of a fact supported by the
evidence in the record, usu. presented at the trial or
hearing <he agreed with the jury's finding of fact
that the driver did not stop before proceeding into
the intersection>. Often shortened to finding. See
FACT-FINDER. Cf. CONCLUSION OF FACT; CONCLUSION
OF LAW.
concurrent finding. (usu. pl.) Identical factual findings
by two different tribunals on a specific issue of fact.
essential finding. Military law. A military tribunal's
determination ofa collateral pretrial motion.
general finding. An undifferentiated finding in favor
of one party.
special finding. 1. (usu. pl.) A finding of the necessary
and ultimate facts to support a judgment in favor
of one party. 2. Military law. A military tribunal's
finding that directly relates to the determination of
guilt or innocence.
fine, n. (13c) 1. An amicable final agreement or com
promise of a fictitious or actual suit to determine the
true possessor of land. -The fine was formerly used
as a form of conveyance to disentail an estate. -Also
termed final concord;finalis concordia. See FOOT OF
THE FINE.
"A peculiar and persistent use of the writ [of covenant]
was in levying a fine. A fine finalis concordia was
the compromise of a suit, settled upon terms approved
by the court, The dispute, while it might be a reality, was
more often fictitious, and was chiefly used as a means
of conveying land .... Soon after IGlanvill's] book was
written, an innovation was made in the procedure which
endured until 1833. The terms of the compromise, agreed
by the parties and approved by the judges, were entered
upon a threefold indenture, one of the parts being given
to each of the litigants and the third the 'foot' or bottom
of the document being kept among the records of the
court. The parties thus obtained incontestable evidence
and abundant security, and either could sue the other ifthe
agreement were not implemented." C.H.S. Fifoot, History
and Sources of the Common Law: Tort and Contract 256
(1949).
"Unlike the recovery, which was a real action, the fine was a
compromised fictitious personal action, originally designed
as a method of ensuring security in conveyancing and only
later being employed for the purpose of barring estates
tail. In outline, it operated in the following manner, The
intending purchaser brought an action, begun by writ of
covenant, against the intending vendor. The parties then
applied to the court to compromise the action; by the terms
of the compromise (finis) the intending vendor admitted that the land belonged to the intending purchaser because
he had given it to him, and the terms of the compromise
were recorded in the court records. The fine owed its popu
larity as a means ofconveyancing to two factors, neither of
which was present in the standard method of conveyance
by means of feoffment, First, the enrolling in the court
records provided evidence of the transaction which was
both permanent and free from the danger of forgery.
Secondly, the effect of the fine was to set running a short
period of limitation at the expiration ofwhich all claims to
the land were barred. It was this second aspect which made
the device attractive as a means of 'barring' fees tail." Peter
Butt, Land Law 102-03 (2d ed. 1988).
executed fine. Hist. A fine made on acknowledgment of
the right of the grantee to land given to him as a gift
from the grantor. -1his was abolished in England in
1833. 3 & 4 Will. 4, ch. 74.
2. FINE FOR ALIENATION. 3. A fee paid by a tenant to
the landlord at the commencement of the tenancy to
reduce the rent payments, 4. Hist. A money payment
from a tenant to the tenant's lord.
common fine. A sum of money due from a tenant to
a lord to defray the cost of a court leet or to allow
the litigants to try the action closer to home. -Also
termed head-silver.
S. A pecuniary criminal punishment or civil penalty
payable to the public treasury. [Cases: Fines C=.1.5.J
fine, vb.
day fine. A fine payable over time, usu. as a percentage
of the defendant's earnings on a weekly or monthly
basis.
excessive fine. (16c) 1. Criminal law. A fine that is
unreasonably high and disproportionate to the
offense committed. -'The Eighth Amendment pro
scribes excessive fines. An example of an excessive
fine is a civil forfeiture in which the property was not
an instrumentality ofthe crime and the worth ofthe
property was not proportional to the owner's culpa
bility. [Cases: Fines C=;::; 1.3.] 2. A fine or penalty that
seriously impairs one's earning capacity, esp. from a
business.
fresh fine. Hist. A fine levied within the past year.
fineable. See FINABLE.
Fine and Recovery Act. Hist. An English statute, enacted
in 1833, that abolished the use of fines as a method of
conveying title to land. 3 & 4 Will. 4, ch. 74. See FINE
(1).
fine annullando leva to de tenemento quod fuit de
antiquo dominico (fI-nee a-na-lan-doh la-yay-to dee
ten-a-men-toh kwod fyoo-it dee an-tI-kwoh da-min
<'l-koh). [Latin "a fine to be annulled levied from a
tenement which was of ancient demesne"] Hist. A
writ for disannulling a conveyance ofland in ancient
demesne to the lord's prejudice.
fine capiendo pro terris (fI-nee kap-ee-en-doh proh
ter-is). [Latin "a fine to be taken for lands"J Hist. A
writ that an imprisoned felon could use in some cir
cumstances to obtain release from jail and to recover
lands and goods taken during imprisonment.
709 finis
fine for alienation. Hist. A fee paid by a tenant to the lord
upon the alienation of a feudal estate and substitution of
a new tenant. -It was payable by all tenants holding by
knight's service or tenants in capite by socage tenure.
Often shortened to fine.
fine for endowment. Hist. A fee paid by a widow of a
tenant to the tenant's lord. -If not paid, the widow
could not be endowed of her husband's land.
finem facere (fI-n~m fay-s~-ree). [Latin] Hist. 1. To make
a composition or compromise; to relinquish a claim in
exchange for consideration.
"In the thirteenth century the king's justices wield a wide
and a 'common law' power of ordering that an offender
be kept in custody. They have an equally wide power of
discharging him upon his 'making fine with the king.' We
must observe the language of the time. In strictness they
have no power to 'impose a fine.' No tribunal of this period,
unless we are mistaken, is ever said to impose a fine. To
order the offender to pay so much money to the king -this
the judge may not do. If he did it, he would be breaking or
evading the Great Charter, for an amercement should be
affeered, not by royal justices, but by neighbours of the
wrongdoer. What the judges can do is this: they can
pronounce a sentence of imprisonment and then allow |
the
wrongdoer. What the judges can do is this: they can
pronounce a sentence of imprisonment and then allow the
culprit to 'make fi ne,' that is to make an end (finem facere)
of the matter by paying or finding security for a certain
sum of money. In theory the fine is a bilateral transaction, a
bargain; it is not 'imposed,' it is 'made.'" 2 Frederick Pollock
& Frederic W. Maitland, The History of English Law Before
the Time of Edward I 517 (2d ed. 1899).
2. To make a settlement of a penalty. -Magna Carta
(ch. 55) specifically limited "[a]lI fines which were made
with us unjustly and contrary to the law ofthe land ..."
(Omnes fines qui injuste et contra legem terrae facti sunt
nobiscum).
fine non capiendo pro pulchre placitando (fI-nee non
kap-ee-en-doh proh pdl-kree plas-~-tan-doh). [Latin
"a fine not to be taken for pleading fairly"] Hist. A writ
prohibiting court officers from taking fines for fair
pleading (i.e., beaupleader).
fine print. (1951) The part of an agreement or
document usu. in small, light print that is not easily
noticeable referring to disclaimers, restrictions, or
limitations.
fine pro redisseisina capiendo (fI-nee proh re-dis-see
zin-~ kap-ee-en-doh). [Law Latin "a fine to be taken for
again disseising"] Hist. A writ that entitled a person
imprisoned for twice dispossessing someone (redissei
sin) to release upon payment of a reasonable fine.
fines Ie roy (fmz l~ roy). [Law French] Hist. The king's
fines. _ A fine or fee that was paid to the monarch for
an offense or contempt.
fine sur cognizance de droit, comme ceo que il ad de son
done (fm s~r kon-az~nts d~ droyt, kom say-oh kweel
ad da sawn dawn). [Law French "a fine upon acknowl
edgment of the right, as that which he has of his gift"]
His!. The most common fine of conveyance, by which
the defendant (also called the deforciant) acknowledged
in court that he had already conveyed the property to
the cognizee. _ This form ofconveyance took the place
of an actual livery of seisin. See FINE (1). "But, in general, the first species of fine, 'sur cognizance
de droit come ceo, etc.,' is the most used, as it conveys
a clean and absolute freehold, and gives the cognizee a
seisin in law, without an actual livery; and is therefore
called a fine executed, whereas the others are but execu
tory." 2 William Blackstone, Commentaries on the Laws of
England 353 (1766).
fine sur cognizance de droit tantum (fm sar kon-a-zants
da droyt tan-t<lm). [Law French "fine upon acknowl
edgment of the right merely"] Hist. A fine of convey
ance that does not acknowledge a prior conveyance of
land. -This type of fine was used to convey reversion
ary interests that is, interests that did not require
acknowledgment ofan earlier livery ofseisin. See FINE
(1).
fine surconcessi! (fm S<lr k~n-ses-it). [Law French] Hist.
A species of conveyance in which the cognizor does
not acknowledge the cognizee's preceding right in land
but grants the cognizee an estate de novo, usu. for life
or a term of years, by way of supposed composition.
See FINE (1).
fine sur done, grant et render (fm S<lr dawn, grant
ay ren-d~r). [Law French "fine upon gift, grant and
render"] Hist. A double conveyance, consisting of a
fine sur cognizance de droit come ceo que il ad de son
done and afine sur concessit, used to convey particular
limitations ofestates. -For example, after acknowledg
ment of the cognizee's right in the land, the cognizee
would grant back to the cognizor or a third party some
other estate in the land. See FINE (1).
finger, vb. (1930) Slang. To identify (a person) as a per
petrator, usu. ofa crime <in his grand-jury testimony,
Vinson fingered Bauer as the gunman>.
finger pillory. See PILLORY.
fingerprint, n. (1859) 1. The distinctive pattern oflines
on a human fingertip <no two fingerprints are identi
cal>. [Cases: Criminal Law C=>475.5.] 2. The impres
sion of a fingertip made on any surface <the detective
found several fingerprints on the knife>. 3. An ink
impression of the pattern of lines on a fingertip, usu.
taken during the booking procedure after an arrest
<after Dick had his fingerprints taken, he was put in
the drunk tank>. -Also termed print; thumbprint.
Cf. DNA IDENTIFICATION. fingerprint, vb. finger
printing, n.
fingerprint claim. See PATENT CLAIM.
finire (fi-nI-ree), vb. [Law Latin] Hist. 1. To fine; to pay a
fine. 2. To end or finish a matter.
finis (fI-nis or fin-is). [Latin] (ISc) Hist. 1. Boundary or
limit. 2. The compromise of a fine of conveyance. See
FINE (1).
"The parties then applied to the court to compromise the
action; by the terms of the compromise (finis) the intending
vendor admitted that the land belonged to the intending
purchaser because he had given it to him, and the terms of
the compromise were recorded in the court records." Peter
Butt, Land Law 102 (2d ed. 1988).
3. A fine, or payment of money made to satisfy a claim
of criminal penalty.
710 finitio
jinitio (fi-nish-ee-oh). [Law Latin] Hist. An ending;
death.
jinium regundorum actio (fI-nee-;)m ri-g;)n-dor-;)m
ak-shee-oh). [Latin "action for regulating boundar
ies"] Roman law. An action for settling a boundary
dispute.
FlO. abbr. Free in and out. This bill-of-Iading term
means that the shipper supervises and pays for loading
and unloading ofcargo. [Cases; Shipping C-:::> 1l0.]
FIOS. abbr. Free in and out stowed . This bill-of-lading
term means that the shipper supervises and pays for
loading, unloading, and stowing. [Cases; Shipping (;:::::>
110.]
firdfare. See FERDFARE.
fire, vb. (1885) To discharge or dismiss a person from
employment; to terminate as an employee. [Cases:
Labor and Employment (;:::J82S.]
firearm. (17c) A weapon that expels a projectile (such as
a bullet or pellets) by the combustion ofgunpowder or
other explosive. [Cases; Weapons (;:::J8.]
firebote. See housebote under BOTE (1).
firebug. See INCENDIARY (I).
firefighter's rule. A doctrine holding that a firefighter,
police officer, or other emergency professional may
not hold a person, usu. a property owner, liable for
unintentional injuries suffered by the professional in
responding to the situation created or caused by the
person. Also termed fireman's rule. [Cases; Negli
gence (;:::J570, 1315.]
fire insurance. See DISURANCE.
fireman's rule. See FIREFIGHTER'S RULE.
fire ordeal. See ordeal by fire under ORDEAL.
fire sale. See SALE.
firing squad. (l9c) 1. A group of persons assembled to
carry out a capital-punishment sentence by shooting
the prisoner with high-powered rifles at the same time
from a short distance. 2. A military detachment that
fires a salute, usu. during the burial ceremony for the
person being honored.
firm, n. (lSc) 1. The title under which one or more
persons conduct business jOintly. 2. The association
by which persons are united for business purposes .
Traditionally, this term has referred to a partnership,
as opposed to a company. But today it frequently refers
to a company. See LAW FIRM.
firma. [Latin]l. A lease. 2. A corporation or partner
ship.
firma burgi (far-m;) bar-jI). [Law Latin "the farm ofthe
borough"] Hist. A person's right to take the profits of a
borough. The monarch or the borough's lord granted
this right to a person upon payment of a fixed sum.
jirmafeodi. See FEE FARM.
firma noctis. See NOCTEM DE FIRMA. jirmaratio (f;)r-m,,-ray-shee-oh). [Law Latin] His/. A
tenant's right to the lands and tenements leased to
him.
firmarius (f"f-mair-ee-;)s). [Law Latin] A person entitled
to take rent or profits. Cf. FERMER (2).
jirma social (feer-mah soh-syahl). [Spanish] Spanish
law. An officially registered name of a corporation or
partnership.
firm bid. See BID (2).
firm-commitment underwriting. See UNDERWRITING.
firme. See FARM.
jirmitas (far-ma-tas). [Law Latin] Hist. An assurance of
some privilege by deed or charter.
firm offer. See irrevocable offer under OFFER.
firm opportunity. A law-firm lawyer's opportunity to
profit individually from a venture from which the firm
might benefit, as opposed to the individual lawyer, and
as to which the lawyer must therefore defer to the firm
and turn over any income to the firm.
firm-opportunity doctrine. See CORPORATE-OPPORTU
NITY DOCTRINE.
First Amendment. The constitutional amendment,
ratified with the Bill of Rights in 1791, guaranteeing
the freedoms of speech, religion, press, assembly, and
petition. [Cases: Constitutional Law C='1150-1205.]
first-blush rule. The common-law principle that allows
a court to set aside a verdict as excessive because the
verdict causes the mind to immediately conclude that
it resulted from passion or prejudice on the part ofthe
jury. [Cases: Federal Civil Procedure C:~)2345; New
Trial (;:::J77(2).]
first cause. See proximate cause under CAUSE (1).
first chair, n. (1952) Slang. The lead attorney in court for
a given case <despite having worked at the firm for six
years, the associate had yet to be first chair in a jury
trial>. -first-chair, vb.
first cousin. See COUSIN (1).
first-degree, adj. See DEGREE (2).
first-degree amendment. See primary amendment under
AMENDMENT (3).
first-degree manslaughter. See MANSLAUGHTER.
first-degree murder. See MURDER.
first-degree principal. See principal in the first degree
under PRINCIPAL (2).
first-degree sexual conduct. (1979) Sexual battery that
involves an aggravating factor, as when the perpetrator
commits the offense against a minor or when the per
petrator commits the offense in the course ofcommit
ting another crime, such as a burglary. Also termed
criminal sexual conduct in the first degree. [Cases:
Assault and Battery e::-~)59.]
first devisee. See DEVISEE.
first-filed rule. See FIRST-TO-FILE RULE.
first-filing rule. See FIRST-TO-FILE RULE.
711
first fruits. 1. Hist. One year's profits from the land of a
tenant in capite, payable to the Crown after the tenant's
death. -Also termed primer seisin. 2. Hist. Eccles. law.
The first year's whole profits of a clergyman's benefice,
paid by the incumbent to the Pope, or (after the break
with Rome) to the Crown . This revenue was later
termed "Queen Anne's Bounty" when it was converted
to a fund to benefit the poor. -Sometimes written
firstfruits. -Also termed primitiae; primitive; annates;
annats; Queen Anne's Bounty.
firsthand knowledge. See personal knowledge under
KNOWLEDGE.
first impression, case of. See CASE.
first-in, first-out. An accounting method that assumes
that goods are sold in the order in which they were pur
chased that is, the oldest items are sold first. -Abbr.
FIFO. Cf. LAST-IN, FIRST-OUT; NEXT-IN, FIRST-OUT.
first instance, court of. See trial court under COURT.
first-inventor defense. Patents. In a suit alleging infringe
ment ofa business-method patent, a statutory affirma
tive defense made out by showing that the defendant
was using the business method commercially for at least
a year before the plaintiff filed the patent application .
The First Inventor Defense Act of 1999 is codified at 35
lJSCA 273. [Cases: Patents (;:::::>283(1).]
first lien. See LIEN.
First Lord ofthe Admiralty. Hist. In Britain, a minister
and one of the lord commissioners who presided over
the navy . The First Lord was assisted by other lords,
called Sea Lords, and various secretaries.
First Lord ofthe Treasury. English law. The chief officer
in charge ofthe treasury . Today, this position is held
by the Prime Minister.
first magistrate. See MAGISTRATE (1).
first meeting. Archaic. Criminal law. The first contact
between a killer and a victim after the killer has been
informed ofthe victim's insulting words or conduct that
provoked the killing . If the killing occurred during
the first meeting, a murder charge could be |
's insulting words or conduct that
provoked the killing . If the killing occurred during
the first meeting, a murder charge could be reduced to
manslaughter. See HEAT OF PASSION.
first meeting ofcreditors. See creditors' meeting under
MEETING.
first mortgage. See MORTGAGE.
first-mortgage bond. See BOND (3).
first name. See personal name under NAME.
first-named insured. See primary insured under
INSURED.
first of exchange. Archaic. The first in a series of drafts
(bills ofexchange) drawn in duplicate or triplicate for
safety in their delivery, the intention being that the
acceptance and payment of anyone of them, usu. the
first to arrive, cancels the others in the set.
first offender. See OFFENDER.
first office action. See OFFICE ACTION.
first option to buy. See RIGHT OF PREEMPTION. first-to-invent system
first-party insurance. See INSURANCE.
first-past-the-post voting. See plurality voting under
VOTING.
first policy year. Insurance. The first year of a life
insurance policy that is to be automatically renewed
annually. This statutory phrase prohibits an insurer
from using the policy's suicide exclusion as a defense
and refusing payment on the policy when an insured
commits suicide after the first year of the policy. The
insurer can invoke the suicide exclusion as a defense
to payment only if the insured commits suicide in the
first policy year. [Cases: Insurance ~~2434(1), 2594(5),
3125.]
first purchaser. See PURCHASER (2).
first refusal, right of. See RIGHT OF FIRST REFUSAL.
first-sale doctrine. (1963) L Copyright. The rule that the
purchaser ofa physical copy ofa copyrighted work, such
as a book or CD, may give or sell that copy to someone
else without infringing the copyright owner's exclusive
distribution rights . With regard to that physical copy,
the copyright owner's distribution right is said to be
exhausted. 17 USCA 109(a). [Cases: Copyrights and
Intellectual Property (;:::::>38.5.] 2. Patents. The principle
that the buyer ofa patented article has the right to use,
repair, and resell the article without interference from
the patentee . The patentee may still retain control of
the article through terms in the license or sale contract.
See PATENT-EXHAUSTION DOCTRINE. [Cases: Patents
(;:::::> 191.]
first taker. See TAKER.
first-to-file rule. (1969) Civil procedure. 1. The principle
that, when two suits are brought by the same parties,
regarding the same issues, in two courts ofproper juris~
diction, the court that first acquires jurisdiction usu.
retains the suit, to the exclusion of the other court.
The court with the second-filed suit ordinarily stays
proceedings or abstains. But an exception exists if
the first-filed suit is brought merely in anticipation of
the true plaintiff's suit and amounts to an improper
attempt at forum-shopping. See ANTICIPATORY FILING.
[Cases: Courts (~~)475, 493, 514; Federal Courts (;:::::>
1145.] 2. The doctrine allowing a party to a previously
filed lawsuit to enjoin another from pursuing a later~
filed action. -Also termed first-filing rule; first-filed
rule; priority-jurisdiction rule. [Cases: Courts (;::'480,
507,508,516; Federal Courts (;:::::> 1145.]
first-to-file system. Patents. The practice of granting
priority to the first person to file a patent application.
Most ofthe world uses a first-to~file patent system; the
only major exception is the United States, which grants
priority to the first inventor. Cf. FIRST-TO~INVENT
SYSTEM. [Cases: Patents ~-c:>90(1).1
first-to-invent system. Patents. The practice ofawarding
a patent to the first person to create an invention, rather
than the first to file a patent application . Because the
first inventor is not necessarily the first person to file
for a patent, an interference hearing is held to decide
who is entitled to the patent. This system is used only
in the United States. See CONCEPTION OF INVENTION; I fish royal. Hist. Whales, sturgeon, and porpoises that,
PRIORITY OF INVENTION. Cf. FIRST-TO-FILE SYSTEM.
[Cases: Patents (::::090(1).]
first user. See SENIOR USER.
FISA. abbr. FOREIGN INTELLIGENCE SURVEILLANCE
ACT.
FISC. abbr. UNITED STATES FOREIGN INTELLIGENCE SUR
VEILLANCE COURT.
fisc (fisk), n. [Latinfiscusl The public treasury. -Also
spelledfisk.
fiscal (fis-kal), adj. (16c) 1. Of or relating to financial
matters <fiscal year>. 2. Ofor relating to public finances
or taxation <the city's sound fiscal policy>.
fiscal agent. See AGENT (2).
fiscal officer. See OFFICER (1).
fiscal period. See fiscal year under YEAR.
fiscal year. See YEAR.
fiscus (fis-kas), n. [Latin "the basket" or "moneybag"Jl.
Roman law. The emperor's treasury. -In later Roman
times, the term also included the treasury of the state.
See AERARIUM. 2. Hist. The treasury of a monarch
(as the repository of forfeited property), a noble, or
any private person. 3. The treasury or property of the
state as distinguished from the private property ofthe
monarch. Cf. HANAPER.
fishery. (16c) 1. A right or liberty of taking fish. -Fishery
was an incorporeal hereditament under old English
law. Also termed piscary. [Cases: Fish (::::03.]
free fishery. An exclusive right of fishery, existing by
grant or prescription from the monarch, to take fish
in public water such as a river or an arm ofthe sea.
Also termed libera piscaria.
right offishery. The right of persons to fish in public
waters, subject to federal and state restrictions and
regulations, such as fishing seasons, licenSing, and
catch limits.
severalfishery. A right to fish in waters that are neither
on one's own land nor on the land of a person who
granted the right to fish.
2. A fishing ground.
common fishery. A fishing ground where all persons
have a right to take fish. Cf. common ofpiscary under
COMMON.
fishing expedition. An attempt, through broad discov
ery requests or random questions, to elicit information
Also from another party in the hope that something relevant
might be found; esp., such an attempt that exceeds the
scope ofdiscovery allowed by procedural rules.
termedfishing trip. [Cases: Federal Civil Procedure
1272; Pretrial Procedure (::::028.]
"No longer can the time-honored cry of 'fishing exped i
tion' serve to preclude a party from inquiring into the facts
underlying his opponent's case." Hickman v, Taylor, 329
U.S. 495, 507, 67 S.Ct. 385, 392 (1947). when thrown ashore or caught near the English coast,
become Crown property.
fisk. See FISC.
fistuca. See FESTUCA.
fithwite. See FUTHWITE.
fitness for a particular purpose. See implied warranty of
fitness for a particular purpose under WARRANTY (2).
fitness hearing. See transfer hearing under HEARING.
fit occupantis (fit ahk-ya-pan-tis). [Latin] Hist. It becomes
the property of the captor.
Five Mile Act. Hist. A 1665 English act prohibiting
Puritan ministers from teaching or coming within five
miles of any town where they had held office if they
refused to pledge that they would not seek to overturn
the Church of England. -The Act was repealed in
1689.
501 (c)(3) organization. See CHARITABLE ORGANIZA
TION.
529 plan. A state-sponsored plan administered by
certain investment companies to allow parents and
others to accumulate pretax income to pay for a benefi
ciary's (usu. a child's) college education. _ Anyone can
contribute to an account set up under 529 plan gUide
lines. Withdrawals made for educational purposes are
taxed at the beneficiary's tax rate; other withdrawals
trigger an additional 10% penalty. IRC (26 USCA)
529. [Cases: Internal Revenue G-~4053.1
fix, n. (1816) I. A dose ofan illegal drug <the defendant
testified that he robbed the store because he needed to
buy a fix>. 2. A navigational reading.
fix, vb. (14c) 1. To announce (an exchange price, interest
rate, etc.) <interest was fixed at 6%>. 2. To establish
(a person's liability or responsibility) <you cannot fix
liability on the defendant without evidence>. 3. To
agree with another to establish (a price for goods or
services), often illegally <representatives of Acme and
Widget secretly met to fix prices for their companies'
products>_ See PRICE-FIXING. 4. To influence (an action
or outcome, esp. a sports event) by improper or illegal
means <after losing the election, the challenger claimed
that the incumbent had fixed the election>.
fix a day to which to adjourn. See adjourn to a day
certain under ADJOURN.
fixation. Copyright. The process or result of recording a
work of authorship in tangible form so that it can be
copyrighted under federal law. -Fixation occurs, for
instance, when a live television broadcast is transmit
ted and Simultaneously recorded on videotape. [Cases:
Copyrights and Intellectual Property 12(1).]
fix bail, vb. (18c) To set the amount and terms of bail
<after hearing the officer's testimony, the judge fixed
bail for the defendant at $100,000>. See BAIL.
fixed annuity. See ANNUITY.
fixed asset. See capital asset (1) under ASSET.
fixed-benefit plan. See defined pension plan under
PENSION PLAK.
fixed capital. See CAPITAL.
fixed charge. Seefixed cost under COST (1).
fixed cost. See COST (1).
fixed debt. See DEBT.
fixed-dollar investment. See INVESTMENT.
fixed expense. See fixed cost under COST (1).
fixed fee. See FEE (1).
fixed in a tangible medium of expression. Copyright.
(Of a work) embodied in a physical form that is made
by the author or under the author's authority and that
is either permanent or stable enough to be perceived,
reproduced, or otherwise communicated. - A work
consisting of sounds, images, or both that is being
transmitted is "fixed" ifit is recorded at the same time
that it is transmitted. [Cases: Copyrights and Intellec
tual Property 12(1).]
fixed income. See INCOME.
fixed-income investment. See INVESTMENT.
fixed-income security. See SECURITY.
fixed liability. See fixed debt under DEBT.
fixed opinion. See OPINION (3).
fixed price. See PRICE.
fixed-price contract. See CONTRACT.
fixed-rate mortgage. See MORTGAGE.
fixed-return dividend. See DIVIDEND.
fixed sentence. See SENTENCE.
fixed sentencing. See mandatory sentencing under 5EK
TENCING.
fixed-term lease. Oil & gas. An oil-and-gas lease for a
fixed period of time, lacking the indefinite "so long
thereafter" provision commonly found in such leases.
Cf. HABENDUM CLAUSE. [Cases: Mines and Minerals
fixed trust. See TRUST.
fixing a jury. See JURY-FIXING.
fixture. (18c) Personal property that is attached to land
or a building and that is regarded as an irremovable
part of the real property, such as a fireplace built
into a home. See UCC 9-102(a)(41) . Historically,
personal property becomes a fixture when it is physi
cally fastened to or connected with the land or building
and the fastening or connection was done to enhance
the utility ofthe land or building. Ifpersonal property
has been attached to the land or building and enhances
only the chattel's utility, it is not a fixture. For example,
ifbricks are purposely stacked to form a wall, a fixture
results. But if the bricks are merely stacked for conve
nience until used for some purpose, they do not form a
fixture. Also termed permanent fixture; immovable
fixture. Cf. IMPROVEMENT. (Cases: Fixtures C=' 1.J
"A fixture can best be defined as a thing which, although
originally a movable chattel, is by reason of its annexation to, or association in use with land, regarded as a part of
the land .... The law of fixtures concerns those situations
where the chattel annexed still retains a separate identity
in spite of annexation, for example a furnace or a light
fixture. Where the chattel annexed loses such identity, as
in the case of nails. boards, etc., the problem becomes one
of accession." Ray Andrews Brown. The Law of Personal
Property 137, at 698 & n.1 (2d ed. 1955).
"Broadly. goods can be classified for the purposes of [UCC
l 9-313 into three categories: those that remain 'pure
goods,' those so substantially integrated into real estate as
to become real estate themselves, 'pure realty,' and those
in the gray area that would pass in a deed to the real estate
but that retain separate status as personal property. These
last are fixt |
the gray area that would pass in a deed to the real estate
but that retain separate status as personal property. These
last are fixtures." 4 James J. White & Robert S. Summers.
Uniform Commercial Code 33-8, at 338 (4th ed. 1995).
agricultural fixture. A fixture erected on leased land
for use in agricultural pursuits, such as tilling the
land or keeping farm animals . These fixtures mayor
may not be removable at the end of the lease. [Cases:
Fixtures C=' 16.]
domestic fixture. Removable personal property
provided by a tenant for the tenant's personal comfort
and convenience while occupying leased premises.
This term frequently applies to items such as large
kitchen appliances. See tenant's fixture. Cf. ornamen
tal fixture. [Cases: Fixtures (;::::::> 17, 18.3.]
ornamental fixture. Removable personal property that
a tenant attaches to leased premises to make them
more attractive and comfortable . This term some
times overlaps with domestic fixture when an object
is decorative as well as functional. See tenant's fixture.
Cf. domestic fixture. [Cases: Fixtures 18.3.]
tenant's fixture. (1832) Removable personal property
that a tenant affixes to the leased property but that
the tenant can detach and take away. -Also termed
movable fixture. See domestic fixture; ornamental
fixture. [Cases: Fixtures (;::;:> 13.]
trade fixture. (1839) Removable personal property that
a tenant attaches to leased land for business purposes,
such as a display counter. Despite its name, a trade
fixture is not usu. treated as a fixture -that is, as
irremovable. (Cases: Fixtures (;::~) 15.]
fixture filing. (1972) The act or an instance of record
ing, in public real-estate records, a security interest in
personal property that is intended to become a fixture.
See UCC 9-102(a)(40) . The creditor files a financing
statement in the real-property records of the county
where a mortgage on the real estate would be filed.
A fixture-filing financing statement must contain a
deSCription of the real estate. (Cases: Secured Trans
actions (;::::::>85, 94.]
FJe. abbr. FEDERAL JUDICIAL CENTER.
FKA. abbr. Formerly known as. Also rendered FIKIA;
fka;f!kla.
flag, n. (14c) 1. A usu. rectangular piece ofcloth, bunting,
or other material decorated with a distinctive design
and used as a symbol or Signal. 2. Something symbol
ized by the display of a flag, such as a ship or national
ity. See DUTY OF THE FLAG; LAW OF THE FLAG.
jlag ofconvenience. Int'llaw. A national flag flown by
a ship not because the ship or its crew has an affilia
tion with the nation, but because the lax controls and
modest fees and taxes imposed by that nation have
attracted the owner to register it there. After World
War II, shipowners began registering their ships in
countries such as Panama, Liberia, and Honduras to
avoid expensive and restrictive national regulation of
lahor, safety, and other matters. Since the late 1950s,
there has been increasing international pressure to
require a "genuine link" between a ship and its flag
state, but this reform has been slow in coming.
Abbr. FOC. [Cases: Shipping
jlag oftruce. Int' flaw. A white flag used as a signal
when one belligerent wishes to communicate with the
other in the field . The bearers ofsuch a flag may not
be fired on, injured, or taken prisoner, as long as they
carry out their mission in good faith.
flag desecration. The act of mutilating, defacing,
burning, or flagrantly misusing a flag . Flag dese
cration is constitutionally protected as a form of free
speech. United States v. Eichman, 496 U.S. 310, 110 S.Ct.
2404 (1990). [Cases: United States (:::::>5.5.]
flag mast. See MAST (1).
jlagrans bellum (flay-granz bel-;3m). [Latin "raging war"]
A war currently being waged.
jlagrans crimen (flay-granz en-man). [Latin] A crime in
the very act of its commission or ofrecent occurrence;
a fresh crime.
jlagrante bello (fla-gran-tee bel-oh). [Latin] During an
actual state ofwar.
jlagrante delicto. See IN FLAGRANTE DELICTO.
flag state. Maritime law. The state under whose flag a
ship is registered . A ship may fly the flag ofone state
only. [Cases: Shipping ~2.J
flag-state control. Maritime law. The exercise ofauthor
ity by a state over vessels that fly under its flag to ensure
compliance with domestic and international safety and
environmental laws and regulations. Cf. COASTAL
STATE CONTROL; PORT-STATE CONTROL. [Cases:
Shipping~2.J
flash-of-genius rule. Patents. The now-defunct prin
ciple that a device is not patentable if it was invented
as the result of trial and error rather than as a "flash
of creative genius." 1he rule, which takes its name
from language in Cuno Engineering Corp. v. Automatic
Devices Corp., 314 U.S. 84, 91, 62 S.Ct. 37,41 (1941), was
legislatively overturned in 1952. 35 USCA 103. [Cases:
Patents ~17.J
flat, adv. 'Without an allowance or charge for accrued
interest <the stock was sold flat>.
flat, n. A house in a larger block; an apartment.
flat bond. See BOND (3).
flat cancellation. See CANCELLATION.
flat money. See fiat money under MONEY.
flat reinsurance. See REINSURANCE. flat sentence. See determinate sentence under
SENTENCE.
flat tax. See TAX.
flat time. See TIME.
fledwite (fled-WIt). Hist. 1. A discharge from an amerce
ment (a fine) for a fugitive who turns himselfor herself
in to the monarch. 2. The fine set on a fugitive as the
price for obtaining freedom. 3. The right to hold court
and take an amercement for the offenses ofbeating
and striking. -Also spelled jleduite. -Also termed
flighwite.
flee from justice. See FLIGHT.
fleet insurance. See INSURANCE.
Fleet marriage. See MARRIAGE (1).
Fleet Prison. Hist. A large London jail best known for
holding debtors and bankrupts in the 18th and 19th
centuries. Formerly standing beside the Fleet River, it
was opened in 1197 and operated almost continuously
until it was closed and demolished in 1846.
fleme (fleem). Hist. An outlaw; a fugitive bondman or
villein. Also spelled flem. Also termedflyma.
flemene frit (flee-m;3n frit). Hist. The harboring or
aiding ofa fleme (a fugitive). -Also termed and spelled
jlernenes frinthe; flemensfirth; flyman frynth; flyrnena
frynthe.
flemeswite (fleemz-wIt). Hist. The privilege to possess,
or the actual possession of, the goods and fines of a
fleme (a fugitive).
Fleta seu Commentarius Juris Anglicani (flee-t;:) syoo
kom-an-tair-ee-as joor-is ang-gl;3-kay-m). Hist. 1he
title ofan ancient treatise on English law, composed in
the 13th century and first printed in 1647. The work is
largely derivative, being based on Bracton's De Legibus
et Consuetudinibus. The unknown author may have
been a judge or lawyer who wrote the treatise while in
London's Fleet prison. Often shortened to Fleta.
FLETC. abbr. FEDERAL LAW ENFORCEMENT TRAINING
CENTER.
flexdollars. Money that an employer pays an employee,
who can apply it to a choice of employee benefits.
flexible constitution. See CONSTITUTION.
flexible-rate mortgage. 1. See adjustable-rate mortgage
under MORTGAGE. 2. See renegotiable-rate mortgage
under MORTGAGE.
flextime. (1972) A work schedule that employees have
discretion to alter as long as they work their required
number ofhours over a specified period (usu. a week).
flexweek. A four-day workweek, usu. consisting offour
lO-hour days.
flier policy. See INSURANCE POLICY.
flight. (bef. 12c) The act or an instance offleeing, esp.
to evade arrest or prosecution <the judge denied bail
because the defendant is a flight risk>. -Also termed
flight from prosecution; flee from justice.
715 FLRA
flight easement. See avigational easement under
EASEMENT.
flight from prosecution. See FLIGHT.
flighwite. See FLEDWITE.
flim flam. (16c) A scheme by which a person is tricked
out of money; CONFIDENCE GAME . The term origi
nated as the name of a machine at the heart of a mid
19th-century patent case, Sloat v. Spring, 22 F. Cas. 330
(C.C.E.D. Pa. 1850). -Also termed faith and trust.
flip, vb. Slang. 1. To buy and then immediately resell secu
rities or real estate in an attempt to turn a profit. 2. To
refinance consumer loans. 3. To turn state's evidence.
See TURN STATE'S EVIDENCE.
flip mortgage. See MORTGAGE.
flipping. Slang. l. lhe legitimate practice of buying
something, such as goods, real estate, or securities,
at a low price and qUickly reselling at a higher price.
2. The fraudulent practice ofbuying property at a low
price, preparing a false appraisal or other documenta
tion showing that property has a much greater value,
and quickly reselling the property for an inflated price
based on the false document.
float, n. (1915) 1. The sum ofmoney represented by out
standing or uncollected checks.
"'Float' refers to the artificial balance created due to
delays in processing cred its and debits to an account." In
re Cannon, 277 F.3d 838, 843 (6th Cir. 2002).
2. The delay between a transaction and the withdrawal
of funds to cover the transaction. 3. The amount ofa
corporation's shares that are available for trading on
the securities market.
float, vb. (1833) 1. (Of a currency) to attain a value in
the international exchange market solely on the basis
of supply and demand <the IMF allowed the peso to
float>. 2. To issue (a security) for sale on the market
<PDQ Corp. floated a new series ofpreferred shares>.
3. To arrange or negotiate (a loan) <the bank floated a
car loan to Alice despite her poor credit history>.
floatage. See FLOTSAM.
floater. See floating-rate note under NOTE (1).
floater insurance, See INSURANCE.
floating, adj. Not fixed or settled; fluctuating; variable.
floating capital. See CAPITAL.
floating charge. See floating lien under LIEN.
floating debt. See DEBT.
floating easement. See EASEMENT.
floating-interest bond. See BOND (3).
floating lien. See LIEN.
floating policy. See INSURANCE POLICY.
floating rate. See INTEREST RATE.
floating-rate note. See NOTE (1).
floating stock. See STOCK.
floating zone. See ZONE. floating zoning. See ZONING.
floodgate. (usu. pl.) (13c) A restraint that prevents a
release of a usu. undesirable result <the new law opened
the floodgates oflitigation>.
flood insurance. See INSL'RANCE.
floodplain. (19c) Land that is subject to floodwaters
because ofits level topography and proximity to a river
or arroyo; esp., levelland that, extending from a river
bank, is inundated when the flow of water exceeds the
channel's capacity.
floodwater. See WATER.
floor. (18c) 1. Parliamentary law. The part of the hall
where the members of a deliberative body meet to
debate issues and conduct business; esp., a legisla
ture's central meeting place where the members sit
and conduct business, as distinguished from the gal
leries, corridors, or lobbies <the Senate floor> <nom
inations from the floor>. See assignment ofthe floor
under ASSIGNMENT (6); CLAIM THE FLOOR; HAVE THE
FLOOR; OBTAIN THE FLOOR; ON THE FLOOR; privilege
ofthe floor under PRIVILEGE (6). [Cases: States <:::=32.]
2. The trading area where stocks and commodities are
bought and sold on an exchange <the broker placed his
buy order with the trader on the floor ofthe NYSE>. 3.
The lowest limit <the floor for that position is $25,000
per year>.
floor amendment. See AMENDMENT (3).
floor debate. See DEBATE.
floor-plan financing. See FINANCING.
floor planning. Seefloor-plan financing under FINANC
ING.
floor-plan rule. The principle by which a vehicle owner
who has placed for sale a vehicle in a retail dealer's
showroom is estopped to deny the title ofan innocent
purchaser from the dealer in the ordinary course of
ret |
showroom is estopped to deny the title ofan innocent
purchaser from the dealer in the ordinary course of
retail dealing. [Cases: Estoppel
floor price. See PRICE.
floor tax. See TAX.
flotage. See FLOTSAM.
flotation. See OFFERING.
flotation cost. See COST (1).
floterial district. See DISTRICT.
flotsam (flot-s;)m). (17c) Goods and debris, esp. those
from a shipwreck, that float on the surface of a body
of water. Also termedfloatage;flotage. Cf. JETSAM;
LAGAK (1); WAVESON.
flowage. (19c) The natural movement of water from a
dominant estate to a servient estate . It is a privilege
or easement of the owner ofthe upper estate and a ser
vitude of the lower estate. [Cases: Waters and Water
Courses G=:> 116-119, 161.]
flowage easement. See EASEMENT.
flower bond. See BOND (3).
FtRA. abbr. FEDERAL LABOR RELATIONS AUTHORITY.
FLSA 716
FLSA. abbr. FAIR LABOR STANDARDS ACT.
fluctuating clause. See ESCALATOR CLAUSE.
flyer policy. See flier policy under INSURANCE POLICY.
fly for it. Hist. To flee after allegedly committing a crime.
The ancient custom in criminal trials was to ask the
jury after its verdict even a not-guilty verdict -"Did
he fly for it?" The purpose was to enable the jury to find
whether the defendant had fled from justice. A defen
dant who had fled would forfeit personal property, even
though found not guilty on the underlying charge.
flyma. See HEME.
flyman frynth. See FLEMENE FRIT.
flymena frynthe. See FLEMENE FRIT.
fly-power assignment. See ASSIGNMENT (2).
flyspeck, n. Insurance. A potential trivial defect in title
to real property, as a result of which a title-insurance
company is likely to exclude any risk from that defect
before issuing a policy. flyspeck, vb.
FMC. abbr. FEDERAL MARITIME COMMISSION.
FMCS. abbr. FEDERAL MEDIATION AND CONCILIATION
SERVICE.
FMCSA. abbr. FEDERAL MOTOR CARRIER SAFETY ADMIN
ISTRATION.
FmHA. abbr. FARMERS' HOME ADMINISTRATION.
FMLA. abbr. 1. FAMILY AND MEDICAL LEAVE ACT. 2.
FEDERAL MARITIME LIEN ACT.
FMS. abbr. FINANCIAL MANAGEMENT SERVICE.
FMSF. abbr. FALSE MEMORY SYNDROME FOUNDATION.
FMSHRC. abbr. FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION.
FMV. See fair market value under VALUE (2).
FNMA. abbr. FEDERAL NATIONAL MORTGAGE ASSOCIA
TION.
FNS. abbr. FOOD, NUTRITION, AND CONSUMER SERVICE.
FOB. abbr. FREE ON BOARD.
FOB destination. See FREE ON BOARD.
FOB shipping. See FREE ON BOARD.
FOC. See flag ofconvenience under FLAG.
foedus (fee-das). [Latin "league"] Hist. Int'I law. A treaty;
league; compact.
foenus nauticum (fee-llds naw-ta-bm). [Latin] Civil
law. :t\autical or maritime interest; esp., an extraordi
nary rate ofinterest charged to underwrite a hazardous
voyage. -Also termed usura maritima.
foesting-men. See HABENTES HOMINES.
foeticide. See FETICIDE.
foetus. See FETl:S.
FOIA (foY-d). abbr. FREEDOM OF INFORMATION ACT.
foiable (foy-a-bal), adj. (1981) Slang. (Of documents)
subject to disclosure under the Freedom ofInforma
Hon Act (ForA). [Cases: Records C=>53.] folcland. See FOLKLAND.
foldage. See FALDAGE (1).
folio (foh-Iee-oh). [fro Latinfolium "leaf"] (15c) 1. Hist.
A leaf of a paper or parchment, numbered only on the
front. A folio includes both sides of the leaf, or two
pages, with the letters "a" and "b" (or "r" and "v," signi
fying recto and verso) added to show which of the two
pages was intended. 2. Rist. A certain number ofwords
in a legal document, used as a method ofmeasurement.
In England, 72 or 90 words formed a folio; in the
United States, 100 words. folio, vb.
"Folio ... [a] certain number of words; in conveyances, etc.,
and proceedings in the High Court amounting to seventy
two, and in parliamentary proceedings to ninety." Ivan
Horniman, Wharton's Law Lexicon 368 (13th ed. 1925)_
3. A page number on a printed book. 4. A large book the
pages of which are formed by folding a sheet of paper
only once in the binding to form two leaves, making
available four pages (both sides of each leaf).
folkland. Hist. Land held by customary law, without
written title. -Also spelled foleland. Cf. BOOKLAND;
LOANLAND.
"In all discussions on Anglo-Saxon law bookland is con
trasted with 'folkland: The most recent and probably
the most correct view is that folkland simply means land
subject to customary law, as opposed to land which was
held under the terms of a charter. It would seem that the
view that folkland means public land or land of the people,
though till recently generally accepted, must be abandoned
as resting on insufficient evidence. It appears that folkland
might either be land occupied by indiViduals or families
or communities, or it might be waste or unoccupied land.
The only characteristic which can be universally ascribed
to it is, that it is not bookland." Kenelm E. Digby, An Intro
duction to the History of the Law of Real Property 15 (5th
ed.1897).
folk Jaws. See LEGES BARBARORUM.
folkmote. See HALLMOTE (3).
follow, vb. (bef. 12c) To conform to or comply with;
to accept as authority <the lawyer assumed that the
Supreme Court would follow its own precedent>.
following-form policy. See INSURANCE POLICY.
follow-the-fortunes doctrine. Insurance. The principle
that a reinsurer must reimburse the reinsured for its
payment of settled claims as long as the reinsured's
payments were reasonable and in good faith . This rule
prevents a reinsurer from second-guessing a reinsured's
good-faith decision to pay a claim arguably not covered
under the original insurance policy. -Often shortened
to follow the fortunes. [Cases: Insurance 3615.]
follow-the-settlements doctrine. Insurance. The prin
ciple that an indemnitor must accede to the actions of
the indemnitee in adjusting and settling claims; esp.,
the principle that a reinsurer must follow the actions of
the reinsured. [Cases: Insurance C=>3615.]
fons juris. See SOURCE OF LAW.
Food and Drug Administration. A division of the U.S.
Public Health Service in the Department ofHealth and
Human Services responsible for ensuring that food is
safe, pure, and wholesome; that human and animal
717 force
drugs, biological products, and medical devices are
safe and effective; and that certain other products, such
as electronic products that emit radiation, are safe.
Created by the Pure Food and Drug Act of 1906, the
agency today enforces the Food, Drug, and Cosmetic
Act of 1938 and related statutes and regulations. 21
USCA 301 et seq. Abbr. FDA. [Cases: Food
1.7; Health ~302.]
food-disparagement law. See AGRICULTURAL-DISPAR
AGEMENT LAW.
Food, Drug, and Cosmetic Act. A 1938 federal law pro
hibiting the transportation in interstate commerce of
adulterated or misbranded food, drugs, or cosmetics.
-The Act superseded the Pure Food and Drug Act of
1906. Abbr. FDCA. [Cases: Food Health
302.]
Food, Nutrition, and Consumer Service. An agency
in the U.S. Department of Agriculture responsible
for reducing hunger by educating children and needy
people about healthy diets and by proViding them
access to food through the food-stamp and other
programs. -Abbr. FNS.
Food Safety and Inspection Service. An agency in the
U.S. Department ofAgriculture responsible for inspect
ing all types of meat, poultry, eggs, and related products
to ensure safety and accurate labeling. Abbr. FSIS.
[Cases: Food c>1.7.]
fool's test. The test formerly used by federal courts and by
the Federal Trade Commission to determine whether
an advertisement is deceptive, by asking whether even
a fool might believe it. -The name comes from Isaiah:
"wayfaring men, though fools, shall not err therein."
The test was announced in Charles ofthe Ritz Distrib.
Corp. v. Fed. Trade Comm'n, 143 F.2d 676 (2d Cir. 1944).
It was replaced by a "reasonable consumer" test by the
FTC in 1984. Cf. REASONABLE-CONSUMER TEST. [Cases:
Antitrust and Trade Regulation (;:::, 161.]
foot acre. See ACRE.
footage drilling contract. Oil & gas. A drilling contract
under which the drilling contractor is paid to drill to
a specified formation or depth, is paid a set amount
per foot drilled, and is given broad control over how
to do the work. -The risk of unexpected delays, as
well as most liabilities, is on the contractor rather
than the lease operator under this type of contract.
Cf. DAY WORK DRILLING CONTRACT; turnkey drilling
contract DRILLING CONTRACT.
foot-frontage rule. Tax. A method of property-tax
assessment used esp. to pay for improvements such
as sidewalks and sewers that considers only the lot's
actual frontage on the line of improvement and ignores
the depth of the lot and the number and character of
other improvements or their value.
footgeld (fuut-geld). Hist. In forest law, a fine imposed
for not making a dog incapable of hunting by either
cutting out the ball ofits paw or cutting off its claws. -
Ihe cutting was known as "expeditating" the dog. To be "free" or "quit" of footgeld was to be relieved of the
duty to expeditate one's dog.
foot of the fine. His!. At common law, the fifth and last
part of a fine of conveyance. -This part included the
entire matter, reciting the names ofthe parties and the
date, place, and before whom it was acknowledged or
levied. -Also termed chirograph. See FINE (1).
footprint. (16c) l. Evidence. The impression made on a
surface of soil, snow, etc., by a human foot or a shoe,
boot, or any other foot covering. [Cases: Criminal
Law ~475.6.1 2. Real estate. The shape of a build
ing's base.
for account of. (1826) A form of indorsement on a note
or draft introducing the name ofthe person entitled to
receive the proceeds.
Foraker Act (for-<'l-k<'Ir). The original (1900) federal law
i providing Puerto Rico with a civil government, but' keeping it outside the u.s. customs area. See 48 USCA
731-752.
foraneous (fCl-ray-nee-Cls), adj. [fr. Latin forum "market
place"] Of or relating to a court or marketplace.
foraneus (f<'l-ray-nee-Cls), n. [fro Latin joris "without"]
Hist. A foreigner; an alien; a stranger.
forathe (for-ayth). Hist. In forest law, one who can make
an oath or bear witness for another.
forbannitus (for-ban-<'l-t<"ls). [Law Latin] Hist. l.A pirate;
an outlaw. 2. One who was banished. -Also termed
forisbanitus.
forbarre (for-bahr), vb. [Law French] Hist. To preclude;
to bar out; to estop.
forbatudus (for-bd-t[y]oo-dds). [Law Latin] Hist. A
person who provokes and dies in - a fight.
forbearance, n. (16c) 1. The act of refraining from enforc
ing a right, obligation, or debt. -Strictly speaking,
forbearance denotes an intentional negative act, while
omission or neglect is an unintentional negative act. 2.
The act of tolerating or abstaining. forbear, vb.
forbidden degree. See prohibited degree under DEGREE.
forbidden departure. See DEPARTURE.
for cause. For a legal reason or ground. -The phrase
expresses a common standard governing the removal
of a civil servant or an employee under contract. for
cause, adj.
for-cause, n' See challenge for cause under CHALLENGE
(2).
force, n. (14c) Power, violence, or pressure directed
against a person or thing.
actual force. (16c) Force consisting in a physical act,
esp. a violent act directed against a robbery victim.
Also termed physical jorce. [Cases: Robbery (;:::)6.]
constructive force. (1802) Threats and intimidation to
gain control or prevent resistance; esp., threatening
words or gestures directed against a robbery victim.
[Cases: Robbery~6.1
718 force
deadly force. (16c |
.
[Cases: Robbery~6.1
718 force
deadly force. (16c) Violent action known to create a
substantial risk of causing death or serious bodily
harm. _Generally, a person may use deadly force in
self-defense or in defense of another only if retali
ating against another's deadly force. -Also termed
extreme force. Cf. nondeadly force.
"Under the common law the use of deadly force is never
permitted for the sole purpose ofstopping one fleeing from
arrest on a misdemeanor charge ...." Rollin M. Perkins &
Ronald N. Boyce, Criminal Law 1098 (3d ed. 1982).
excessive force. (16c) Unreasonable or unnecessary
force under the circumstances.
extremeforce. See deadly force.
independent force. Force not stimulated by a situation
created by the actor's conduct.
interveningforce. Force that actively produces harm
to another after the actor's negligent act or omission
has been committed.
irresistible force. (16c) Force that cannot be foreseen or
controlled, esp. that which prevents the performance
ofa contractual obligation; FORCE MAJEURE. [Cases:
Contracts (;=>309(1).]
legal force. See reasonable force.
nondeadly force. (1961) 1. Force that is neither intended
nor likely to cause death or serious bodily harm; force
intended to cause only minor bodily harm. 2. A threat
of deadly force, such as displaying a knife. Also
termed moderate force. Cf. deadly force.
physical force. See actual force.
reasonable force. (17c) Force that is not excessive and
that is appropriate for protecting oneself or one's
property. -The use of reasonable force will not
render a person criminally or tortiously liable. Also
termed legal force.
"One does not use jeweller's scales to measure reasonable
force." Reed v. Wastie, [1972] Crim. L.R. 221 (per Lane, J.)
(as quoted in Glanville Williams, Textbook ofCriminal Law
451 (1978)).
unlawful force. (16c) Force that is directed against a
person without that person's consent, and that is a
criminal offense or an actionable tort. Model Penal
Code 3.11. [Cases: Assault and Battery(;=> 1,47.]
force, vb. (14c) To compel by physical means or by legal
requirement <Barnes used a gun to force Jillian to use
her ATM card> <under the malpractice policy, the
insurance company was forced to defend the doctor>.
force and arms. Hist. Violence. _ The phrase was used
in common-law pleading in declarations of trespass
and in indictments to denote that the offending act was
committed violently. See VI ET ARMIS.
force and effect, n. (16c) Legal efficacy <mailing the brief
had the force and effect of filing it with the clerk>. _
1he term is now generally regarded as a redundant
legalism.
forced abortion. See ABORTION.
forced conversion. See CONVERSION (1). forced exile. See EXILE.
forced heir. See HEIR.
forced labor. lnt'llaw. Work exacted from a person
under threat of penalty; work for which a person has
not offered himself or herself voluntarily. _ Under the
U.N. Convention on Civil and Political Rights (article
8), exemptions from this definition include (1) penalties
imposed by a court, (2) compulsory military service,
(3) action taken in an emergency, (4) normal civil obli
gations, and (5) minor communal services. Also
termed compulsory labor.
forced pooling. See compulsory pooling under
POOLING.
forced portion. See LEGITIME.
forced resettlement.lnt'llaw. The involuntary transfer
of individuals or groups within the jurisdiction of a
country whether inside its own territory or into or out
ofoccupied territory.
forced respite. See RESPITE.
forced sale. See SALE.
forced share. See ELECTIVE SHARE.
forced unitization. See compulsory unitization under
UNITIZATION.
force majeure (fors ma-zhar). [Law French "a superior
force"] (1883) An event or effect that can be neither
anticipated nor controlled. _ The term includes both
acts of nature (e.g., floods and hurricanes) and acts of
people (e.g., riots, strikes, and wars). -Also termed
force majesture; vis major; superior force. Cf. ACT OF
GOD; VIS MAJOR (1).
force-ma;enre clause. (1916) A contractual provision
allocating the risk of loss if performance becomes
impossible or impracticable, esp. as a result of an event
or effect that the parties could not have anticipated or
controlled. [Cases: Contracts (;=>309(1).]
force-the-vote provision. Mergers & acquisitions. A con
tractual clause requiring a company's board of direc
tors to approve a merger transaction and submit it to
the shareholders, who then vote on the merger regard
less ofwhether the board recommends that the share
holders approve it when the vote is held.
forcible, adj. (15c) Effected by force or threat of force
against opposition or resistance.
"[In the law of trespass, the] term 'forcible' is used in a
wide and somewhat unnatural sense to include any act
of physical interference with the person or property of
another. To lay one's finger on another person without
lawful justification is as much a forcible injury in the eye
of the law, and therefore a trespass, as to beat him with
a stick. To walk peacefully across another man's land is a
forcible injury and a trespass, no less than to break into
his house vi et armis. So also it is probably a trespass
deliberately to put matter where natural forces will take it
on to the plaintiff's land." R.F.v. Heuston, Salmond on the
Law ofTorts 5 (17th ed. 1977).
forcible detainer. 1. The wrongful retention of posses
sion ofproperty by one originally in lawful possession,
719
often with threats or actual use ofviolence. 2. FORCIBLE
ENTRY AND DETAINER (2).
forcible entry. (17c) 1. The act or an instance ofviolently
and unlawfully taking possession of lands and tene
ments against the will of those in lawful possession.
2. The act of entering land in another's possession by
the use of force against another or by breaking into
the premises.
forcible entry and detainer. (17c) 1. The act of violently
taking and keeping possession oflands and tenements
without legal authority. [Cases: Forcible Entry and
Detainer C=:>4.]
"To walk across another's land, or to enter his building,
without privilege, is a trespass, but this in itself, while a
civil wrong, is not a crime. However, if an entry upon real
estate is accomplished by violence or intimidation, or if
such methods are employed for detention after a peaceable
entry, there is a crime according to English law, known
as forcible entry and detainer. This was a common-law
offense in England, although supplemented by English
statutes that are old enough to be common law in this
country.... It has sometimes been said that there are
two separate offenses (1) forcible entry and (2) forcible
detainer. This may be true under the peculiar wording of
some particular statute, but in general it seems to be one
offense which may be committed in two different ways."
Rollin M. Perkins & Ronald N. Boyce, Criminal Law487-88
(3d ed. 1982).
2. A quick and simple legal proceeding for regaining
possession of real property from someone who has
wrongfully taken, or refused to surrender, posses
sion. -Also termed forcible detainer. See EVICTION;
EJECTMENT. [Cases: Forcible Entry and Detainer C=:>6;
Landlord and Tenant C=:>287.]
"Forcible entry and detainer is a remedy given by statute
for the recovery of possession of land and of damages for
its detention. It is entirely regulated by statute, and the
statutes vary materially in the different states." Benjamin J.
Shipman, Handbook ofCommon-Law Pleading 74, at 188
(Henry Winthrop Ballantine ed., 3d ed. 1923).
foreclose, vb. (lSc) To terminate a mortgagor's interest in
property; to subject (property) to foreclosure proceed
ings. [Cases: Mortgages C-~J380.]
"Should the mortgagor default in his obligations under
the mortgage, the mortgagee will seek to 'foreclose',
I.e., 'end' or 'close' the mortgagor's rights in the security.
After taking the appropriate statutory steps, the mort
gagee will sell the mortgaged property. If the sale is to
someone other than the mortgagor or the mortgagee (a
'third party' sale) the proceeds will go: first, to pay the
costs of the foreclosure proceedings; second, to payoff
the principal indebtedness and accrued interest; third, if
there is anything left over (I.e., any 'equity' existed) this is
paid to the mortgagor." Edward H. Rabin, Fundamentals of
Modern Real Property Law 1087 (1974).
foreclosure (for-kloh-zhdr)_ (18c) A legal proceeding to
terminate a mortgagor's interest in property, instituted
by the lender (the mortgagee) either to gain title or to
force a sale in order to satisfy the unpaid debt secured
by the property. Cf. REPOSSESSION. [Cases: Mortgages
(::::: 380.]
equitable foreclosure. (1876) A foreclosure method
in which the court orders the property sold, and
the proceeds are applied first to pay the costs of the foreign
lawsuit and sale and then to the mortgage debt. -Any
surplus is paid to the mortgagor. [Cases: Mortgages
(:::::>386.)
judicial foreclosure. (1839) A costly and time-con
suming foreclosure method by which the mortgaged
property is sold through a court proceeding requir
ing many standard legal steps such as the filing of a
complaint, service ofprocess, notice, and a hearing.
Judicial foreclosure is available in all jurisdictions and
is the exclusive or most common method of foreclo
sure in at least 20 states. [Cases: Mortgages C=:>380.]
mortgage foreclosure. (1842) A foreclosure ofthe mort
gaged property upon the mortgagor's default. [Cases:
Mortgages C=:>380, 394.]
nonjudicial foreclosure. (1916) 1. See power-of-sale
foreclosure. 2. A foreclosure method that does not
require court involvement. [Cases: Mortgages
329.)
power-of-sale foreclosure, (1946) A foreclosure process
by which, according to the mortgage instrument and a
state statute, the mortgaged property is sold at a non
judicial public sale by a public official, the mortgagee,
or a trustee, without the stringent notice require
ments, procedural burdens, or delays of a judicial
foreclosure. _ Power-of-sale foreclosure is authorized
and used in more than half the states. Also termed
nonjudicial foreclosure; statutory foreclosure. [Cases:
Mortgages C=:>329.]
strict foreclosure. (1823) A rare procedure that the
mortgagee title to the mortgaged property -without
first conducting a sale -after a defaulting mortgagor
fails to pay the mortgage debt within a court-speci
fied period. _ The use of strict foreclosure is limited
to special situations except in those few states that
permit this remedy generally. [Cases: Mortgages C=:>
384.]
tax foreclosure. (1869) A public authority's seizure
and sale ofproperty for nonpayment oftaxes. [Cases:
Taxation (:::::2922.]
foreclosure decree. (1847) 1. Generally, a decree ordering
a judicial foreclosure sale. 2. A decree ordering the
strict foreclosure of a mortgage. [Cases: Mortgages
483_]
foreclosure sale. See SALE_
foregift. Rist. A premium paid for a lease in addition to
rent; forehand rent. See FOREHAND RENT (1).
foregoer (for-goh-dr). (lSc) Hist. A royal purveyor;
a person who buys provisions for the Crown at an
appraised (that is, reduced) price while the royal house
hold travels about the country.
forehand rent. Hist. 1. A premium paid by the tenant on
the making of a lease, esp. on the renewal of a lease by
an ecclesiastical corporation. 2. Generally, rent payable
before a lease begins.
foreign, adj. (13c) 1. Of or relating to another country
<foreign affairs>. 2. Ofor relating to another jurisdic
tion <the Arizona court gave full faith and credit to the
foreign judgment from Mississippi>. -foreigner, n.
foreign administration. See ancillary administration
under ADMINISTRATION.
foreign administrator. See ADMINISTRATOR (2).
foreign agent. See AGENT (2).
Foreign Agricultural Service. An agency in the U.S.
Department of Agriculture responsible for maintain
ing a worldwide agricultural intelligence and reporting
system. -Abbr. FAS.
foreign apposer. See APPOSER.
foreign assignment. See ASSIGNMENT (2).
foreign bill. See BILL (6).
foreign bill of exchange. See foreign draft under
DRAFT.
foreign bond. See BOND (3).
foreign consulate. See CONSULATE.
foreign corporation. See CORPORATION.
Foreign Corrupt Practices Act. A 1977 federal statute
that prohibits United States citizens from offering or
paying bribes to foreign officials in order to obtain or
maintain a commercial interest, and requires compa
|
from offering or
paying bribes to foreign officials in order to obtain or
maintain a commercial interest, and requires compa
nies whose securities are listed in the United States to
comply with certain accounting practices. 15 USCA
78dd-l, et. seq. [Cases: BriberyC:::> 1(1).]
foreign county. See COUNTY.
foreign court. See COURT.
foreign creditor. See CREDITOR.
foreign divorce. See DIVORCE.
foreign document. See DOCUMENT.
foreign domicile. See DOMICILE.
foreign dominion. Hist. A country that at one time was
a foreign state but that by conquest or cession has come
under the British Crown.
foreign draft. See DRAFT.
foreign-earned-income exclusion. (1964) The Internal
Revenue Code provision that excludes from taxation
a limited amount of income earned by nonresident
taxpayers outside the United States. -The taxpayer
must elect between this exclusion and the foreign tax
credit. IRC (26 USCA) 91l(a), (b). See foreign tax
credit under TAX CREDIT. [Cases: Internal Revenue
C:::>4095-4122.J
Foreign Emoluments Clause. The clause of the U.S.
Constitution prohibiting titles of nobility and the
acceptance of a gift, title, or other benefit from a foreign
power. U.S. Const. art. I, 9, cl. 8. -Sometimes short
ened to Emoluments Clause.
foreigner. (ISc) 1. Hist. A person not an inhabitant ofa
particular city under discussion. 2. A citizen of another
country.
foreign exchange. (17c) 1. The process of making inter
national monetary transactions; esp., the conversion of one currency to that of a different country. 2. Foreign
currency or negotiable instruments payable in foreign
currency, such as traveler's checks.
foreign-exchange market. See MARKET.
foreign-exchange rate. The rate at which the currency of
one country is exchanged for the currency of another
country.
foreign guardian. See GUARDIAN.
foreign immunity. See IMMUNITY (1).
Foreign Intelligence Surveillance Act. A 1978 federal
statute that established new procedures and courts to
authorize electronic surveillance of foreign intelligence
operations in the United States . 1be Act established
the Foreign Intelligence Surveillance Court and the
Foreign Intelligence Court of Review. It allows the
Attorney General to obtain warrants that authorize
electronic surveillance of suspected foreign-intelli
gence operatives without public disclosure and without
a showing of probable cause that criminal activity is
involved. Abbr. FISA. [Cases: War and National
Emergency
Foreign Intelligence Surveillance Court. See U~ITED
STATES FOREIGN INTELLIGENCE SURVEILLANCE COURT.
Foreign Intelligence Surveillance Court ofReview. See
UNITED STATES FOREIGN INTELLIGENCE SURVEILLANCE
COURT OF REVIEW.
foreign judgment. See JUDGMENT.
foreign jurisdiction. See Il:RISDICTION.
foreign jury. See JURY.
foreign law. 1. Generally, the law ofanother country. 2.
Conflict oflaws. The law ofanother state or ofa foreign
country.
foreign minister. See MINISTER.
foreign object. (l7c) An item that appears where it does
not belong; esp., an item introduced into a living body,
such as a sponge that is left in a patient's body during
surgery. _ Ihe discovery rule usu. tolls the statute of
limitations for a medical-malpractice claim based on
a foreign object. Also termed foreign substance. See
FOREIGN SUBSTANCE. [Cases: Health C=;666; Limita
tion ofActions C-~9S(l3).]
foreign port. See PORT.
foreign-relations law. See INTERNATIONAL LAW.
foreign service. (19c) 1. UNITED STATES FOREIGN
SERVICE. 2. FORINSEC SERVICE. 3. Rist. A feudal service
performed by a tenant outside of the fee.
Foreign Service Institute. A unit in the US. Department
of State responsible for training officers and employ
ees ofthe Foreign Service as well as personnel in other
agencies. Abbr. FSI.
foreign situs trust. See TRUST.
Foreign Sovereign Immunities Act. A federal statute
providing individuals with a right of action against
foreign governments, under certain circumstances, to
the extent the claim arises from the private, as opposed
721
to the public, acts of the foreign state. 28 USCA
1602-161l. Abbr. FSIA. See RESTRICTIVE PRI~CIPLE
OF SOVEREIGN IMMU~ITY. [Cases: International Law
10.31-10.39.]
"The Foreign Sovereign Immunities Act (FSIA) of 1976 was
designed to provide a set of comprehensive regulations
governing access to federal and state courts in this country
for plaintiffs asserting claims against foreign states and
instrumentalities thereof. The enactment of this legislation
responded to the reality that increased contacts between
American citizens and companies on the one hand, and
foreign states and entities owned by foreign states on the
other, as well as a constantly expanding range of govern
ment activities, had created the need for judicial fora in
this country to resolve disputes arisi ng out of these activi
ties." 14A Charles Alan Wright et aI., Federal Practice and
Procedure 3662, at 160-61 (2d ed. 1998).
foreign state. 1. A foreign country. 2. An American state
different from the one under discussion.
foreign substance. (17c) A substance found in a body,
organism, or thing where it is not supposed to be found
<the plaintiff sued because she thought she saw -and
later confirmed that she had found - a foreign sub
stance (namely, a piece of glass) in her hamburger>.
foreign support order. See SUPPORT ORDER.
foreign tax credit. See TAX CREDIT.
foreign trade zone. See FREE-TRADE ZONE.
foreign trust. Seeforeign-situs trust under TRUST.
foreign vessel. See VESSEL.
foreign voyage. See VOYAGE.
foreign water. See WATER.
forejudge, vb. 1. To prejudge; to judge beforehand. 2.
Loosely, FORJUDGE.
foreman. (15c) 1. See presidingjuror under JUROR. 2. A
person who directs the work ofemployees; an overseer,
crew chief, or superintendent. foremanship, n.
forematron. Hist. The presiding juror in an all-woman
jury.
forensic (fCl-ren-sik also -zik), ad). [fro Latin forensis
"public," fro Latinforum "court"] (17c) 1. Used in or
suitable to courts of law or public debate <forensic
psychiatry>. 2. Rhetorical; argumentative <Tietjen's
considerable forensic skills>. 3. Hist. Exterior; foreign.
See FORENSIS.
forensic engineering. (1976) 'The use of engineering
principles or analysis in a lawsuit, usu. through an
expert witness's testimony.
forensic evidence. See EVIDENCE.
forensic linguistics. (1973) The science or technique
that evaluates the linguistic characteristics of written
or oral communications, usu. to determine identity or
authorship.
forensic medicine. (1845) The branch of medicine that
establishes or interprets evidence using scientific
or technical facts, such as ballistics. -Also termed
medical jUrisprudence. forestalling the market
forensic pathology. (1959) The specific branch of
medicine that establishes or interprets evidence deating
with diseases and disorders ofthe body, esp. those that
cause death.
forensics (fCl-ren-siks also -ziks). (1963) 1. The art of
argumentative discourse. 2. The branch oflaw enforce
ment dealing with legal evidence relating to firearms
and ballistics.
forensic services. Hist. In feudal law, the payment of
extraordinary aids or the rendition of extraordinary
military services.
forensis (f~-ren-sis), ad). [fro Latin forum "court"] Roman
law. Of or relating to a court oflaw . An advocate, for
example, was sometimes known as a homo forensis. See
FORENSIC.
foreperson. See presidingjuror under JUROR.
foreseeability, n. (1928) The quality of being reasonably
anticipatable . Foreseeability, along with actual cau
sation, is an element ofproximate cause in tort law.
foreseeable, ad).
foreseeable damages. See DAMAGES.
forest, n. (13c) Hist. A tract of land, not necessarily
wooded, reserved to the king or a grantee, for hunting
deer and other game.
forestall (for-stawl), vb. (bef. 12c) 1. To prevent (an event,
result, etc.). 2. His/. To intercept or obstruct (as a person
on a royal highway). 3. Hist. To prevent (a tenant) from
coming on the premises. 4. Hist. To intercept (as a deer
reentering a forest). 5. Hist. To buy (goods) for the
purpose of reselling at a higher price. -At common
law, this was an indictable offense. See FORESTALLING
THE MARKET. -Also spelled forstall.
"[AJ growing town in England might have placed a higher
\lalue on grain than a neighboring town with a static popula
tion, yet traditional patterns of business might continue to
send the same amount of grain to both towns. A forestaller
would bid against the traditional buyer in the smaller town,
obtain the grain, and resell it where it could command a
higher price in the larger town. Forestalling did not harm
allocative efficiency. Indeed, it was a highly effective means
of reallocating scarce goods to their most highly valued
uses --the \lery definition of efficiency. Rather, forestalling
was objectionable, and thus prohibited as a restraint of
trade, because the bidding process necessarily resulted in
higher grain prices in many parts of the country." Stephen
F. Ross, Principles ofAntitrust Law 12 (1993).
forestaller, n. 1. A person who forestalls. 2. Hist. One
guilty of the offense of forestalling. See FORESTALL
(5).
forestalling the market. Hist. 1. The taking possession
of commodities on their way to the market. 2. The
purchase of goods on their way to the market, with
the intention ofreselling them at a higher price. 3. The
deterrence of having sellers offer their goods at market
at a reasonable price; specif., the crime of inhibiting
normal trading by persuading sellers to raise their
prices on goods or dissuading them from offering
the goods in a particular market, or by purchasing as
much as possible of certain goods before they reach the
market to drive up prices.
forest law. Rist. The body oflaw protecting game and
preserving timber.
forestry right. A land interest under which a person has
the right to enter the land, establish and maintain a
crop of trees, harvest them, and construct works for
that purpose. [Cases: Logs and Logging Cr~L]
Forest Service. An agency in the U.S. Department of
Agriculture responsible for managing the nation's
national forests . The Forest Service also operates the
Youth Conservation Corps and the Volunteers in the
~ational Forest programs. [Cases: Woods and Forests
8.]
forfeiture (for-fi-ch;lr), n. (14c) 1. The divestiture of
property without compensation. 2. The loss ofa right,
privilege, or property because ofa crime, breach ofobli
gation, or neglect of duty. Title is instantaneously
transferred to another, such as the government, a cor
poration, or a private person. [Cases: Controlled Sub
stances C=:o 162; Forteitures C=:o 1.] 3. Something (esp.
money or property) lost or confiscated by this process;
a penalty. -forfeit, vb. -forfeitable, adj.
civil forfeiture. (1867) An in rem proceeding brought
by the government against property that either facili
tated a crime or was acquired as a result of criminal
activity. [Cases: Controlled Substances (:::;) 162; For
feitures C=:o L]
criminal forfeiture. (1866) A governmental proceeding
brought against a person to seize property as punish
ment for the person's criminal behavior. [Cases: Con
trolled Substances Forfeitures Cr~,L]
forfeiture ofmarriage. Hist. A penalty exacted by a lord
from a ward who married without the lord's consent.
The penalty was a money payment double the value
that the marriage would otherwise have been worth
to the lord.
forfeiture ofpay. Military law. A punishment depriv
ing the guilty party ofall or part ofhis or her military
pay.
4. A destruction or deprivation ofsome estate or right
because of the failure to perform some contractual obli
gation or condition.
"[When a condition] is not likely to occur until the obligee
has relied on the expected exchange by, for example, per
forming or preparing to perform, ... nonoccurrence of the
condition results in the obligee's loss of its reliance interest
when the obligee loses the right to that exchange. This loss
of reliance interest is often described as 'forfeiture.'" E.
Allan Farnsworth, Contracts 8.4, at 533 (3d ed. 1999).
forfeiture clause. (1804) 1. A contractual provision
stating that, under certain circumstances, one party
must forfeit something to the other . Forfeiture clauses
are often held to be void, although they are similar to
conditions and other qualifications of estates in land.
2. NO-CONTEST CLAUSE.
forfeiture restraint. An attempt by an otherwise effec
tive conveyance or contract to cause a later conveyance
to terminate or to make some or all ofthe later conveyance subject to termination |
tive conveyance or contract to cause a later conveyance
to terminate or to make some or all ofthe later conveyance subject to termination. Sometimes shortened to
restraint. [Cases: Deeds Property C=:o n.]
forgavel (for-gav-dl). Hist. A small reserved rent in
money; quit-rent.
forgery, n. (16c) 1. lhe act offraudulently making a false
document or altering a real one to be used as ifgenuine
<the contract was void because ofthe seller's forgery>.
Though forgery was a misdemeanor at common law,
modern statutes typically make it a felony. Also
termed false making. [Cases: Forgery C=:o 1.] 2. A false
or altered document made to look genuine by someone
with the intent to deceive <he was not the true property
owner because the deed was a forgery>. Also termed
fake. 3. Under the Model Penal Code, the act offraudu
lently altering, authenticating, issuing, or transferring
a writing without appropriate authorization . Under
the explicit terms ofthe Code, writing can include items
such as coins and credit cards. Model Penal Code
224.1(1). -forge, vb. forger, n.
"While it is true that there is a distinction between fraud
and forgery, and forgery contains some elements that are
not included in fraud, forgeries are a species of fraud. In
essence, the crime of forgery involves the making, altering,
or completing of an instrument by someone other than the
ostensible maker or drawer or an agent of the ostensible
maker or drawer." 37 c.J.S. Forgery 2, at 66 (1997).
double forgery. A draft haVing a forged payor signature
and a forged indorsement.
fori disputationes (for-I dis-pyoo-tay-shee-oh-neez).
[Latin "arguments of the court"] Roman law. Argu
ments or discussions before a court.
forinsec service (f;l-rin-sik). (lSc) Hist. The feudal
services owed by a mesne (I.e., intermediate) lord,
esp. those of a military nature. -Also termed foreign
service;forinsecum servitium. Cf. INTRINSEC SERVICE .
"The terminology of Bracton's day and of yet earlier times
neatly expresses the distinction between the service which
the tenant owes to his immediate lord by reason of the
bargain which exists between them, and the service which
was incumbent on the tenement whilst it was in the lord's
hand. The former is intrinsec service, the latter forinsec
service; the former is the service which is created by, which
(as it were) arises within, the bargain between the two
persons, A and B, whose rights and duties we are discuss
ing; the latter arises outside that bargain, is 'foreign' to
that bargain .... [T]he term is a relative one; what is
'intrinsec' between A and B is 'forinsec' as regards c." 1
Frederick Pollock & Frederic W. Maitland, The History of
English Law Before the Time of Edward I 238, 239 n.2 (2d
ed. 1898).
forinsecus (f;l-rin-s;l-k;ls), adv. [fro Latinforis "without"]
Hist. On the outside.
forinsecus (f;l-rin-s;l-kds), n. [Latin] Hist. A foreigner;
someone from another jurisdiction.
foris (for-is), adj. [Latin] Abroad; outdoors; without.
forisbanitus (for-is-ban-a-tas). See FORBANNITUS.
forisbannire (for-is-b;l-nl-ree), vb. [Law Latin "to
banish"] Hist. To expel from a certain territory; to
banish.
forisfacere (for-is-fay-sa-ree), vb. [fro Latinforis "without"
+facere "to make"] Hist. 1. To forfeit (an estate or other
723
property). Literally, this means to make the property
foreign to oneself. 2. To violate the law; to do a thing
against or without the law.
forisfactum (for-is-fak-tJm), adj. [Law Latin] Hist. (Of
property) forfeited.
forisfactus (for-is-fak-tJs). [Law Latin] Hist. A criminal;
esp., one who has forfeited his or her life by committing
a capital offense.
forisfactus servus (for-is-fak-t<:>s sar-vJs). [Law Latin]
Hist. A freed slave who has forfeited his or her freedom
by committing a crime.
forisfamiliate (for-is-fJ-mil-ee-ayt), vb. Latin foris
"outside" +familia "family"] (16c) Hist. To emancipate
(a son) from paternal authority by a gift ofland. This
act usu. rendered the son ineligible to inherit more
property. Also termed (archaically) forisfamiliare.
forisfamiliated (for-is-fJ-mil-ee-ay-tid), adj. Hist. (Of a
son) emancipated from paternal authority and in pos
session of a portion of family land in lieu of inheri
tance.
"If our English law at any time knew an enduring patria
potestas which could be likened to the Roman, that time
had passed away long before the days of Bracton,
Bracton, it is true. has copied about this matter some
sentences from the Institutes which he ought not to have
copied; but he soon forgets them, and we easily see that
they belong to an alien system. Our law knows no such
thing as 'emancipation,' it merely knows an attainment of
full age .... In old times a forisfamiliated son, that is, one
whom his father had enfeoffed, was excluded from the
inheritance. This is already antiquated, yet Bracton can
find nothing else to serve instead of an emancipatio." 2
Frederick Pollock & Frederic W. Maitland, The History of
English Law Before the Time ofEdward /438, 438 n.3 (2d
ed.1899),
forisfamiliation. (17c) Scots law. The liberation ofa child
from the father's tutelage, as when a child under the
age of majority left home, was given seisin in a part of
the father's land, or accepted something as a settled
inheritance. Cf. EMANCIPATION (2).
forisjudicatio. See FORJUDGER.
forisjudicatus. See FORJUDGER.
forisjurare (for-is-jJ-rair-ee), vb. [Law Latin] Hist. To
forswear; to renounce under oath. Also termed
forjurer.
forisjurare parentilam (for-is-jJ-rair-ee pJ-ren-td-lJm),
vb. [Law Latin] Hist, To renounce parental authority .
One who did so lost all rights of heirship.
forisjurare provinciam (for-is-jJ-rair-ee prd-vin
shee-Jm), vb. [Law Latin] Hist. To renounce under oath
allegiance to one's country.
forjudge, vb. (15c) 1. Hist. To expel a person, esp. an
officer or attorney, from court for some offense or
misconduct. 2. To deprive (a person) of a thing by a
judgment; to condemn (a person) to lose a thing.
Also spelled (loosely) forejudge.
forjudger (for-;;);-Jr), n. (ISc) Hist. 1. A judgment that
deprives a person of a thing. 2. A judgment ofexpulformality
sion or banishment. -Also termed forisjudicatio;
forisjudicatus.
forjurer. See FORISJURARE.
forjurer royalme (for-zh<:>-ray roy-ohm), vb. [Law French]
Hist. To renounce the kingdom under oath; to abjure
the realm.
form, n. (Be) 1. lhe outer shape or structure of some
thing, as distinguished from its substance or matter
<courts are generally less concerned about defects
in form than defects in substance>. 2. Established
behavior or procedure, usu. according to custom or
rule <the prosecutor followed the established form
in her closing argument>. 3. A model; a sample; an
example <attorneys often draft pleadings by using a
form instead of starting from scratch>. 4. The custom
ary method of drafting legal documents, usu. with
fixed words, phrases, and sentences <Jones prepared
the contract merely by following the state bar's form>.
5. A legal document with blank spaces to be filled in
by the drafter <the divorce lawyer used printed forms
that a secretary could fill in>.
Form 8-K. See 8-K.
Form IO-K. See lO-K.
Form IO-Q. See 1O-Q.
forma (for-m;t).lLatin "form"] Hist. The prescribed form
ofjudicial proceedings.
forma et figura judicii (for-mJ et fig-pr-J joo-dish-ee
I). [Latin] Hist. The form and shape of judgment. A
form prescribed by statute.
formal, adj. (14c) 1. Pertaining to or follOWing estab
lished procedural rules, customs, and practices. 2. Cer
emonial. formality, n.
formal abandonment. See express abandonment under
ABANDO~MENT (10).
formal acknowledgment. See ACKNOWLEDGMENT.
formal agreement. See AGREEMENT.
formal contract. See CONTR ACT.
formal drawing. See DRAWING.
formal fallacy. See FALLACY.
formal impeachment. 1. See IMPEACHMENT (1). 2. See
IMPEACHMENT (2).
formality. (l6c) 1. A small point ofpractice that, though
seemingly unimportant, must usu. be observed to
achieve a particular legal result. 2. Hist. (pl.) Robes
worn by magistrates on solemn occasions. 3. Copy
right. (usu. pl.) A procedural requirement formerly
required before receiving U.S. copyright protection.
Formalities included (1) a copyright notice appear
ing on the work. (2) actual publication, (3) registration
with the Copyright Office, and (4) deposit ofthe work
with the Library of Congress. The formality reqUire
ments eroded during the 20th century. Today, none are
reqUired, although registration remains a prerequisite
for an infringement suit by U.S. authors in the United
formal law 724
States. [Cases: Copyrights and Intellectual Property
~50.16.]
formal law. (17c) Procedural law.
"Procedure is by many German writers inappropriately
called 'formal law.'" Thomas E. Holland, The Elements of
Jurisprudence 358 n.2 (13th ed. 1924).
formal party. See nominal party under PARTY (2).
formal rejection. See REJECTION.
formal rulemaking. See RULEMAKING.
forma pauperis. See IN FORMA PAUPERIS.
formata (for-may-tG). [Law Latin] Eccles. law. Canoni
cal letters.
formata brevia. See BREVIA FORMATA.
forma verborum (for-mG vGr-bor-Gm). [Latin] Hist. The
form of the words.
formbook. A book that contains sample legal docu
ments, esp. transaction-related documents such as
contracts, deeds, leases, wills, trusts, and securities
disclosure documents.
formed design. See DESIGN.
formedon (for-mG-don). [fro Latin forma doni "form of
the gift") (lSc) Hist. A writ ofright for claiming entailed
property held by another. A writ of formedon was
the highest remedy available to a tenant in tail. Also
termed writ offormedon. [Cases: Real Actions
"Called formedon, because the writ comprehended the
form of the gift. It was of three kinds, in the descender, in
the re.mainde.r, and in the reverter." 1 Alexander M. Burrill,
A Law Dictionary and Glossary 650 (2d ed. 1867).
formedon in the descender. A writ offormedon brought
by the issue in tail to recover possession of the land.
formedon in the remainder. A writ of formedon
brought by a remainderman under a grant or gift in
tail to recover possession of the land.
formedon in the reverter. A writ of formedon brought
by a reversioner or donor of the grant or gift in tail to
recover possession of the land.
former acquittal. See autrefois acquit under AUTRE
FOIS.
former adjudication. (ISc) A judgment in a prior action
that resulted in a final determination of the rights of
the parties or essential fact questions and serves to bar
relitigation ofthe issues relevant to that determination.
Collateral estoppel and res judicata are the two types
offormer adjudication. See COLLATERAL ESTOPPEL; RES
JUDICATA. [Cases: Judgment ~540, 634.]
former jeopardy. (1870) The fact of having previously
been prosecuted for the same offense . A defendant
enters a plea of former jeopardy to inform the court
that a second prosecution is improper. Cf. DOUBLE
JEOPARDY. [Cases: Double Jeopardy C=-'132.1.1
former punishment. Military law. The rule that nonju
dicial punishment for a minor offense may bar trial by
court-martial for the same offense. form of action. The common-law legal and proce
dural device associated with a particular writ, each
ofwhich had specific forms of process, pleading, trial,
and judgment. The 11 common-law forms of action
were trespass, trespass on the case, trover, ejectment,
detinue, replevin, debt, covenant, account, special
assumpsit, and general assumpsit. [Cases: Action
29; Federal Civil Procedure (:::::::0 71.]
"Forms of action are usually regarded as different methods
of procedure adapted to cases of different kinds, but in
fact |
71.]
"Forms of action are usually regarded as different methods
of procedure adapted to cases of different kinds, but in
fact the choice between forms of action is primarily a
chOice between different theories of substantive liability,
and the scope of the actions measures the existence and
extent of liability at common law .... The development and
extension of the different forms of action is the history of
the recognition of rights and liability in the law of torts,
contracts, and property, and the essentials of rights of
action." Benjamin j. Shipman, Handbook of Common-Law
Pleading 27, 30 at 54, 60 (Henry Winthrop Ballantine
ed., 3d ed. 1923).
Form S-1. See $-1.
formula. [Latin "set form of words"] (17c) 1. Roman
law. A written document, prepared by a praetor and
forwarded to a judex, identifying the issue to be tried
and the judgment to be given by the judex. _ It was
based on model pleas formulated by the praetor in his
edict and adapted by him or other magistrates in civil
suits for the benefit of the judex who had to try the
issue. 'These pleas were adapted to the circumstances
of the case. The usual parts of a formula were (1) the
demonstratio, in which the plaintiff stated the facts of
the claim; (2) the intentio, in which the plaintiff speci
fied the relief sought against the defendant; and (3) the
condemnatio, in which the judex condemned (usu. to
pay the plaintiff a sum) or acquitted the defendant. PI.
formulae (for-mYd-lee). -Also termed verba concepta
(var-bJ kGn-Sep-td).
"The Roman judges were not, as with us, the presiding
officers in the administration of law and justice. This was
the position of the magistrate, the praetor. When a suit
at law was commenced, the parties appeared before the
praetor, who made a preliminary examination, not to ascer
tain the merits of the case, but to find the precise points
in controversy. He heard the statements of the plaintiff
and the counter-statements of the defendant, and from
the two he constructed a formula (as it was called), a
brief technical expression ofthe disputed issues. He then
appointed a judex ... instructing him to investigate the
matter, and if he found the facts to be so and so, as recited
in the formula, then to condemn the accused party, but,
if he did not find them so, to acqUit him." James Hadley,
Introduction to Roman Law 59-60 (1881). [This quotation
describes only the period of formulary procedure, ca. 150
B.C.-A.D. 300. Ed.]
2. Common-law pleading. A set form of words (such
as those appearing in writs) used in judicial proceed
ings.
formula deal. An agreement between a movie distribu
tor and an independent or affiliated circuit to exhibit a
feature movie in all theaters at a specified percentage of
the national gross receipts realized by the theaters.
formulae (for-mYG-lee). [Latin "set forms of words"]
Roman law. Model pleas formulated by the praetor in
his edict and adapted by him or other magistrates in
725
civil suits for the benefit ofthe judex who had to try the
issue. These pleas were adapted to the circumstances
ofthe case. Also termed verba concepta (var-b;:l k;:ln
sep-t;:!).
formula instruction. See JURY INSTRUCTION.
formulary. (16c) 1. Rist. A collection of the forms of
proceedings (formulae) used in litigation, such as the
writ forms kept by the Chancery. See WRIT SYSTEM. 2.
A list ofdrugs that Medicare or a health-maintenance
organization will pay for.
formulary procedure. Rist. The common-law method
of pleading and practice, which required formulaic
compliance with the accepted forms of action even
if through elaborate fictions . In the 19th century,
this type of procedure was replaced both in the
United States and in England. See code pleading under
PLEADING (2).
fornication, n. (14c) 1. Voluntary sexual intercourse
between two unmarried persons . Fornication is still
a crime in some states, such as Virginia. 2. Rist. Vol
untary sexual intercourse with an unmarried woman.
At common law, the status ofthe woman determined
whether the offense was adultery or fornication
adultery was sexual intercourse between a man, Single
or married, and a married woman not his wife;fornica
tion was sexual intercourse between a man, Single or
married, and a single woman. Cf. ADULTERY. [Cases:
Criminal Law C-~45.40; Lewdness ~1.] fornicate,
vb. -fornicator, n.
"Fornication was not a common-law crime but was made
punishable by statute in a few states as a misdemeanor."
Rollin M. Perkins & Ronald N. Boyce, Criminal Law455 (3d
ed. 1982).
fornix (for-niks). [Latin] Rist. 1. A brotheL 2. Fornica
tion.
forprise (for-pnz). Rist. 1. An exception or reservation.
The term was frequently used in leases and convey
ances.
"Forprise ... [aJn exception or reservation .... We still
use it in Conveyances and leases, wherein Excepted and
Forprised is an usual expression." Thomas Blount, Nama
Lexicon: A LawDictionary(l670).
2. An exaction. -forprise, vb.
for-profit corporation. See CORPORATION.
forschel (for-shClI). Rist. A strip of land next to a
highway. -Also termedforschet.
forspeca (for-spee-k;:l). 1. PROLOCUTOR (2). 2. PARANYM
PHUS.
forstall. See FORESTALL.
forswearing (for-swair-ing), n. (14c) 1. The act of repu
diating or renouncing under oath. 2. PERJURY.
forswear, vb.
fortax (for-taks), vb. Rist. To tax wrongly or extortion
ately.
forthcoming, n. (l7c) Scots law. 1. An action through
which arrestment is made available to an arrester. 2. An
order that perfects an arrestment by directing a debtor forum contentiosum
either to pay the money owed or to deliver the arrested
goods to the creditor.
forthcoming bond. See BOND (2).
forthwith, adv. (14c) 1. Immediately; without delay. 2.
Directly; promptly; within a reasonable time under the
circumstances.
fortia (for-sh;. [Law Latin] Hist. 1. Force. Fortia refers
to force used by an accessory to allow the principal
to commit the crime. 2. Power, dominion, or jurisdic
tion.
fortia frisca (for-sh;> fris-k;:!). [Law Latin] Rist. See FRESH
FORCE.
fortior (for-shee-;:!r or -or), adj. [Latin "stronger"] Rist.
(Of evidence) involving a presumption that, because of
the strength ofa party's eVidence, shifts the burden of
proof to the opposing party.
fortuitous (for-t[y]00-;>-t;:l5), adj. (17c) Occurring by
chance. A fortuitous event may be highly unfortu
nate. Literally, the term is neutral, despite its common
misuse as a synonym for fortunate .
fortuitous collision. See COLLISION.
fortuitous event. (1856) 1. A happening that, because it
occurs only by chance or accident, the parties could not
reasonably have foreseen. 2. An event that, so far as con
tracting parties are aware, depends on chance. 3. Loui
siana law. An event that could not have been reasonably
foreseen at the time a contract was made. La. Civ.
Code art. 1875. -Also termed cas fortuit. See FORCE
MAJEURE; UNAVOIDABLE-ACCIDENT DOCTRINE.
Fortune 500. An annual compilation of the 500 largest
U.S. corporations as ranked by gross revenues. _
It is published in, and gets its name from, Fortune
magazine.
forty, n. Archaic. Forty acres ofland in the form of a
square <the south forty>. To determine a forty, a
section ofland (640 acres) was quartered, and one of
those quarters was again quartered.
forty-days court. See COURT OF ATTACHMENTS.
forum, n. (I5c) 1. A public place, esp. one devoted to
assembly or debate. See PUBLIC FORUM; NONPUBLIC
FORUM. 2. A court or other judicial body; a place of
jurisdiction. PI. forums, fora.
forum actus (for-;:!m ak-t;:ls). [Latin "the forum of the
act"] Rist. The place where an act was done.
forum competens (for-dm kom-p;:l-tenz). [Latin] Rist.
A competent court; a court that has jurisdiction over
a case.
forum conscientiae (for-dm kon-shee-en-shee-ee). [Latin
"the forum ofconscience"] Rist. The tribunal or court
ofconscience. This court was usu. a court of equity.
See COURT OF CONSCIENCE.
forum contentiosum (for-dm bn-ten-shee-oh-sdm).
[Latin "the forum of contention"] Rist. A court of
justice; a place for litigation.
726 forum contractus
forum contractus (for-am kan-trak-tas). [Latin "the
forum of the contract"] Hist. 1. The place where a
contract was made, and thus the place ofjurisdiction.
2. The court ofthe place where a contract was made.
forum conveniens (for-am bn-vee-nee-enz). [Latin "a
suitable forum"] The court in which an action is most
appropriately brought, considering the best interests
and convenience of the parties and witnesses. Cf.
FORUM NON CONVENIENS.
forum domesticum (for-am da-mes-ti-kam). [Latin]
Hist. A domestic court. _ This type of court decides
matters (such as professional discipline) arising within
the organization that created it.
forum domicilii (for-am dom-;}-sil-ee-I). [Latin) Hist.
The forum or court of the domicile, usu. ofthe defen
dant.
forum ecclesiasticum (for-;}m e-klee-z[h]ee-as-ti-k;}m).
[Latin] Hist. An ecclesiastical court. Also termed
judicium ecclesiasticum.
forum externum (for-am ek-star-n;}m), n. [Latin
"external tribunal"] Eccles. law. A court dealing with
legal cases pertaining to or affecting the corporate life
ofthe church.
forum inconveniens. See FORUM NON CONVENIENS.
forum internum (for-am in-tar-n;}m), n. [Latin "internal
tribuna!"] Eccles. law. A court ofconscience; a court for
matters of conscience or the confessional.
forum ligeantiae rei (for-am lij-ee-an-shee-ee ree-I).
[Latin] Hist. The forum of the defendant's allegiance;
the court or jurisdiction ofthe country to which the
defendant owes allegiance.
forum non competens (for-am non kom-pa-tenz). [Latin]
Hist. An inappropriate court; a court that lacks juris
diction over a case.
forum non conveniens (for-am non k;}n-vee-nee-enz).
[Latin "an unsuitable court"] Civil procedure. The
doctrine that an appropriate forum even though
competent under the law -may divest itself ofjuris
diction if, for the convenience of the litigants and the
witnesses, it appears that the action should proceed
in another forum in which the action might also have
been properly brought in the first place. Also termed
forum inconveniens. [Cases: Courts Federal
Courts
"Forum non conveniens allows a court to exercise its discre
tion to aVOid the oppression or vexation that might result
from automatically honoring plaintiff's forum choice.
However, dismissal on the basis of forum non conveniens
also requires that there be an alternative forum in which
the suit can be prosecuted. It must appear that jurisdiction
over all parties can be secured and that complete relief
can be obtained in the supposedly more convenient court.
Further, in at least some states, it has been held that the
doctrine cannot be successfully invoked when the plaintiff
is resident of the forum state since. effectively, one of the
functions of the state courts is to provide a tribunal in
which their residents can obtain an adjudication of their
grievances. But in most instances a balancing of the can
venience to all the parties will be considered and no one
factor will preclude a forum non coveniens dismissal. as long as another forum is available." Jack H. Friedenthal et
aI., Civil Procedure 2.17, at 87-88 (2d ed. 1993).
forum originis (for-<lm <I-rij-a-nis). [Latin] Hist. The
forum or place ofa person's birth, considered as a place
ofjurisdiction.
forum regium (for-am ree-jee-am). [Latin] Hist. The
king's court.
forum rei (for-<lm ree-I). [Latin] Hist. 1. The forum ofthe
defendant, I.e., the place where the defendant is domi
ciled or resides. 2. FORUM REI SITAE.
forum rei gestae (for-am ree-I jes-tee). [Latin] Hist. lhe
forum or court of a res gesta (thing done); the place
where an act was done, considered as a place of juris
diction.
forum rei sitae (for-am ree-I sl-tee). [Latin] Hist. The
court where the thing or subject-matter in controversy
is situated, considered as a place of juris |
[Latin] Hist. The
court where the thing or subject-matter in controversy
is situated, considered as a place of jurisdiction.
Often shortened to forum rei.
forum seculare (for-am sek-ya-Iair-ee). [Latin] Hist. A
secular court. -Also spelled forum saeculare.
forum-selection clause. (1970) A contractual provision
in which the parties establish the place (such as the
country, state, or type ofcourt) for specified litigation
between them. -Also termed choice-of-exclusive
forum clause. Cf. CHOICE-OF-LAW CLAUSE. [Cases: Con
tracts 127(4),206.]
forum-shopping. (1954) The practice of choosing the
most favorable jurisdiction or court in which a claim
might be heard. - A plaintiff might engage in forum
shopping, for example, by filing suit in a jurisdiction
with a reputation for high jury awards or by filing
several similar suits and keeping the one with the pre
ferred judge. Cf. JUDGE-SHOPPING.
forum state. Conflict oflaws. The state in which a suit
is filed.
for use. For the benefit or advantage of another. See
USE.
forward agreement. See forward contract under
CONTRACT.
forward and backward at sea. Marine insurance. From
port to port in the course of a voyage, and not merely
from one terminus to the other and back.
forward confusion. See CONFUSION.
forward contract. See CONTRACT.
forward cover. The purchase of a cash commodity to
meet the obligation ofa forward contract. See forward
contract under CONTRACT.
forwarding agent. See AGENT (2).
forward market. Seefutures market under MARKET.
forward-rate agreement. A contract that specifies what
the interest rate on an obligation will be on some future
date. Abbr. FRA.
forward triangular merger. See triangular merger under
MERGER.
727
fossage (fos-ij), n. Hist. A duty paid to maintain a moat
around a fortification.
foster, adj. (bef. 12c) 1. (Of a relationship) involving
parental care given by someone not related by blood
or legal adoption <foster home>. 2. (Of a person)
giving or receiving parental care to or from someone
not related by blood or legal adoption <foster parent>
<foster child>.
foster, vb. 02c) To give care to (something or someone);
esp., to give parental care to (a child who is not one's
natural or legally adopted child).
fosterage, n. (l7c) 1. The act of caring for another's child.
2. The entrusting ofa child to another. 3. The condition
of being in the care of another. 4. The act of encourag
ing or promoting.
foster care. (1876) 1. A federally funded child-welfare
program providing substitute care for abused and
neglected children who have been removed by court
order from their parents' or guardians' care or for
children voluntarily placed by their parents in the tem
porary care of the state because of a family crisis. 42
USCA 670-679a. The state welfare agency selects,
trains, supervises, and pays those who serve as foster
parents. Cf. ADOPTION (1). [Cases: InfantsC=226.]
long-term foster care. The placing of a child in foster
care for extended periods, perhaps even for the child's
entire minority, in lieu offamily reunification, termi
nation and adoption, or guardianship . Although
most courts do not generally find this arrangement
to be in a child's best interests, sometimes it is the
only possibility, as when the child, because of age or
disability, is unlikely to be adopted or when, although
the parent cannot be permanently reunited with the
child, limited contact with the parent would serve the
child's best interests. Under the Adoption and Sate
Families Act, long-term foster care is the permanent
placement oflast resort. [Cases: Infants C=226.]
2. The area of social services concerned with meeting
the needs of children who participate in these types of
programs. [Cases: Infants C=17.]
foster-care drift. The phenomenon that occurs when
children placed in foster care remain in that system, in
legal limbo, for too many years oftheir developmental
life before they are reunited with their parents or freed
for adoption and placed in permanent homes . The
Adoption and Safe Families Act was passed in 1997
to help rectify this problem. See ADOPTION AND SAFE
FAMILIES ACT. [Cases: Infants C=155.]
foster-care placement. (1968) The (usu. temporary) act
of placing a child in a home with a person or persons
who provide parental care for the child. Cf. OUT-OF
HOME PLACEMENT. [Cases: Infants
foster-care review board. A panel of screened and
trained volunteers who routinely review cases of
children placed in foster care, examine efforts at per
manency planning, and report to the court. [Cases:
Infants (',.:..-::> 17, 226.] foundling hospital
foster child. See CHILD.
foster father. See foster parent under PARENT.
foster home. (l9c) A household in which foster care is
provided to a child who has been removed from his or
her birth or adoptive parents, usu. for abuse or neglect.
A foster home is usu. an individual home, but it can
also be a group home. [Cases: Infants C=226.]
fosterlean (fos-tdr-Ieen). Hist. Remuneration for rearing
a foster child.
fosterling. (bef. 12c) Seefoster child under CHILD.
foster mother. See foster parent under PARENT.
foster parent. See PARENT.
foul bill oflading. See BILL OF LADING.
foundation. (14c) 1. The basis on which something is
supported; esp., evidence or testimony that establishes
the admissibility ofother evidence daying the founda
tion>. [Cases: Evidence C=-:::' 117.] 2. A fund established
for charitable, educational, religious, research, or other
benevolent purposes; an endowment <the Foundation
for the Arts>.
privatefoundation. A charitable organization that is
funded by a Single source, derives its income from
investments rather than contributions, and makes
grants to other charitable organizations . A private
foundation is generally exempt from taxation. IRC
(26 USCA) 509. Also termed private nonoperat
ingfoundation.
private nonoperatingfoundation. See privatefoun
dation.
private operating foundation. A private foundation
that conducts its own charitable program rather than
making grants to other charitable organizations .
Most ofthe foundation's earnings and assets must be
used to further its particular charitable purpose.
foundational evidence. See EVIDENCE.
foundational fact. See predicate fact under FACT.
founded on, adj. (16c) Having as a basis <the suit was
founded on the defendant's breach ofcontract>.
founder, n. (l4c) 1. A person who founds or establishes;
esp., a person who supplies funds for an institution's
future needs. 2. SETTLOR (1).
founder's share. (usu. pl.) In England, a share issued to
the founder ofa company as a part ofthe consideration
for the business . Now rare, a founder's share partici
pates in profits only if the dividend on ordinary shares
has been paid to a specified amount.
founding father. (1914) A prominent figure in the
founding of an institution or esp. a country; specif.,
one who played a leading role in founding the United
States of America, esp. in the Revolutionary War and
the making ofthe U.S. Constitution.
foundling. (14c) A deserted or abandoned infant.
foundling hospital. A charitable institution, found esp.
in Europe, the purpose of which is to care for aban
doned children.
four, rule of 728
four, rule of. See RULE OF FOUR.
four corners. (1874) The face ofa written instrument.
The phrase derives from the ancient custom ofputting
all instruments (such as contracts) on a single sheet of
parchment, as opposed to multiple pages, no matter
how long the sheet might be. At common law, this
custom prevented people from fraudulently inserting
materials into a fully signed agreement. '{he require
ment was that every contract could have only four
corners. [Cases: Contracts (;:::~ 143(1), 147(2); Evidence
(=>397,448.]
four-corners rule. (1948) 1. The principle that a doc
ument's meaning is to be gathered from the entire
document and not from its isolated parts. [Cases: Con
tracts (=143.5; Evidence <8::::>448.] 2. 'fhe principle that
no extraneous evidence should be used to interpret an
unambiguous document. Cf. PAROL-EVIDENCE RULE.
[Cases: Evidence (';:::"448.]
IV-D agency. See CHILD-SUPPORT-ENFORCEMENT
AGENCY.
four-folding. Hist. The quadrupling of a property's
taxable value for purposes of penalizing a person
who falsely underreported the property's true taxable
value.
"In the State ofConnecticut a number ofmen are chosen
annually by each town, to receive from each inhabitant
a list ofthe taxable property in his possession. This list
is required by law; and is made up by the proprietor.
The men, who receive it, are from their employment
called Listers. If the proprietor gives in a false list, he
is punished by having the falsified article increased on
the list four-fold .... We therefore style this punishment
fourJolding." 4 Timothy Dwight, Travels in New-England
and New-York 284 (1822).
401(k) plan. See EMPLOYEE BENEFIT PLAN.
403(b) plan. See EMPLOYEE BENEFIT PLAN.
419 fraud. See advance-fee fraud under FRAl:D.
457 plan. See EMPLOYEE BENEFIT PLAN.
Fourteenth Amendment. The constitutional amend
ment, ratified in 1868, whose primaryprovisions effec
tively apply the Bill ofRights to the states by prohibiting
states from denying due process and equal protection
and from abridging the privileges and immunities of
U.S. citizenship. The amendment also gave Congress
the power to enforce these provisions, leading to legisla
tion such as the civil-rights acts. [Cases: Constitutional
Law C=>2910-2932, 3000-3833, 3840-4841.]
Fourth Amendment. The constitutional amendment,
ratified with the Bill of Rights in 1791, prohibiting
unreasonable searches and seizures and the issuance of
warrants without probable cause. See PROBABLE CAUSE.
[Cases: Searches and Seizures
fourth estate. (1821) The journalistic profession; the
news media. The term comes from the British Par
liament's reporters' gallery, whose influence was said to
equal Parliament's three traditional estates: the Lords
Spiritual, the Lords Temporal, and the Commons. (In France, the three estates were the clergy, the nobility,
and the commons.)
fourth-sentence remand. See REMAND.
four unities. (1852) The four qualities needed to create
a joint tenancy at common law -interest, possession,
time, and title. See UNITY (2). [Cases: Joint Tenancy
fovere consimilem causam (toh-veer-ee k<)n-sim-J-idm
kaw-zJm). [Law Latin] Hist. To favor a similar case.
A judge who is disqualified for having a personal
interest in a case may also be disqualified in a later case
if the ruling in the former case could affect the ruling
in the latter.
Fox's Libel Act. Hist. A 1792 statute that gave the jury
in a libel prosecution the right ofrendering a guilty or
not-guilty verdict on the whole matter in issue. The
jury was no longer bound to find the defendant guilty
ifit found that the defendant had in fact published the
allegedly libelous statement. The Act empowered juries
to decide whether the defendant's statement conformed
to the legal standard for libel.
foy (foy or fwah). [Law French] Faith; allegiance.
FPA. abbr. Free from particular average.
"F.P.A. means Free from Particular Average; that is to say,
the insured can recover only where the loss is total or is
due to a general average sacrifice. The claims under the
Sue and Labour clause are not affected by this stipulation."
2 EW. Chance, Principles ofMercantile Law 128 (PW. French
ed., 10th ed. 1951).
FPC clause. See AREA-RATE CLAUSE.
FPLS. abbr. FEDERAL PARENT LOCATOR SERVICE.
Fr. abbr. 1. French. 2. FRAGMENTA.
FRA. abbr. 1. FEDERAL RAILROAD ADMINISTRATION. 2.
FORWARD-RATE AGREEMENT.
fractional, ad). (1815) (Of a tract of land) covering an
area less than the acreage reflected on a survey; per
taining to any irregular division of land containing
either more or less than the conventional amount of
acreage.
fractional currency. See CGRRENCY.
fractional interest. See undivided interest under
INTEREST (2).
fragmenta (frag-men-tJ), n. pl. [Latin "fragments"]
Roman law. Passages drawn from the writings of
Roman jurists and compiled in Justinian's Digest.
Abbr. Fr.; Ff.
fragmented literal similarity. See SIMILARITY.
frame, vb. (14c) 1. To plan, shape, or construct; esp., to
draft or otherwise draw up (a document). 2. To incrimi
nate (an innocent person) with false evidence, esp. fab
ricated. |
up (a document). 2. To incrimi
nate (an innocent person) with false evidence, esp. fab
ricated. -framable, frameable, adj.
frame-up, n. A plot to make an innocent person appear
guilty.
framing. On the Internet, a website's display ofanother
entity's Web page inside a bordered area, often without
displaying the page's URL or domain name. Framing
729
may constitute a derivative work and may infringe on
a copyright or trademark ifdone without giving credit
to or obtaining permission from the other website's
owner. [Cases: Trademarks
francbordus. See FREE-BORD.
franchise (fran-chlz), n. (14c) 1. 'The right to vote.
Also termed elective franchise. [Cases: Elections
1.] 2. The government-conferred right to engage in a
specific business or to exercise corporate powers.
Also termed corporate franchise; general franchise.
[Cases: Franchises (,..~1.]
'When referring to government grants (other than patents,
trademarks, and copyrights), the term 'franchise' is often
used to connote more substantial rights, whereas the term
'license' connotes lesser rights. Thus, the rights necessary
for public utility companies to carryon their operations
are generally designated as franchise rights. On the other
hand, the rights to construct or to repair, the rights to
practice certain profeSSions, and the rights to use or to
operate automobiles are generally referred to as licenses."
1 Eckstrom's Licensing in Foreign and Domestic Operations
1.02[31. at HO to 1-11 (David M. Epstein ed" 1998).
"In a violent conceptual collision, some franchisors
maintain that a franchise is merely an embellished license
and therefore revocable at will. Franchisees contend that a
franchise is a license coupled with an interest, not subject
to unlimited control by franchisors. As a result of this
disagreement, legislative draftsmen have had difficulty
defining 'franchise.'" 1 Harold Brown, Franchising Realities
and Remedies 1.03[1], at H7 (1998).
franchise appurtenant to land. Rare. A franchise that
is used in connection with real property and thus is
sometimes characterized as real property.
general franchise. A corporation's charter.
special franchise. A right conferred by the government,
esp. one given to a public utility, to use property for
a public use but for private profit. [Cases: Franchises
C=:> 1.]
3. The sole right granted by the owner of a trademark
or tradename to engage in business or to sell a good or
service in a certain area. 4. 'The business or territory
controlled by the person or entity that has been granted
such a right.
commercial franchise. A franchise using local capital
and management by contracting with third parties
to operate a facility identified as offering a particular
brand ofgoods or services.
sports franchise. 1. A franchise granted by a profes
sional sports league to field a team in that league. 2.
The team itself.
trialfranchise. A franchise having an initial term of
limited duration, such as one year.
franchise, vb. (14c) To grant (to another) the sole right of
engaging in a certain business or in a business using a
particular trademark in a certain area.
franchise agreement. (1905) The contract between a
franchisor and franchisee establishing the terms and
conditions of the franchise relationship. -State and
federal laws regulate franchise agreements. [Cases: frank
Antitrust and Trade Regulation C=:>262; Contracts C-~
202(1).]
franchise appurtenant to land. See FRANCHISE (2).
franchise clause. Insurance. A provision in a casualty
insurance policy stating that the insurer will pay a
claim only ifit is more than a stated amount, and that
the insured is responsible for all damages if the claim
is under that amount. _ Unlike a deductible, which the
insured always has to pay, with a franchise clause, once
the claim exceeds the stated amount, the insurer pays
the entire claim.
franchise court. Hist. A privately held court that (usu.)
exists by virtue of a royal grant, with jurisdiction
over a variety of matters, depending on the grant and
whatever powers the court acquires over time. -In
1274, Edward I abolished many of these feudal courts
by forcing the nobility to demonstrate by what author
ity (quo warranto) they held court. Ifa lord could not
produce a charter reflecting the franchise, the court
was abolished. -Also termed courts ofthe franchise.
"Dispensing justice was profitable. Much revenue could
come from the fees and dues, fines and amercements.
This explains the growth of the second class of feudal
courts, the Franchise Courts. They too were private courts
held by feudal lords. Sometimes their claim to jurisdiction
was based on old pre-Conquest grants .,. But many of
them were, in reality, only wrongful usurpations of private
jurisdiction by powerful lords. These were put down after
the famous Quo Warranto enquiry in the reign of Edward
I." W,J.V. Windeyer, Lectures on Legal History 56-57 (2d ed.
1949).
franchisee. One who is granted a franchise.
franchise fee. See FEE (1).
franchiser. See FRANCHISOR.
franchise tax. See TAX.
franchisor. (19c) One who grants a franchise. Also
spelledfranchiser.
francigena (fran-sd-jee-nd). [Law Latinfrancus "french"
+ Latin genitus "born"] Hist. 1. A person born in
France. 2. Any alien in England; a foreigner. See
FRENCHMAN.
francus (frangk-ds). [fro Frenchfranc "free"] Hist. A
freeman.
francus bancus. See FREE BENCH.
francus homo (frangk-Js hoh-moh). Hist. A free man.
francus tenens. See FRANK-TENANT.
frank, adj. [Law French] Hist. Free. Also spelled
fraunc; fraunche; fraunke.
frank, n. 1. (cap.) A member of the Germanic people who
conquered Gaul in the 6th century. -France received its
name from the Franks. 2. A signature, stamp, or mark
affixed to mail as a substitute for postage. [Cases: Postal
Service C=:>15.] 3. The privilege ofsending certain mail
free of charge, accorded to certain government officials,
such as members of Congress and federal courts.
Also termed (in sense 3) franking privilege, [Cases:
United States C=:> 12.] -frank, vb.
730 frankalmoin
frankalmoin (frangk-al-moyn). [Law French "free
alms"] (I6c) Rist. A spiritual tenure by which a reli
gious institution held land, usu. with a general duty
to pray for the donor . This tenure differed from the
tenure by divine service, which required specific church
services, such as a certain number of masses or alms
distributions. -Also spelled frankalmoign; franka
lmoigne. -Also termed almoign; almoin;free alms;
libera eleemosyna. See spiritual tenure under TENURE.
"Frankalmoin, or free alms, was a survival of Anglo
Saxon law, and implied simply an indefinite promise to
pray for the soul of the donor; but since it was deemed a
tenure by which the land was held, the general doctrine
of 'services' was applied. On the other hand, in the case
of Divine Service, which was much less frequently met
with, the tenant promised a definite number of prayers, a
duty which might be enforced in the King's courts." A.K.R.
Kiralfy, Potter's Outlines of English Legal History 210 (5th
ed. 1958).
frank bank. See FREE BENCH.
frank-chase. Rist. Free chase; a person's liberty or right
to hunt or log within a certain area . Others holding
land within the frank-chase area were forbidden from
hunting or logging in it. See CHASE.
frank-fee. (ISc) Rist. Freehold land -land that one
held to oneself and one's heirs -exempted from all
services except homage; land held other than by ancient
demesne or copyhold.
frank ferm. Rist. An estate in land held in socage, the
nature of the fee having been changed from knight's
service by enfeoffment for certain yearly services.
Also spelled frank-ferme.
franking privilege. See FRANK (3).
frank-law. Rist. The rights and privileges of a citizen
or freeman; specif., the condition of being legally
capable of giving an oath (esp. as a juror or witness).
See LEGALIS HOMO.
"Frank law ... may be understood from Bracton's descrip
tion of the consequences of lOSing it, among which the
principal one was, that the parties incurred perpetual
infamy, so that they were never afterwards to be admitted
to oath, because they were not deemed to be othesworth,
(that is, not worthy of making oath,) nor allowed to give
testimony." 1 Alexander M. Burrill, A Law Dictionary and
Clossary657-58 (2d ed. 1867).
franklin (frangk-lin). (14c) Rist. A freeman; a freeholder;
a gentleman. -Also spelled francling;frankleyn;fran
kleyne.
frankmarriage. (I4c) Rist. An entailed estate in which
the donor retains control of the land by refuSing to
accept feudal services from the donee (usu. the donor's
daughter) for three generations . If the donee's issue
fail in that time, the land returns to the donor. A donor
who accepted homage (and the corresponding services
arising from it) from the donee risked lOSing control of
the land to a collateral heir. After three generations - a
time considered sufficient to demonstrate that the line
was well established -the donee's heir could insist on
paying homage; doing so transformed the estate into
a fee simple. -Also termed liberum maritagium. See
MARITAGIUM. "Only when homage has been done are we to apply the
rule which excludes the lord from the inheritance. This
is at the bottom of one of the peculiarities of the 'estate
in frankmarriage.' When a father makes a provision for a
daughter, he intends that if the daughter has no issue or
if her issue fails -at all events if this failure occurs in the
course of a few generations -the land shall come back
to him or to his heir. Therefore no homage is done for the
estate in frankmarriage until the daughter's third heir has
entered, for were homage once done, there would be a
danger that the land would never come back to the father
or to his heir." 2 Frederick Pollock & Frederic W. Maitland,
The History ofEnglish Law Before the Time ofEdward /291
(2d ed. 1899).
frankpledge. (bef. 12c) Rist. A promise given to the
sovereign by a group of ten freeholders (a tithing)
ensuring the group's good conduct. The frankpledge
was of Saxon origin, but continued after the Norman
Conquest. The members of the group were not liable
for an injury caused by an offending member, but they
did act as bail to ensure that the culprit would appear
in court. They were bound to produce a wrongdoer
for trial. -Also termed borrow; laughe. See VIEW OF
FRANKPLEDGE. Cf. DECENARY.
"Since there was no elaborate group of royal officials,
the policing of the country had to be arranged for in a
special way. The commonest way was to hold each house
hold responsible for the offenses of any member of it. A
further step was taken when, in the time of (nut, a group
of ten men was formed who were responsible for each
other, in the sense that everyone was security, borh, for
the good behavior of the others. This group was called
fri-borh, frankpledge, and remained for a long time one of
the chief police methods of England." Max Radin, Handbook
ofAnglo-American Legal History 33-34 (1936).
Franks hearing. (I979) A hearing to determine whether a
police officer's affidavit used to obtain a search warrant
that yields incriminating evidence was based on false
statements by the police officer. Franks v. Delaware, 438
U.S. 154, 98 S.Ct. 2674 (1978).
frank-tenant. Rist. A freeholder. -Also termed fra ncu 5
tenens. See FREEHOLD.
frank-tenement. Rist. A free tenement; a freehold . This
term described both the tenure and the estate.
FRAP (frap). abbr. FEDERAL RULES OF APPELLATE PRO
CEDURE.
frater (fray-t;Jr), n. [Latin] Roman law. A brother.
frater consanguineus (fray-t;Jr kon-sang-gwin-ee-;Js).
A brother or half-brother having the same father.
frater germanus (fray-t;Jr j;Jr-may-n;Js). A brother
having both parents in common.
frater nutricius (fray-t;Jr n[y]oo-trish-ee-;Js). A foster
brother who was suckled by the same wet nurse.
frater uterinus (fray-t;Jr yoo-t;J-rI-n;Js). A brother or
half-brother having the same mother.
fraternal, adj. (ISc) l. Ofor relating to the relationship of
brothers. 2. Ofor relating to a fraternity or a fraternal
benefit association.
fraternal benefit association. A voluntary organiza
tion or society created for its members' mutual aid and
benefit rather than for profit, and whose members have
a common and worthy cause, |
created for its members' mutual aid and
benefit rather than for profit, and whose members have
a common and worthy cause, objective, or interest.
These associations usu. have a lodge system, a gov
erning body, rituals, and a benefits system for their
members. -Also termedfraternal benefit sOciety;fra
ternity; fraternal lodge; fraternal order. Cf. FRIENDLY
SOCIETY. [Cases: Beneficial Associations
fraternal insurance. See INSURANCE.
fraternal lodge. See FRATERNAL BENEFIT ASSOCIA
TION.
fraternal order. See FRATERNAL BENEFIT ASSOCIA
TION.
fraternal society. See benevolent association under ASSO
CIATION.
fraternity. See FRATERNAL BENEFIT ASSOCIATION.
frater nutricius. See FRATER.
frater uterinus. See FRATER.
fratres conjurati (fray-treez kon-jd-ray-tI). [Latin "sworn
brothers"] Hist. Sworn brothers or companions for the
defense oftheir sovereign or for other purposes.
fratriage (fra-tree-ij or fray-). Hist. l. A younger brother's
portion ofhis father's estate, received as an inheritance.
Under feudal law, even though the land was from the
father's estate, the younger brother was bound to pay
homage to the older brother. 2. A portion ofan inheri
tance given to coheirs. Also termedfratriagium.
fratricide (fra-trd-SId or fray-). (15c) 1. The killing of
one's brother or sister. 2. One who has killed one's
brother or sister. Cf. SORORICIDE. fratricidal, adj.
fraud, n. (14c) 1. A knowing misrepresentation ofthe
truth or concealment of a material fact to induce
another to act to his or her detriment. Fraud is usu. a
tort, but in some cases (esp. when the conduct is willful)
it may be a crime. -Also termed intentional fraud.
[Cases: Fraud (;:=> 1, 3, 16, 68.] 2. A misrepresentation
made recklessly without belief in its truth to induce
another person to act. [Cases: Fraud (;:=> 13(3).] 3. A
tort arising from a knowing misrepresentation, con
cealment ofmaterial fact, or reckless misrepresentation
made to induce another to act to his or her detriment.
[Cases: Fraud C=>13(2), 13(3), 16.] 4. Unconscionable
dealing; esp., in contract law, the unfair use of the
power arising out ofthe parties' relative positions and
resulting in an unconscionable bargain. [Cases: Con
tracts (;:=> 1.] -fraudulent, adj.
"[TJhe use of the term fraud has been wider and less
precise in the chancery than in the commonlaw courts.
This followed necessarily from the remedies which they
respectively administered. Common law gave damages
for a wrong, and was compelled to define with care the
wrong which furnished a cause of action. Equity refused
specific performance of a contract, or set aside a transac
tion, or gave compensation where one party had acted
unfairly by the other. Thus 'fraud' at common law is a false
statement ... : fraud In equity has often been used as
meaning unconscientious dealing -'although, I think,
unfortunately,' a great equity lawyer has said." William R.
Anson, Principles of the Law of Contract 263 (Arthur L
Corbin ed., 3d Am. ed. 1919). actual fraud. (17c) A concealment or false represen
tation through a statement or conduct that injures
another who relies on it in acting. -Also termed
fraud in fact; positive fraud; moral fraud. [Cases:
Fraud(;::::;c3.]
advance-fee fraud. A criminal fraud in which the
victim is persuaded by the perpetrator to pay "fees"
in anticipation ofreceiving a much larger benefit that
is ultimately never delivered . The perpetrator usu.
claims to have, or to represent someone with, a large
sum ofmoney that must be immediately transferred
out ofa foreign country for some compelling reason,
such as to avoid seizure by a government. The criminal
promises the victim a portion ofthe money in return
for the victim's agreement to open a bank account in
the victim's name. The victim then must pay "up front
fees" to the designated "bank" and others. Although
the Internet has become a favorite tool for this fraud, it
has been around for years, beginning with handwrit
ten or typed letters and later faxes. Because advance
fee fraud is believed to have Originated in Nigeria, it is
also termed 419fraud after the section ofthe Nigerian
penal code designed to punish those who defraud by
this method. [Cases: Fraud C:'68.]
affiliate click fraud. Click fraud committed by a
third party who agrees to host the ad in exchange
for payment based on the number ofclicks. See click
fraud.
affinity fraud. A fraud in which the perpetrator tailors
the fraud to target members of a particular group
united by common traits or interests that produce
inherent trust. The perpetrator often is or pretends
to be a member ofthe group. Investment scams such
as Ponzi or pyramid schemes are common forms of
affinity fraud. When a religiOUS group is targeted, it
is usu. called religious-affinity fraud.
bankfraud. The criminal offense ofknowingly execut
ing, or attempting to execute, a scheme or artifice to
defraud a financial institution, or to obtain property
owned by or under the control of a financial institu
tion, by means of false or fraudulent pretenses, rep
resentations, or promises. 18 USCA 1344. [Cases:
Banks and Banking C::>509.10, 509.25.]
bankruptcy fraud. (1815) A fraudulent act connected to
a bankruptcy case; esp., any ofseveral proscribed acts
performed knowingly and fraudulently in a bank
ruptcy case, such as concealing assets or destroying,
withholding, or falSifying documents in an effort to
defeat bankruptcy-code provisions. See 18 USCA
152. Also termed criminal bankruptcy; bankruptcy
crime. [Cases: Bankruptcy (;::::;c.'3861.]
civilfraud. (18c) 1. FRAUD (J). 2. Tax. An intentional
but not willful evasion of taxes. The distinction
between an intentional (I.e., civil) and willful (I.e.,
criminal) fraud is not always clear, but civil fraud
carries only a monetary, noncriminal penalty. Cf.
criminal fraud; TAX EVASION. [Cases: Internal Revenue
(':::>5218; Taxation
click fraud. A scheme in which a person or robot
repeatedly clicks on a merchant's pay-per-click adver
tisement on a website for purposes other than viewing
the website or making a purchase. [Cases: Telecom
munications 0=> 1341.]
collateralfraud. See extrinsicfraud (1).
common-law fraud. See promissory fraud.
competitor click fraud. Click fraud committed by a
business's competitor in order to increase the amount
of money the advertising merchant must pay to the
site hosting the ad. See click fraud.
constructive fraud. (18c) 1. Unintentional deception
or misrepresentation that causes injury to another.
Also termed legal fraud; fraud in contemplation of
law; eqUitable fraud;fraud in equity. 2. See fraud in
law. [Cases: Fraud 0=>5.]
"In equity law the term fraud has a wider sense, and
includes all acts. omissions, or concealments by which
one person obtains an advantage against conscience over
another, or which equity or public policy forbids as being
to another's prejudice; as acts in violation of trust and
confidence. This is often called constructive, legal, or equi
table fraud, or fraud in eqUity." Encyclopedia ofCriminology
175 (Vernon C. Branham & Samuel B. Kutash eds., 1949),
S.v. "Fraud."
criminal fraud. (18c) Fraud that has been made illegal
by statute and that subjects the offender to criminal
penalties such as fines and imprisonment . An
example is the willful evasion of taxes accomplished
by filing a fraudulent tax return. Cf. civil fraud; larceny
by trick under LARCENY. [Cases: Internal Revenue ~
5263.20; Taxation
election fraud. See ELECTION FRAUD.
equitable fraud. See constructive fraud (1).
extrinsic fraud. (1851) 1. Deception that is collateral
to the issues being considered in the case; intentional
misrepresentation or deceptive behavior outside the
transaction itself (whether a contract or a lawsuit),
depriving one party of informed consent or full par
ticipation . For example, a person might engage in
extrinsic fraud by convincing a litigant not to hire
counselor answer by dishonestly saying the matter
will not be pursued. Also termed collateral fraud.
2. Deception that prevents a person from knowing
about or asserting certain rights. [Cases: Federal Civil
Procedure (."::::>2654; Judgment 0=>375,443(1).]
419 fraud. See advance-fee fraud.
fraud in contemplation oflaw. See constructive fraud (1).
fraud in equity. See constructive fraud (1).
fraud in fact. See actual fraud.
fraud in law. (17c) Fraud that is presumed under the
circumstances, as when a debtor transfers assets and
thereby impairs creditors' efforts to collect sums
due. -Also termed constructive fraud.
fraud in the execution. Seefraud in the factum.
fraud in the factum. (1848) Fraud occurring when a
legal instrument as actually executed differs from the one intended for execution by the person who
executes it, or when the instrument may have had no
legal existence . Compared to fraud in the induce
ment, fraud in the factum occurs only rarely, as when
a blind person signs a mortgage when misleadingly
told that the paper is just a letter. Also termed fraud
in the execution;fraud in the making. Cf. fraud in the
inducement. [Cases: Contracts 0=>94(1).]
fraud in the inducement. (1831) Fraud occurring
when a misrepresentation leads another to enter into
a transaction with a false impression of the risks,
duties, or obligations involved; an intentional mis
representation of a material risk or duty reasonably
relied on, thereby injuring the other party without
vitiating the contract itself, esp. about a fact relating
to value. -Also termed fraud in the procurement.
Cf. fraud in the factum. [Cases: Contracts C='94(1);
Fraud 24.]
fraud in the making. Seefraud in the factum.
fraud in the procurement. See fraud in the induce
ment.
fraud on the community. Family law. In a community
property state, the deliberate hiding or fraudulent
transfer of community assets before a divorce or death
for the purpose of preventing the other spouse from
claiming a half-interest ownership in the property.
[Cases: Husband and Wife 0=>265.]
fraud on the court. (1810) In a judicial proceeding,
a lawyer's or party's misconduct so serious that it
undermines or is intended to undermine the integ
rity of the proceeding . Examples are bribery of a
juror and introduction of fabricated evidence. [Cases:
Federal Civil Procedure Judgment 0=>372,
440.]
fraud on the market. 1. Fraud occurring when an issuer
ofsecurities out misinformation that affects the
market price of stock, the result being that people who
buy or sell are effectively misled even though they did
not rely on the statement itself or anything derived
from it other than the market price. [Cases: Securi
ties Regulation 2. The securities-law claim
based on such fraud. See FRAUD-ON-THE-MARKET
PRINCIPLE.
fraud on the Patent Office. Patents. A defense in a
patent-infringement action, attacking the validity of
the patent on the grounds that the patentee gave the
examiner false or misleading information or withheld
relevant information that the examiner would have
considered important in considering patentability .
The scope of prohibited acts is wider than that covered
by common-law fraud, and today the defense is gener
ally called "inequitable conduct before the PTO." If
the defense is established, the entire patent is rendered
unenforceable. See defense of inequitable conduct
under DEFENSE (1). [Cases: Patents C-97.]J
hidden fraud. Seefraudulent concealment under CON
CEALMENT.
733
insurance fraud. Fraud committed against an insurer,
as when an insured lies on a policy application or fab
ricates a claim.
intrinsic fraud. (1832) Deception that pertains to an
issue involved in an original action . Examples
include the use of fabricated evidence, a false return
of service, perjured testimony, and false receipts or
other commercial documents. [Cases: Judgment
373,441.]
legal fraud. See constructive fraud (1).
long-firm fraud. The act ofobtaining goods or money
on credit by falsely posing as an established business
and having no intent to pay for the goods or repay
the loan.
mailfraud. (1918) An act offraud using the U.S. Postal
Service, as in making false representations through
the mail to obtain an economic advantage. 18 USCA
1341-1347. [Cases: Postal Service ~35.]
moral fraud. See actual fraud.
positive fraud. See actual fraud.
promissory fraud. (1934 |
ud. See actual fraud.
positive fraud. See actual fraud.
promissory fraud. (1934) A promise to perform made
when the promisor had no intention of performing
the promise. -Also termed common-law fraud.
[Cases: Fraud ~12.]
religious-affinity fraud. See affinity fraud.
taxfraud. See TAX EVASION.
wire fraud. (1955) An act of fraud using electronic
communications, as by making false representations
on the telephone to obtain money . The federal Wire
Fraud Act provides that any artifice to defraud by
means of wire or other electronic communications
(such as radio or television) in foreign or interstate
commerce is a crime. 18 USCA 1343. [Cases: Tele
communications
fraud, badge of. See BADGE OF FRAUD.
fraudare (fraw-dair-ee), vb. [Latin] Roman law. To
defraud.
fraud by hindsight. Hist. Securities. A claim of fraud
based on the assumption that a corporation deliber
ately misled investors by issuing optimistic financial
statements or forecasts and later reporting worse-than
expected results. Suits for fraud by hindsight were
common in the early 19908. Congress eliminated this
claim in the Private Securities Litigation Reform Act of
1995. 15 USCA 78u-4(b). [Cases: Securities Regula
tion C=>60.27.J
fraude (frawd). [French] Civil law. Fraud committed in
performing a contract. Cf. DOL.
fraudfeasor (frawd-fee-zdr). A person who has commit
ted fraud. -Also termed defrauder.
fraud in the execution. See fraud in the factum under
FRAUD.
fraud on creditors. See FRAUDULENT CONVEYANCE (1).
fraud on the community. In a community-property
state, the deliberate hiding or fraudulent transfer of fraudulent conveyance
community assets before a divorce or death for the
purpose ofpreventing the other spouse from claiming
a half-interest ownership in the property.
fraud-on-the-market principle. Securities. The doctrine
that, in a claim under the antifraud provisions of the
federal securities laws, a plaintiff may presumptively
establish reliance on a misstatement about a securi
ty's value without proving actual knowledge of the
fraudulent statement -if the stock is purchased in an
open and developed securities market. _ This doctrine
recognizes that the market price of an issuer's stock
reflects all available public information. The presump
tion is rebuttable. Also termed fraud-on-the-market
theory. See fraud on the market under FRAUD. [Cases:
Securities Regulation ~60.25.]
frauds, statute of. See STATUTE OF FRAUDS.
fraudulent act. Conduct involving bad faith, dishonesty,
a lack ofintegrity, or moral turpitude. Also termed
dishonest act;fraudulent or dishonest act.
fraudulent alienation. 1. The transfer of property with
an intent to defraud others, esp. creditors and lien
holders. 2. The transfer of an estate asset by the estate's
administrator for little or no consideration.
fraudulent alienee. See ALIENEE.
fraudulent banking. The receipt of a deposit by a banker
who knew that the bank was insolvent at the time of the
deposit. [Cases: Banks and Banking <>82(2),83.]
fraudulent claim. A false insurance claim. See FRAUD.
fraudulent concealment. See CONCEALMENT.
fraudulent-concealment rule. See CONCEALMENT
RULE.
fraudulent conversion. See CONVERSION (2).
fraudulent conveyance. (I7c) 1. A transfer of property
for little or no consideration, made for the purpose of
hindering or delaying a creditor by putting the property
beyond the creditor's reach; a transaction by which the
owner of real or personal property seeks to place the
property beyond the reach ofcreditors. Also termed
fraud on creditors. [Cases: Fraudulent Conveyances
1.]
"With respect to the general power which is exercisable by
deed, it seems that the principle that the donee's creditors
can reach the property subject to the exercised general
power will have application only to the socalled fraudu
lent conveyance. That is to say, if the owned assets of the
donee after the donative inter vivos exercise are sufficient
to satisfy the creditors, then the exercise of the power will
not subject the appointive property to the claims of the
creditors; if, on the other hand, the owned assets of the
donee are inadequate to satisfy creditors' claims after the
exercise of the power. then the transfer resulting from the
exercise is likely to fall into the category of the fraudu
lent conveyance and the creditors will be able to reach
the appointive property in the hands of the appointee."
Thomas F. Bergin & Paul G. Haskell, Preface to Estates in
Land and Future Interests 173 (2d I'd. 1984).
2. Bankruptcy. A prebankruptcy transfer or obligation
made or incurred by a debtor for little or no consid
eration or with the actual intent to hinder, delay, or
defraud a creditor . A bankruptcy trustee may recover
such a conveyance from the transferee ifthe require
ments of 11 USCA 548 are met. Also termed fraud
ulent transfer. Cf. PREFERENTIAL TRANSFER. [Cases:
Bankruptcy (~=,2641-2651.]
fraudulent debt. See DEBT.
fraudulent joinder. See JOINDER.
fraudulent marriage. See MARRIAGE (1).
fraudulent misrepresentation. See MISREPRESENTA
TION.
fraudulent or dishonest act. See FRAUDULENT ACT.
fraudulent pretenses. See FALSE PRETENSES.
fraudulent representation. See fraudulent misrepresen
tation under MISREPRESENTATION.
fraudulent sale. See SALE.
fraudulent transfer. See FRAUDULENT CONVEYANCE (2).
fraus (fraws). [Latin] Deceit; cheating . For example, a
debtor who conveyed property with the specific intent
(Jraus) of defrauding a creditor risked having the con
veyance rescinded.
fraus legis (fraws lee-jis). [Latin "fraud on the law"]
Roman law. Evasion of the law; specif., doing some
thing that is not expressly forbidden by statute, but that
the law does not want done.
fray. See AFFRAY.
FRB. abbr. FEDERAL RESERVE BOARD OF GOVERNORS.
FRCA. abbr. See FAIR-CREDIT-REPORTING ACT.
FRCP. abbr. FEDERAL RULES OF CIVIL PROCEDURE.
F.R.D. abbr. Federal Rules Decisions; a series of
reported federal court decisions (beginning in 1938)
that construe or apply the Federal Rules of Civil and
Criminal Procedure . Also included are rule changes,
ceremonial proceedings offederal courts, and articles
on federal-court practice and procedure. Often
written FRD.
FRE. abbr. FEDERAL RULES OF EVIDENCE.
Freddie Mac. See FEDERAL HOME LOAN MORTGAGE COR
PORATION.
free, adj. (bef. 12c) 1. Having legal and political rights;
enjoying political and civil liberty <a free citizen>
<a free populace>. 2. Not subject to the constraint or
domination of another; enjoying personal freedom;
emancipated <a free person>. 3. Characterized by
choice, rather than by compulsion or constraint <free
will>. 4. Unburdened <the land was free of any encum
brances>. 5. Not confined by force or restraint <free
from prison>. 6. Unrestricted and unregulated <free
trade>. 7. Costing nothing; gratuitous <free tickets to
the game>. -freely, adv.
free, vb. 1. To liberate. 2. To remove (a person, animal,
or thing) from a constraint or burden.
free agency, n. (ca. 1955) A professional athlete's ability
to negotiate an employment contract with any team in
the league, rather than being confined to the league's
collective-bargaining system . Free agency is usu. granted to veteran players who have been in the league
for a certain number ofyears. Cf. RESERVE CLAUSE.
free agent, n.
free alms. See FRANKALMOIN.
free alongside ship. A mercantile-contract term allocat
ing the rights and duties of the buyer and the seller of
goods with respect to delivery, payment, and risk ofloss,
whereby the seller must clear the goods for export, and
deliver the goods to the wharfbeside the buyer's chosen
vessel. The seller's delivery is complete (and the risk
ofloss passes to the buyer) when the goods are placed
on the wharf beside the vessel. The buyer is responsible
for all costs of carriage. This term is used only when
goods are transported by sea or inland waterway. UCC
2-319. -Abbr. FAS. Cf. FREE ON BOARD; DELIVERED
EX QUAY. [Cases: Sales (~201(4).]
free and dear, adj. Unencumbered byany liens; market
able <free and clear title>.
free and common socage. See free socage under
SOCAGE.
free and equal, adj. (Of an election) conducted so that
the electorate has a reasonable opportunity to vote,
with each vote given the same effect. [Cases: Elections
free bench. Hist. A widow's (and occasionally a wid
ower's) interest in the deceased spouse's estate . Free
bench gave the surviving spouse a half interest in the
estate until death or remarriage. -Also termed francus
bancus;frank bank; liber bancus.
"The bench in question was, we may guess ... a bench at
the fireside. The surviving spouse has in time past been
allowed to remain in the house along with the children.
In the days when families kept together, the right of the
widower or widow to remain at the fireside may have borne
a somewhat indefinite character .... By way of 'free bench'
the surviving spouse now has the enjoyment of onehalf
of the land until death or second marriage, whether there
has ever been a child of the marriage or no." 2 Frederick
Pollock & Frederic W. Maitland, The History of English Law
Before the Time of Edward 1419 (2d ed. 1899).
free-bordo (I7c) Hist. 1. A small strip ofland (usu. 2112
feet wide and lying just outside a fence) that the owner
of the fenced property was allowed to claim and use.
2. The right ofclaiming that quantity of land. Also
spelled freebord; free bord; freeboard. Also termed
francbordus.
free carrier. A mercantile-contract term allocating the
rights and duties of the buyer and the seller ofgoods
with respect to delivery, payment, and risk Ofl088,
whereby the seller must clear the goods for export and
deliver them to the buyer's chosen carrier at a named
place. The seller's delivery is complete (and the risk
ofloss passes to the buyer) when the goods are loaded
on the collecting vehicle or otherwise placed at the car
rier's disposal. The buyer is responsible for all costs of
carriage. There are no restrictions on the buyer's choice
ofcarrier. -Abbr. FCA.
free chapel. Hist. Eccles. law. A church founded by the
Crown (or by a person under royal grant) and not
subject to the bishop's jurisdiction.
735
"[T]hose onely are Free-chappels. which are of the King's
Foundation, and by him exempted from the Jurisdiction of
the Ordinary; but the King may licence a Subject to found
such a Chappel. and by his Charter exempt it from the
Ordinaries Visitation also .... [lIt is called free. in respect
of its exemption from theJurisdiction of the Diocesan ...."
Thomas Blount, Noma-Lexicon: A Law-Dictionary (1670).
free chase. See CHASE.
free city. Int'llaw. A country-like political and territo
rial entity that, although independent in principle, does
not have the full capacity to act according to general
international law but is nevertheless a subject ofinter
national law_
freedman (freed-man). (16c) Hist. An emancipated
slave.
freedom. (bef. 12c) 1. The state of being free or liberated_
2. A political right.
Freedom of Access to Clinic Entrances Act. A 1994
federal statute that provides for criminal sanctions,
private civil causes of action, and civil action by the
U.S. Attorney General against a person who uses force,
threat offorce, or physical obstruction to injure, intimi
date, or interfere with a provider or patient ofreproduc
tive services or who damages a reproductive-services
facility. Abbr. FACE. [Cases: Abortion and Birth
Control C=.128.]
freedom of assembly. See RIGHT OF ASSEMBLY.
freedom of association. (1889) The right to join with
others in a common undertaking that would be lawful
ifpursued individually . This right is protected by the
First Amendment to the U.S. Constitution. The gov
ernment may not prohibit outsiders from joining an
association, but the insiders do not necessarily have a
right to exclude others. Cf. RIGHT OF ASSEMBLY. [Cases:
Constitutional Law (;=-1440-1454.]
freedom ofexpressive association. The constitutional
right of an individual to associate with others, without
undue government interference, for the purpose of
engaging in activities protected by the First Amend
ment, such as speech, assembly, and the exercise of
religion.
freedom ofintimate association. The constitutional
right ofprivacy to form and preserve certain intimate
human relationships without intrusion by the state |
ofintimate association. The constitutional
right ofprivacy to form and preserve certain intimate
human relationships without intrusion by the state
because the relationships safeguard individual
freedom . The group relationships protected by the
right to freedom of intimate association are familial
in nature and are characterized by deep attachments,
a high degree ofcommitment, and the sharing ofdis
tinctly personal aspects of Hfe. The exclusion ofothers
is an essential characteristic of these relationships.
freedom ofchoice. (1817) 1. The liberty embodied in the
exercise ofone's rights. 2. The parents' opportunity to
select a school for their child in a unitary, integrated
school system that is devoid of de jure segregation.
3. The liberty to exercise one's right of privacy, esp.
the right to have an abortion. Also termed right to
choose; choice. [Cases: Abortion and Birth Control
102.] freedom of the city
freedom of contract. (1879) The doctrine that people
have the right to bind themselves legally; a judicial
concept that contracts are based on mutual agreement
and free choice, and thus should not be hampered by
external control such as governmental interference .
This is the principle that people are able to fashion their
relations by private agreements, esp. as opposed to the
aSSigned roles ofthe feudal system. As Maine famously
said, "[T]he movement of progressive societies has been
a movement from Status to Contract." Henry Sumner
Maine, Ancient Law 165 (1864). -Also termed liberty
ofcontract; autonomy ofthe parties. [Cases: Constitu
tional Law Cr-'-;) 1118.]
"Like most shibboleths, that of 'freedom of contract' rarely.
ifever, received the close examination which its importance
deserved. and even today it is by no means easy to say
what exactly the nineteenth-century judges meant when
they used this phrase. At least it may be said that the idea
of freedom of contract embraced two closely connected,
but none the less distinct, concepts. In the first place it
indicated that contracts were based on mutual agreement,
while in the second place it emphasized that the creation of
a contract was the result of a free choice unhampered by
external control such as government or legislative interfer
ence." p.s. Atiyah, An Introduction to the Law of Contract
5 (3d ed. 1981).
freedom of expression. (1877) The freedom of speech,
press, assembly, or religion as guaranteed by the First
Amendment; the prohibition of governmental inter
ference with those freedoms. Cf. FREEDOM OF SPEECH.
[Cases: Constitutional 1290-1428,1430,1490
2304.]
Freedom of Information Act. 1he federal statute that
establishes gUidelines for public disclosure of docu
ments and materials created and held by federal
agencies. 5 USCA 552. The basic purpose of the
statute, or of a state statute modeled after it, is to give
the public access to official information so that the
public will be better informed and the government will
be more accountable for its actions. Abbr. FOIA. See
REVERSE FOlA SUIT. [Cases: Records (:::::>50-68.]
freedom ofintimate association. See FREEDOM OF ASSO
CIATION.
freedom ofpetition. See RIGHT TO PETITION.
freedom of religion. (l6c) The right to adhere to any
form of religion or none, to practice or abstain from
practicing religious beliefs, and to be free from govern
mental interference with or promotion of religion, as
guaranteed by the First Amendment and Article VI,
3 ofthe U.S. Constitution. [Cases: Constitutional Law
(;=-1290-1428.]
freedom of speech. (17c) The right to express one's
thoughts and opinions without governmental restric
tion, as guaranteed by the First Amendment. -Also
termed liberty ofspeech. Cf. FREEDOM OF EXPRESSION.
[Cases: Constitutional Law C=1490-2304.]
Freedom of Speech Clause. See SPEECH CLAUSE.
freedom of the city. Hist. An immunity or privilege
from some burden, esp. from county jurisdiction and
736 freedom of the press
its privilege ofmunicipal taxation and self-government,
held under a royal charter.
freedom of the press. (l7c) The right to print and
publish materials without governmental interven
tion, as guaranteed by the First Amendment. -Also
termed liberty ofthe press. [Cases: Constitutional Law
~2070-2081.]
"'Freedom of the press' has less significance than meets
the eye. It is true, of course, that the First Amendment
specifically guarantees freedom of the press as well as
free speech, and the media often ascribe the freedom
they enjoy to the Press Clause. Even the Supreme Court
occasionally emits rhetoric that implies as much. But as
a matter of positive law, the Press Clause actually plays a
rather minor role in protecting the freedom of the press.
Most of the freedoms the press receives from the First
Amendment are no different from the freedoms everyone
enjoys under the Speech Clause. The press is protected
from most government censorship, libel judgments, and
prior restraints not because it is the press but because
the Speech Clause protects all of us from those threats."
David A. Anderson, Freedom of the Press, 80 Texas L. Rev.
429, 430 (2002).
freedom ofthe seas. Int'llaw. The principle that the seas
beyond territorial waters are not subject to any coun
try's control. Ships on the high seas are subject only
to the jurisdiction of the country whose flag they fly,
except in cases of piracy, hijacking, hot pursuit from
territorial waters, slave trading, and certain rights of
approach by warships. -Also termed mare liberum.
[Cases: International Law ~7.]
freedom-to-create statute. Patents. A law restricting
an employer's ability to require employees to assign to
the employer all rights to their inventions, even those
independently developed. [Cases: Labor and Employ
ment~309.]
freedom-to-operate search. See INFRINGEMENT
SEARCH.
free election. See ELECTION (3).
free enterprise. (1890) A private and consensual system
of production and distribution, usu. conducted for a
profit in a competitive environment that is relatively
free ofgovernmental interference. See CAPITALISM.
free entry, egress, and regress (ee-gres I ree-gres). Hist.
A person's right to go on land as often as reasonably
necessary. A tenant could go on land to gather crops
still growing after the tenancy expired.
Free Exercise Clause. (1950) The constitutional provi
sion (U.S. Const. amend. 1) prohibiting the govern
ment from interfering in people's religious practices
or forms of worship. -Also termed Exercise Clause.
Cf. ESTABLISHMENT CLAUSE. [Cases: Constitutional
Law~1302.1
free fishery. See FISHERY (1).
free-gas clause. Oil & gas. A provision in an oil-and-gas
lease entitling the lessor or the surface owner to use gas
produced from the leased property without charge .
Used commonly in colder states, free-gas clauses usu.
limit how the gas may be used (e.g., domestic heating
and light), how much gas may be used (e.g., not more than 300 MCF per year), or both. [Cases: Mines and
Minerals ~79.5.]
freehold, n. (15c) 1. An estate in land held in fee simple,
in fee tail, or for term oflife; any real-property interest
that is or may become possessory . At common law,
these estates were all created by enfeoffment with livery
ofseisin. [Cases: Estates in Property~4-7, 12.]2. The
tenure by which such an estate is held. -Also termed
freehold estate; estate in freehold; freehold interest;
franktenement; liberum tenementum. Cf. LEASEHOLD.
determinable freehold. See determinable estate under
ESTATE (4).
movable freehold. (18c) The land a seashore owner
acquires or loses as water recedes or approaches.
[Cases: Navigable Waters ~44.]
perpetual freehold. An estate given to a grantee for life,
and then successively to the grantee's heirs for life .
The effect of this type of freehold was to keep land
within a family in perpetuity, much like a fee tail.
"It took the form of a grant 'to A for life, remainder to A's
son for life, remainder to that son's son for life', and so on
ad infinitum. Such a limitation, ifvalid, would have been an
effective substitute for the fee tail. The courts, however, set
their face against this 'perpetual freehold' (as it was some
times termed), and in Lovelace v. Lovelace (1 S8S) it was
held that remainders which did not vest before the deter
mination of the first life estate would fail ex post facto.
Subsequently a number of other, not entirely convincing,
reasons were found for invalidating perpetual freeholds,
ultimately culminating in what is sometimes termed the
'old' rule against perpetuities, but, more commonly, the
rule in Whitby v. Mitchell, taking its name from the case
which marked its emphatic reiteration." Peter Butt, Land
Law 136 (2d ed. 1988).
freeholder. (15c) Hist. One who possesses a freehold.
freeholder's court baron. See COURT BARON.
freehold estate. See FREEHOLD.
freehold interest. See FREEHOLD.
freehold land society. (usu. pl.) Hist. A society in
England created to enable mechanics, artisans, and
other workers to buy at the lowest possible price
freehold land with a sufficient yearly value to entitle
the owner to the right to vote in the county in which
the land was located.
free ice. Hist. Ice in navigable streams that does not
belong to the adjacent riparian owner or to another
with the right to appropriate it, but that belongs to the
person who first appropriates it.
free law. Hist. The civil rights enjoyed by a freeman
(as opposed to a serf) . Free law could be forfeited if
the freeman was convicted of treason or an infamous
crime.
freeman. (bef. 12c) 1. A person who possesses and enjoys
all the civil and political rights belonging to the people
under a free government. 2. A person who is not a slave.
3. Hist. A member ofa municipal corporation (a city or
borough) who possesses full civic rights, esp. the right
to vote. 4. Hist. A freeholder. Cf. VILLEIN. 5. Hist. An
737 freezeout
allodial landowner. Cf. VASSAL. -Also written free
man.
Freeman-Walter-Abele test. Patents. An outmoded
two-step judicial test for determining whether a claimed
invention is an unpatentable mathematical algorithm.
The test looks first to whether an algorithm is explicit
or inherent in the claim, and second to whether a patent
would wholly preempt others from using the algorithm.
In re Freeman, 573 F.2d 1237 (CCPA 1978); In re Walter,
618 F.2d 758 (CCPA 1980); In re Abele, 684 F.2d 902
(CCPA 1982). The Federal Circuit has said the test has
"little, ifany, applicability" after State St. Bank & Trust
Co. v. Signature Fin. Group, 149 F.3d 1368 (Fed. Cir.
1998). [Cases: Patents C:":'6.]
free market. See open market under MARKET.
free ofall average. Maritime law. Insurance that covers
a total loss only. Abbr. FAA.
free on board. (ca. 1924) A mercantile-contract term
allocating the rights and duties of the buyer and the
seller ofgoods with respect to delivery, payment, and
risk oflos$, whereby the seller must clear the goods for
export, and the buyer must arrange for transportation .
The seller's delivery is complete (and the risk of loss
passes to the buyer) when the goods pass the transport
er's rail. The buyer is responsible for all costs ofcarriage.
DCC 2.319. -Abbr. FOB. Cf. FREE ALONGSIDE SHIP;
DELIVERED EX SHIP. [Cases: Sales C='77(2).]
"In an F.O.B. ('free on board') contract, the goods must be
delivered on board by the seller, free of expense to the
purchaser, and they are not at the latter's risk until actually
delivered on board, when the property in them passes to
him. The seller must also give the buyer sufficient notice
to enable him to insure against loss during the sea transit.
The buyer, on the other hand, must name a ship or autho
rize the seller to select one. The seller cannot sue for the
price until the goods are loaded, and if his inability to load
was caused by the buyer's failure to name an effective ship,
his only remedy lies in damages. Similarly, F.O.R. means
'free on rail.''' 2 E.w. Chance, Principles of Mercantile Law
86-87 (P.w. French ed., 10th ed. 1951).
FOB destination. A mercantile term denoting that the
seller is required to pay the freight charges as far as
the buyer's named destination.
FOB shipping. A mercantile term denoting that the
seller is required to bear the risk ofplacing the goods
on a carrier. [Cases: Sales C::> 201 (4).]
free port. See PORT.
free ride. (19c) A benefit obtained without paying a fair
price. For example, a competitor who used aerial pho
tographs ofa plant-construction site to discover secret
manufacturing techniques was judicially criticized
for getting a free ride, in contrast to others who might
spend time and effort legally reverse-engineering the
same techniques |
for getting a free ride, in contrast to others who might
spend time and effort legally reverse-engineering the
same techniques.
free rider. One who obtains an economic benefit at
another's expense without contributing to it. -Also
written free rider.
free seas. See SEA.
free socage. See SOCAGE. Freestone rider. See PUGH CLAUSE.
free trade, n. (17c) The open and unrestricted import
and export of goods without barriers, such as quotas
or tariffs, other than those charged only as a revenue
source, as opposed to those deSigned to protect domestic
businesses. Cf. protective tariff under TARIFF (2).
free-trade zone. A duty-free area within a country to
promote commerce, esp. transshipment and process
ing, without entering into the country's market. Also
termedforeign trade zone;jree port.
freeware. (ca. 1983) Software, esp. open-source code, that
is made generally available with express or implicit per
mission for anyone to use, copy, modify, and distribute
for any purpose, including financial gain . The term
"free" refers to usage rights rather than price - a dis
tinction important in two respects. First, a user may
purchase the initial copy offreeware. Second, software
available at no cost may not include permission for
the software's user to copy, modify, or give away the
software. -Also termed free software. Cf. PROPRIE
TARY SOFTWARE; SEMI-FREE SOFTWARE; SHAREWARE.
free warren. See WARREN.
freeze, n. (1942) 1. A period when the government
restricts or immobilizes certain commercial activity.
creditJreeze. (1922)A period when the government
restricts bank-lending.
wage-and-priceJreeze. (1943) A period when the gov
ernment forbids the increase ofwages and prices.
2. A recapitalization ofa closed corporation so that the
value of its existing capital is concentrated primarily
in preferred stock rather than in common stock. By
freeZing capital, the owner can transfer the common
stock to heirs without taxation while continuing to
enjoy preferred-stock income during the owner's
lifetime, while the common stock grows,
freeze, vb. 1. To cause to become fixed and unable to
increase <to freeze interest rates> <to freeze prices>.
2. To make immobile by government mandate or
banking action <to freeze assets>. 3. To cease physical
movement, esp. when ordered by a law enforcement
officer <the police officer shouted at the suspect to
freeze>.
freezee, n. A person or entity subjected to a freeze-out.
freezeout, n. Corporations. A transaction in which a
shareholder or group ofshareholders obtains the entire
common-equity interest in a company while the other
shareholders receive cash, debt, or preferred stock in
exchange for their common-equity shares. -Also
termed going-private transaction. Cf. SQUEEZE-OUT.
[Cases: Corporations (;=: 182.3,584; Securities Regu
lation (;=:60.21.]
"A 'freeze-out' is usually accomplished by the merger of a
corporation into its parent corporation, where the parent
corporation owns a large percentage of the shares of the
subsidiary, and the minority shareholders are entitled to
minimal distributions of cash or securities. A 'freeze-out'
may also be used to connote the situation where so large
a number of equity shares are issued to the acquiring
freeze out 738
corporation that the public shareholders own less than 10
percent of the outstanding equity securities and, therefore,
have no control over the corporation or any of its decisions.
In such event, a short-form merger could later be used
to eliminate the minority shareholders." 69A Am. Jur. 2d
Securities Regulation -State 245, at 971 n.60 (1993).
parent-subsidiary freezeout. A transaction in
which a parent company uses its majority ownership
in a subsidiary to acquire the minority shareholders'
interest.
pure freezeout. A transaction in which company
insiders or employees acquire all the public shares of
the company, often with the help oflenders. Also
termed management buyout. See management buyout
under BUYOUT.
second-step freezeout. A freezeout that takes place
as the final phase of a two-step takeover, after the
initial phase in which a majority interest is acquired
by the purchase ofshares in a tender offer, on the open
market, from the issuer, from a control group, or from
an issuer-control-group combination.
freeze out, vb.!. To subject one to a freeze-out. 2. To
exclude a business competitor <freezing out the com
petition>.
freeze-out merger. See cash merger under MERGER.
freight. (I5c) 1. Goods transported by water, land, or
air; CARGO. 2. The compensation paid to a carrier for
transporting goods. [Cases: Carriers ~189; Shipping
~144.]
"Freight, in the common acceptation of the term, means
the price for the actual transportation of goods by sea from
one place to another; but, in its more extensive sense, it
is applied to all rewards or compensation paid for the use
of ships, including the transportation of passengers." 3
James Kent, Commentaries on American Law *219 (George
Comstock ed., 11th ed. 1866).
dead freight. The amount paid by a shipper to a ship
owner for the ship's unused cargo space. [Cases:
Shipping
freight absorption. See ABSORPTION (5).
freight forwarder. Maritime law. A person or company
whose business is to receive and ship goods for others.
- A freight forwarder may be an agent of the cargo's
owner or ofthe carrier, or may be an independent con
tractor acting as a principal and assuming the carrier's
responsibility for delivering the cargo. -Also termed
third-party logistical service provider;forwarding agent.
[Cases: Carriers Shipping ~112.J
freighting voyage. See VOYAGE.
freight rate. See RATE.
frenchman. Hist. (bef. 12c) A stranger; a foreigner. _ In
early English law, this term was applied to all foreign
ers, even those not from France.
F reorganization. See REORGANIZATION (2).
fresh, adj. (l3c) Recent; not stale; characterized by
newness without any material interval.
fresh complaint. (1853) A reasonably prompt lodging of
a grievance; esp., a victim's prompt report of a sexual assault to someone trustworthy. [Cases: Criminal Law
~366;Rape G=48(1)-49, 49.2.]
fresh-complaint rule. The theory that a sexual-assault
victim's credibility is bolstered ifthe victim reports the
assault soon after it occurs. _ Most courts no longer rec
ognize this theory. [Cases: Rape ~48(1)-49, 49.2.]
fresh disseisin. See DISSEISIN.
fresh fine. See FINE (5).
fresh force. Hist. Force, such as disseisin or deforcement,
newly done. -This term refers to force used in a town,
and for which a remedy (the Assize of Fresh Force)
existed. See assize offresh force under ASSIZE (8).
fresh pursuit. (17c) 1. The right ofa police officer to make
a warrantless search of a fleeing suspect or to cross
jurisdictional lines to arrest a fleeing suspect. [Cases:
Arrest 66(3); Automobiles C=)349(12).] 2.
The right of a person to use reasonable force to retake
property that has just been taken. -Also termed hot
pursuit.
fresh start. (1857) Bankruptcy. The favorable financial
status obtained by a debtor who receives a release from
personal liability on prepetition debts or who reorga
nizes debt obligations through the confirmation and
completion ofa bankruptcy plan. [Cases: Bankruptcy
Cr'"".:)2363.1.]
Friday market. See MARKET.
friendly amendment. See AMENDMENT (3).
friendly fire. (1976) 1. A fire burning where it is intended
to burn, yet capable of causing unintended damage. 2.
Military or police gunfire that injures one's own side.
friendly-parent law. A statute that requires or allows a
judge to consider as a factor in awarding custody the
extent to which one parent encourages or thwarts the
child's relationship with the other parent.
friendly-parent principle. Family law. The theory that
if one parent is more likely to support the child's rela
tionship with the other parent after a divorce is granted,
then that more supportive parent should be awarded
custody. -This theory has been criticized as fundamen
tally flawed because (1) a court may not consider the
legitimate fears and concerns that motivate a parent's
"unfriendly" behavior, and (2) the theory's simplic
ity discourages a parent from revealing anything
negative about the other parent to the child, even if
relevant to the child's safety, for fear of being viewed
as too hostile. -Also termed friendly-parent doctrine;
friendly-parent paradigm.
friendly society. (18c) In Britain, a voluntary association,
supported by subSCriptions or contributions, for the
purpose ofprOViding financial relief to ill members and
to their widows and children upon death . Friendly
societies are regulated by statute. See benevolent asso
ciation under ASSOCIATION. Cf. FRATERNAL BENEFIT
ASSOCIATION.
friendly subpoena. See SUBPOENA.
friendly suit. (ISc) A lawsuit in which all the parties have
agreed beforehand to allow a court to resolve the issues.
_ Friendly suits are often filed by settling parties who
wish to have a judgment entered.
friendly suitor. See WHITE KNIGHT.
friendly takeover. See TAKEOVER.
friend ofthecourt. (1816) 1. AMICUS CURIAE. 2. In some
jurisdictions, an official who investigates and advises
the court in domestic-relations cases involving minors.
-The friend of the court may also help enforce court
orders in those cases. [Cases: Child Custody C::::'417,
421,613,616; Infants (;::::J208.]
friend-of-the-court brief. See amicus brief under BRIEF.
fringe benefit. See BENEFIT.
frisk, n. (l8c) A pat-down search to discover a concealed
weapon. Also termed pat-down. See STOP AND FRISK.
Cf. SEARCH (1). [Cases: Arrest C::::'63.5(8); Automobiles
(;::::c349.5(lO); Searches and Seizures C~70.1
frivolous, adj. (ISc) Lacking a legal basis or legal merit;
not serious; not reasonably purposeful <a frivolous
claim>.
frivolous appeal. See APPEAL.
frivolous claim. See CLAIM (4).
frivolous defense. See DEFENSE (1).
frivolous suit. See SUIT.
FRM. Seefixed-rate mortgage under MORTGAGE.
frolic (frol-ik), n. Torts. An employee's significant devia
tion from the employer's business for personal reasons.
- A frolic is outside the scope ofemployment, and thus
the employer is not vicariously liable for the employee's
actions. Cf. DETOUR. [Cases: Labor and Employment
(;::::c3061(1).)
front, n. (14c) 1. The side or part of a building or lot
that is open to view, that is the principal entrance, or
that faces out to the open (as to a lake or ocean); the
foremost part of something <the property's front was
its most valuable attribute>. 2. A person or group that
serves to conceal the true identity or activity of the
person or group in control <the political party was a
front for the terrorist group>. 3. A political association
similar to a party <popular front>.
frontage (fr:m-tij). (17c) 1. The part ofland abutting a
street or highway or lying between a building's front
and a street or highway <the property's value was so low
because ofits narrow frontage>. 2. The linear distance
ofa frontage <the lot's frontage was 90 feet>.
frontage assessment. See ASSESSMENT.
frontager (fr;m-tij-dr), n. (17c) A person owning or occu
pying land that abuts a highway. river, seashore, or the
like.
front-end load. See loan fund under MUTUAL FUND.
front-end money. See SEED MONEY. front foot. (1863) A measurement used to calculate a
frontage assessment. Also termed abutting foot.
[Cases: Municipal Corporations C::::'469.J
front-foot rule. (1872) The principle that an improve
ment cost is to be apportioned among several proper
ties in proportion to their frontage, without regard to
the benefits conferred on each property. -Also termed
front-foot plan. [Cases: Municipal Corporations C=:'
469.J
frontier. For trade purposes, an international boundary.
front money. See SEED MONEY.
front-page citation. See CITATION (4).
front-page drawing. See DRAWING.
frontpay. Labor law. Court-awarded compensation for
the post-judgment effects of continuing employment
discrimination. Cf. BACKPAY. [Cases: Civil Rights
1571.]
front-running, 11. Securities. A broker's or analyst's use
ofnonpublic information to acquire securities or enter
into options or futures contracts for his or her own
benefit, knowing that when the information becomes
public, the price ofthe securities will change in a pre
dictable manner. _ 'Ihis practice is illegal. Front-run
ning can occur in many ways. For example, a broker or
analyst who |
. _ 'Ihis practice is illegal. Front-run
ning can occur in many ways. For example, a broker or
analyst who works for a brokerage firm may buy shares
in a company that the firm is about to recommend as
a strong buy or in which the firm is planning to buy a
large block ofshares. See INSIDER TRADING.
front wages. See WAGE.
frottage. (ca. 1935) Sexual stimulation by rubbing the
genitals against another person. -This may be accom
plished without removing clothing. When a child is
involved, it is a form ofsexual abuse.
frozen account. See blocked account under ACCOL"NT.
frozen asset. See ASSET.
frozen deposit. See DEPOSIT (2;).
FRS. abbr. FEDERAL RESERVE SYSTEM.
FRTIB. abbr. FEDERAL RETIREMENT THRIFT INVEST
MENTBOARD.
fructuarius (fr<'lk-choo-air-ee-ds). [Latin "(one) entitled
to fruits"]!. Roman &civil law. One having the usufruct
ofa thing (as ofland and animals); a usufructuary. See
USUFRUCTUARY. 2. Hist. A lessee. PLfructuarii.
fructus (fr;Jk-tds). [Latin "fruits") 1. Roman & civil law.
The natural produce ofland and animals; the profit or
increase from land and animals. -The owner of the
land or animals acquired ownership by separatio, the
separation ofthe fruit from the parent body. A bona fide
possessor or an emphyteuta also acquired ownership
by separatio, which allowed a nonowner to claim title
from a thief. But in Justinian's law, a bona fide possessor
had to account to a successful claimant for ownership
for the principal thing and any unconsumed fruits. A
tenant or usufructuary acquired title only by perceptio,
and cannot claim title from a thief. See PERCEPTION. Cf.
FRUCTUS CIVILES. 2. USUFRUCT. PLfructus.
740 fructus civiles
fructus civiles (frak-tils sil-vl-Ieez). [Latin "civil fruits"]
Roman & civil law. Income (such as rent or interest)
that one receives from another for the use or enjoy
ment ofa thing, esp. real property or loaned money.
In Roman law,fructus civiles included both minerals
and the earnings ofslaves.
fructusfundi (frak-tils fan-dI). [Latin "land fruits"] Ihe
fruits or produce ofland.
fructus industriales (frak-tas in-das-tree-ay-Ieez). [Latin
"industrial fruits"] See EMBLEMENTS (1).
fructus legis (frak-tils lee-jis). [Latin "fruits ofthe law"]
The proceeds ofjudgment or execution. [Cases: Execu
tion C=>322.]
fructus naturales (frak-tils nach-a-ray-leez). [Latin
"natural fruits"] The natural produce ofland or plants
and the offspring of animals. Fructus naturales are
considered part ofthe real property.
fructus pecudum (frak-tas pek-ya-dam). [Latin "fruits of
the herd"] The produce or increase offlocks or herds.
fructus pendentes (frak-tds pen-den-teez). [Latin
"hanging fruits"] Fruits not yet severed or gathered;
fruits united with that which produces them.
fructus percepti (frak-tas par-sep-tI). [Latin "gathered
fruits"] Roman & civil law. Fruits that have been
gathered.
fructus rei alienae (frak-tas ree-I ay-lee-ee-nee or al-ee-).
[Latin "fruits of another's property"] The fruits of
another's property; fruits taken from another's estate.
fructus separati (frak-tas sep-a-ray-tr). [Latin "sepa
rated fruits"] Roman & civil law. The produce ofa thing
after being separated from it, and so becoming in law
"fruits."
fructus stantes (frak-tas stan-teez). [Latin "standing
fruits"] Fruits that have not yet been severed from the
stalk or stem.
fructuum perceptio (frak-choo-;ml pdr-sep-shee-oh).
[Latin] Roman & civil law. The rightful taking of the
produce of property by a person who does not own
the property.
fruges (froo-jeez). [Latin "fruits" or "crops"] Roman &
civil law. Edible produce or crops; esculents.
frugi aut bonaefamae (froo-jI awt boh-nee fay-mee).
[Latin) Hist. Frugal or ofgood reputation.
fruit. (14c) 1. The produce or product ofsomething (as of
land or property). 2. Civil law. Income or goods derived
or produced from property without a diminution ofthe
property's inherent value.
civil fruit. Civil law. Revenue derived from a thing by
operation oflaw or by reason ofa juridical act, such
as lease or interest payments, or certain corporate
distributions. La. Civ. Code art. 551. See FRUCTUS
CIVILES.
naturalfruit. Civil law. A product of the land or of
animals. Examples are crops and eggs. La. Civ.
Code art. 2317. See FRUCTUS NATURALES. 3. Something (such as evidence) obtained during an
activity or operation <the fruit ofthe officer's search>.
See FRUIT-OF-THE-POISONOUS-TREE DOCTRINE.
fruit-and-the-tree doctrine. (1979) Tax. The rule that
an individual who earns income cannot assign that
income to another person to avoid taxation.
fruit-of-the-poisonous-tree doctrine. (1948) Criminal
procedure. The rule that evidence derived from an
illegal search, arrest, or interrogation is inadmissible
because the evidence (the "fruit") was tainted by the
illegality (the "poisonous tree") . Under this doctrine,
for example, a murder weapon is inadmissible if the
map showing its location and used to find it was seized
during an illegal search. Also termedfrUits doctrine.
See EXCLUSIONARY RULE; ATTENUATION DOCTRINE;
INDEPENDENT-SOURCE RULE; INEVITABLE-DISCOVERY
RULE. [Cases: Criminal Law ~~394.l(3).]
fruits of a crime. The proceeds acquired through
criminal acts. [Cases: Criminal Law ~'='1221.]
frustra (fras-tra). [Latin] Hist. In vain; to no purpose.
frustration, n. (16c) 1. The prevention or hindering of
the attainment of a goal, such as contractual perfor
mance.
commercial frustration. (1918) An excuse for a party's
nonperformance because of some unforeseeable
and uncontrollable circumstance. -Also termed
economic frustration. [Cases: Contracts C=>309(1).]
self-induced frustration. (1926) A breach ofcontract
caused by one party's action that prevents the per
formance.1he phrase is something ofa misnomer,
since self-induced frustration is not really a type of
frustration at all but is instead a breach ofcontract.
temporary frustration. (1950) An occurrence that
prevents performance and legally suspends the duty
to perform for the duration of the event. If the
burden or circumstance is substantially different after
the event, then the duty may be discharged.
2. Contracts. The doctrine that ifa party's principal
purpose is substantially frustrated by unanticipated
changed circumstances, that party's duties are dis
charged and the contract is considered terminated.
Also termedfrustration ofpurpose. Cf. IMPOSSIBILITY
(4); IMPRACTICABILITY; MISTAKE. [Cases; Contracts
C=>309.]- frustrate, vb.
frustrum terrae (fras-tram ter-ee). [Latin] Hist. A piece
of land. This usu. referred to a fragment of land
remaining after a survey.
Frye test. The defunct federal common-law rule of
evidence on the admissibility of scientific evidence.
It required that the tests or procedures must have
gained general acceptance in their particular field.
Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). In
Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579,
113 S.Ct. 2786 (1993), the Supreme Court held that
scientific evidence must meet the requirements of
the Federal Rules of Evidence, not the Frye test, to be
741 full blood
admissible. See DAUBERT TEST. [Cases: Criminal Law
C::=>388.1-388.4; Evidence C::=>555.]
FSA. abbr. FARM SERVICE AGENCY.
FSI. abbr. FOREIGN SERVICE INSTITUTE.
FSIA. abbr. FOREIGN SOVEREIGN IMMUNITIES ACT.
FSIS. abbr. FOOD SAFETY AND INSPECTION SERVICE.
FSLIC. abbr. FEDERAL SAVINGS AND LOAN INSURANCE
CORPORATION.
FSS. abbr. FEDERAL SUPPLY SERVICE.
FST. See field sobriety test under SOBRIETY TEST.
F.Supp. abbr. Federal Supplement, a series of reported
decisions of the federal district courts (from 1932 to
1998), the u.S. Court ofClaims (1932 to 1960), and the
u.S. Customs Court (from 1949 to 1998, but renamed
the Court of International Trade in 1980) . It is the
first ofthe Federal Supplement series.
F.Supp.2d. abbr. The second series ofthe Federal Supple
ment, which includes decisions offederal district courts
and the Court ofInternational Trade from 1997 to the
present. Some of the F.Supp. volumes contain cases
from 1998 and some ofthe F.Supp.2d volumes contain
cases decided in 1997.
FTA. abbr. FEDERAL TRANSIT ADMINISTRATION.
FTC. abbr. FEDERAL TRADE COMMISSION.
FTCA. abbr. FEDERAL TORT CLAIMS ACT.
FTDA. abbr. FEDERAL TRADEMARK DILUTION ACT.
FTO search. See INFRINGEMENT SEARCH.
FTP. See FILE-TRANSFER PROTOCOL.
FTS. abbr. FEDERAL TECHNOLOGY SERVICE.
FTT. abbr. FAILURE TO THRIVE.
fuer (fyoo-Jr). [Law French "to flee"] Flight from the
law. -Also termedfugere.
fuer infait (fyoo-Jr in fay). [Law French "flight in fact"]
Actual flight from the law. -Also termed fugere in
facta.
fuer in ley (fyoo-Jr in lay). [Law French "flight in law"]
Legal flight from the law. Ifthe accused failed to
appear, the law treated that failure as flight. -Also
termedfugere in lege.
fuero (foo-wer-oh). Spanish law. 1. A forum; court. 2.
The territory in which a court has the power to act. 3.
A privilege enjoyed by some but not others. 4. A custom
having the force oflaw. 5. Hist. A collection of local,
usu. customary, laws.
Fuero Juzgo (hooz-goh). Hist. A 7th-century Visig
othic code that was revised and incorporated into
the laws of 13th-century Spain . The code contains
the earliest known laws of community property. In
the 18th century, much ofthe Fuero Juzgo was incor
porated into the Code Napoleon. In the 19th century,
vestiges ofthe Fuero Juzgo were incorporated into the
Spanish Civil Code.
Fuero Real (ray-ahl). Hist. A collection ofthe ancient
customs of Castile, collected by order of Alfonse X in 1255 to produce a uniform legal code, much of
which was incorporated into localfueros . Louisi
ana's system of acquets and gains was adapted from
the Fuero Real.
fugam fecit (fyoo-gJm fee-sit). [Law Latin] Hist. He fled;
he has made flight. When a jury made this finding in
a felony or treason trial, the defendant's property was
subject to forfeiture.
fugere. See FUER.
fugere in facta. See fuer in fait under FUER.
fugere in lege. See fuer in ley under FUER.
fugitation (fyoo-jJ-tay-shJn). (18c) Hist. A sentence
or declaration of fugitive status that was pronounced
against an accused person for failing to answer a citation
and appear. The effect was that the person forfeited
his or her goods and chattels. -fugitate, vb.
fugitive. (14c) 1. A person who flees or escapes; a refugee.
2. A criminal suspect or a witness in a criminal case
who flees, evades, or escapes arrest, prosecution,
imprisonment, service ofprocess, or the giving oftes
timony, esp. by fleeing the jurisdiction or by hiding. See
18 USCA 1073. -Also termed (in sense 2) fugitive
from justice.
fugitive-disentitlement doctrine. An equitable rule
that allows a trial or appellate court to limit a fugitive's
access to civil and criminal courts in the United States.
[Cases: Action C::=> 13; Criminal Law C::=> 1026.10(7).]
fugitive-dismissal rule. The principle that an appel
late court may dismiss a criminal defendant's appeal if
the defendant is a fugitive. [Cases: Criminal Law C::=>
1131(5).]
Fugitive Felon Act. A federal statute |
Cases: Criminal Law C::=>
1131(5).]
Fugitive Felon Act. A federal statute that makes it a
felony to flee across state lines to avoid state-felony
prosecution or confinement, or to avoid giving testi
mony in a state-felony case. 18 USCA 1073. [Cases:
Escape C::=> 1.]
fugitive from justice. See FUGITIVE.
fugitive's goods. Hist. The goods that a person forfeited
as a result offleeing.
fugitive-slave laws. Hist. Federal statutes passed in 1793
and 1850 providing for the surrender and return of
slaves who had escaped and fled to a free territory or a
free state. [Cases: Slaves C::=>9.]
fugitive warrant. See WARRANT (1).
fugitivus (fyoo-jJ-tI-VJS), n. [Latin] Roman law. A
runaway slave; a fugitive.
fugue (fyoog). (16c) An abnormal state of conscious
ness in which one appears to function normally but
on recovery has no memory of what one did while in
that condition.
full adversary hearing. See adjudication hearing under
HEARING.
full age. See age ofmajority (1) under AGE.
full bench. Seefull court under COURT.
full blood. See BLOOD.
742 full cash value
full cash value. See VALUE (2).
full copy. Equity practice. A complete transcript ofa bill
or other pleading, with all indorsements and a copy of
all exhibits. [Cases: Equity C=460.]
full court. See COURT.
full cousin. See COUSIN (1).
full-covenant-and-warranty deed. See warranty deed
under DEED.
full coverage. See COVERAGE.
full-crew law. A law that regulates the number of
railroad employees required to operate a train, or
airline employees required to operate an airplane.
[Cases: Railroads (;=>230.]
full defense. See DEFENSE (1).
full disclosure. See DISCLOSURE (1).
full faith and credit. The recognition, acceptance, and
enforcement of the laws, orders, and judgments of
another jurisdiction; specif., the recognition by one
state of another state's legal decisions. [Cases: Judgment
(;=>815,828.4; States C=5(2).]
Full Faith and Credit Act. A federal statute requiring
federal courts to give a state court's judgment the same
preclusive effect as the judgment would have under
state law. 28 USCA 1738. See Migra v. Warren City
School Dist. Bd. ofEduc., 465 U.S. 75, 81,104 S.Ct. 892,
896 (1984). [Cases: Judgment
full-faith-and-credit bond. See general-obligation bond
under BOND (3).
Full Faith and Credit Clause. (1896) U.S. Const. art. IV,
1, which requires states to give effect to the acts, public
records, and judicial decisions ofother states. [Cases:
Judgment (;=>815,828.4; States (;=>5(2).]
Full Faith and Credit for Child-Support Orders Act.
A 1994 federal statute designed to facilitate interstate
child-support collection . Under the Act, the state first
issuing a child-support order maintains continuing,
exclusive jurisdiction to modify the order as long as
the child or one or both of the litigants continue to
reside there, unless all the contestants agree in writing
to change jurisdiction. An order from one state may be
registered for enforcement in another state. 28 USCA
1738B. [Cases: Child Support (;=>501(1), 506(2), 507,
508(1).]
full hearing. See HEARING.
fullied. Slang. Hist. See FULLY COMMITTED FOR TRIAL.
full indorsement. 1. See irregular indorsement under
INDORSEMENT. 2. See special indorsement under
INDORSEMENT.
full interdiction. See INTERDICTION (3).
full member. See voting member under MEMBER.
full name. See NAME.
full ownership. See perfect ownership under OWNER
SHIP.
full-paid stock. See STOCK. full pardon. See absolute pardon under PARDON.
full partner. See general partner under PARTNER.
full payout lease. Seefinance lease under LEASE.
full performance. See PERFORMANCE.
full powers. Int'llaw. An official document deSignat
ing a person to represent a country for (1) negotiat
ing, adopting, or authenticating the text ofa treaty, (2)
expressing the consent of the country to be bound by
a treaty, or (3) accomplishing any act with respect to
the treaty.
full proof. See PROOF.
full-reporting clause. 1. Insurance. An insurance-pol
icy clause that requires the insured to reveal values
and that penalizes the insured if the insured revealed
less than required in the policy application. Also
termed honesty clause. [Cases: Insurance (;=>2169.] 2.
An insurance-policy clause providing that the indem
nity will not exceed the proportion of the loss that the
last reported value bears to the actual value.
full right. (18c) The union ofgood title with actual pos
session.
full-service lease. See LEASE.
full settlement. See SETTLEMENT (2).
full value. Seefair market value under VALUE (2).
full warranty. See WARRANTY (2).
fully administered. (l7c) A plea by an executor or
administrator that he or she has completely and legally
disposed of all the assets ofthe estate and that the estate
has no remaining assets from which a new claim could
be satisfied.
fully committed for trial, adj. English law. (Of a person)
qualified to be indicted, arraigned, and tried . His
torically, a defendant went through two hearings that
were essentially minitrials to determine whether the
evidence against the defendant was sufficient to support
the charges. If the hearing magistrate decided there
was, then the defendant was fully committed for trial.
In modern usage, it means only that the defendant
has had at least two bail hearings and has not yet been
indicted. Often shortened to fully committed.
Formerly also termed (in slang) fullied.
fully diluted earnings per share. See EARNINGS PER
SHARE.
fully funded, adj. 1. Having sufficient financial resources
to meet current payments, even upon bankruptcy <the
company's pension plan was fully funded>. 2. Having
completely satisfied a funding requirement; paid <the
construction loan was fully funded>. -Also termed
funded.
fully managed fund. See MUTUAL FUND.
fully met. See ANTICIPATED.
fully paid face-amount certificate. Seeface-amount cer
tificate (2) under CERTIFICATE.
function, n. (I6c) 1. Activity that is appropriate to a par
ticular business or profession <a court's function is to
743
administer justice>. 2. Office; duty; the occupation of
an office <presidential function>. [Cases: Officers and
Public Employees 110.]
functional analog. See Ar;"ALOG.
functional depreciation. See DEPRECIATIO~.
functional discount. See DISCOUNT.
functional disease. See DISEASE.
functional feature. Trademarks. A design element that
is either physically necessary to construct an article or
commercially necessary to manufacture and sell it; a
product's attribute that is essential to its use, necessary
for its proper and successful operation, and utilitarian
rather than ornamental in every detail. - A functional
feature is not eligible for trademark protection. [Cases:
Trademarks (;::::: 1064, 1065(3).)
functionality. (19c) Trademarks. The quality of having
a shape, configuration, deSign, or color that is so
superior to available alternatives that giving the first
user exclusive trademark would hinder competi
tion. [Cases: Trademarks 1064, 1065(3).)
aesthetic functionality. A doctrine that denies pro
tection to the design of a product or its container
when the design is necessary to enable the product
to function as intended.
functional limitation. Patents. In a patent application,
the definition of an invention by what it does rather
than what it is. - A functional limitation is not inher
ently invalid, but it is examined closely because it tends
to be too broad, claiming every possible way ofdoing
the same thing. MPEP 2173.05(g). [Cases: Patents C:=>
101(3).]
functional obsolescence. See OBSOLESCENCE.
functional rejection. See RErECTION.
functionary. A public officer or employee.
functus officio (f:mgk-tds <}-fish-ee-oh). [Latin "having
performed his or her office"] (l9c) (Of an officer or
official body) without further authority or legal com
petence because the duties and functions ofthe original
commission have been fully accomplished. _ The term
is sometimes abbreviated to functus <the court was
functus>. [Cases: Officers and Public Employees (;=.
44.]
fund, n. 07c) 1. A sum of money or other liquid assets
established for a specific purpose <a fund reserved for
unanticipated expenses>.
blendedfund. A fund created by income from more
than one source, usu. from the sale ofa testator's real
and personal property.
changingfund. A fund, esp. a trust fund, that changes
its form periodically as it is invested and reinvested.
client-security fund. A fund established usu. by a state
or a state bar association to compensate persons for
losses that they suffered because of their attorneys'
misappropriation of funds or other misconduct.
[Cases: Attorney and Client fund
contingent fund. (18c) 1. A fund created by a munici
pality for expenses that will necessarily arise during
the year but that cannot be appropriately classified
under any ofthe specific purposes for which taxes are
collected. [Cases: Municipal Corporations C:=>886.J
2. A fund segregated by a business to pay unknown
costs that may arise in the future. Also termed con
tingency reserve.
executorfund. A fund established for an executor to
pay an estate's final expenses.
fund in court. (18c) 1. Contested money deposited
with the court. See INTERPLEADER. [Cases: Deposits
in Court C:=> 1.] 2. Money deposited to pay a contin
gent liability.
generalfund. (l7c) 1. A government's primary oper
ating fund; a state's assets furnishing the means for
the support ofgovernment and for defraying the leg
islature's discretionary appropriations. - A general
fund is distinguished from assets ofa special charac
ter, such as trust, escrow, and special-purpose funds.
[Cases: States <:::::? 126.] 2. A nonprofit entity's assets
that are not earmarked for a specific purpose.
general revenue fund. (1855) The fund out ofwhich
a municipality pays its ordinary and incidental
expenses. [Cases: Municipal Corporations C:=>886.]
guaranty fund. A private deposit-insurance fund,
raised primarily by assessments on banks, and used to
pay the depositors of an insolvent bank. -Guaranty
funds preceded the FDIC's federal-deposit insurance,
which began in 1933, though many funds continued
until the savings-and-Ioan crisis in the 1980s. Mas
sachusetts has a guaranty fund for uninsured deposits
(deposits above $100,000) that are not covered by fed
eral-deposit insurance. [Cases: Banks and Banking
G~:>15,504-506.]
imp rest fund (im-prest). A fund used by a business for
small, routine expenses.
joint-welfare fund. A fund that is established in collec
tive bargaining to provide health and welfare benefits
to union employees. -the fund is jointly managed
by labor and management representatives. -Also
termed Taft-Hartley fund.
paid-in fund. A reserve cash fund established by a
mutual insurance company to pay unforeseen losses.
_ The fund is in lieu of a capital stock account.
pooled-incomefund. See POOLED-INCOME FUND.
public fund. (usu. pl.) 1. The revenue or money ofa gov
ernmental body . The term includes not only coins
and paper but also bank deposits and instruments
representing investments of public money. [Cases:
Municipal Corporations <::=>880.] 2. The securities
ofa state or national government. lCases: States C:=>
122.]
revolvingfund. (1928) A fund whose moneys are con
tinually expended and then replenished, such as a
petty-cash fund.
fund 744
sinking fund. (I8c) A fund consisting of regular
deposits that are accumulated with interest to pay
off a long-term corporate or public debt. Abbr. SF.
[Cases: Corporations C=:)486; Municipal Corpora
tions 0=,951.]
strike fund. See STRIKE FUND.
Taft-Hartley fund. See jOint-welfare fund.
trust fund. See TRUST FUND.
unsatisfied-judgment fund. (1953) A fund established
by a state to compensate persons for losses stemming
from an automobile accident caused bv an uninsured
or underinsured motorist. [Cases: AU:tomobiles (;:=:
2. (usu, pI.) Money or other assets, such as stocks,
bonds, or working capital, available to pay debts,
expenses, and the like <Sue invested her funds in her
sister's business>,
current funds. Assets that can be readily converted
into cash.
3. A pool of investments owned in common and
managed for a fee; MUTUAL FUND < |
into cash.
3. A pool of investments owned in common and
managed for a fee; MUTUAL FUND <a diverse portfolio
of funds>,
fund, vb, (18c) 1. To furnish money to (an individual,
entity, or venture), esp, to finance a particular project.
2. To use resources in a manner that produces interest.
3. To convert (a debt, esp, an open account) into a long
term debt that bears interest at a fixed rate,
fundamental error. See plain error under ERROR (2),
fundamental-fairness doctrine. (1969) 'The rule that
applies the principles of due process to a judicial pro
ceeding, The term is commonly considered synony
mous with due process,
fundamental interest. See FUNDAMENTAL RIGHT,
fundamental law. (I7c) The organic law that establishes
the governing principles ofa nation or state; esp" CON
STITUTIONAL LAW, -Also termed organic law; ground
law, Cf. NATURAL LAW.
fundamental-miscarriage-of-justice exception. The
doctrine allowing a federal court in a habeas corpus
proceeding to address a claim of constitutional error
that, although ordinarily unreviewable, is subject to
review because ofa state-court procedural default that
rendered the proceedings basically unfair. For the
exception to apply, among other things, the petitioner
must show by a preponderance of the evidence that
constitutional error resulted in the conviction of one
who is actually innocent. Ifthe defaulted claim applies
only to sentencing, the exception permits review ofthe
claim ifthe petitioner shows by clear and convincing
evidence that, but for the constitutional error, no rea
sonable judge or jury would have imposed the sentence
that the petitioner received. [Cases: Habeas Corpus
C:~c401.]
fundamental right. (17c) 1. A right derived from natural
or fundamental law, 2. Constitutional law, A signifi
cant component ofliberty, encroachments of which are rigorously tested by courts to ascertain the soundness of
purported governmental justifications, A fundamen
tal right triggers strict scrutiny to determine whether
the law violates the Due Process Clause or the Equal
Protection Clause of the 14th Amendment. As enunci
ated by the Supreme Court, fundamental rights include
voting, interstate travel, and various aspects ofprivacy
(such as marriage and contraception rights), -Also
termed fundamental interest. See STRICT SCRUTINY, Cf.
SUSPECT CLASSIFICATION, [Cases: Constitutional Law
3901.]
fundamental term. See TERM (2).
fundamental trend. See major trend under TREND,
fundatio (f~n-day-shee-oh). [Latin "founding" or "foun
dation"] Hist. The founding of a corporation, particu
larly an eleemosynary corporation,
fundatio incipiens (bn-day-shee-oh in-sip-ee-enz),
[Latin "incipient foundation"] The incorporation or
grant ofcorporate powers,
fundatio perficiens (f;m-day-shee-oh p~r-fish-ee-enz),
[Latin "perfecting foundation"] The endowment or
gift offunds to a corporation,
funded. See FULLY FUNDED.
funded debt. See DEBT,
fund in court. See FUND (1),
funding, n. (18c) 1. The process of financing capital
expenditures by issuing long-term debt obligations or
by converting short-term obligations into long-term
obligations to finance current expenses; the process
of creating a funded debt. 2. The refinancing of a debt
before its maturity. -Also termed refunding, 3. The
provision or allocation ofmoney for a specific purpose,
such as for a penSion plan, by putting the money into a
reserve fund or investments, [Cases: Labor and Employ
ment ~--::>500,] 4. The provision of financial resources
to finance a particular activity or project, such as a
research study,S. The transfer of property to a trust.
fundi publici (f;ln-dr p;lb-l;,-sr), [Latin] Hist, Public
lands,
fundo annexa (f;ln-doh ~-nek-s<l). [Latin] Hist, Things
annexed to the soil.
funds transfer. A payment ofmoney from one person or
entity to another; esp., the process by which payment is
made through a series of transactions between comput
erized banking systems, beginning with an originator's
payment order and ending when a final payment order
is received by the beneficiary's bank, Commercial
or wholesale funds transfers are governed by Article
4A of the UCC. Consumer funds transfers are regu
lated by the federal Electronic Fund Transfer Act (15
USCA 1693 et seq,). Also termed (specif,) elec
tronic funds transfer (EFT), [Cases: Banks and Banking
(;:=:188.5.]
fundus (f;ln-d~s), [Latin "land"] Hist. L Land or ground
in general, without consideration of its specific use, 2.
A farm,
745
fundus emphyteuticarius (fan-das em-fa-tyoo-ti-kair
ee-as). Civil law. Land held under a hereditary lease
hold. See EMPHYTEUSIS.
fundus instructus (fan-das in-str;1k-t'ls). [Latin] Hist.
Land already provided with certain necessaries.
fundus patrimonialis (fan-das pa-tr;1-moh-nee-ay
lis). [Latin] Roman law. Land belonging to the patri
monium principis (that is, property belonging to the
emperor as such).
funeral expense. See EXPENSE.
fungibiles res (fan-jib-a-leez reez). [Latin) Civil law.
Fungible things.
fungible (f;m-ja-b<ll), adj. (18c) Commercially inter
changeable with other property of the same kind <corn
and wheat are fungible goods, whereas land is not>.
fungible, n.
fungible goods. See GOODS.
fur (far), n. [Latin) Roman law. A thief.
furandi animus (fyuu-ran-dr an-J-mJs). See animus
furandi under ANIMUS.
furca (far-b), n. [Latin "fork"] (l7c) Roman law. An
instrument of punishment with two prongs to which
the arms are tied . In England,furca became another
name for gallows.
furca etflagellum (far-ka et fl<l-jei-<:lm). [Law Latin]
Hist. Gallows and whip. This referred to the basest
of servile tenures the tenant was completely at the
mercy of the lord.
furca etfossa (far-b et fahs-a). [Law Latin] Hist. Gallows
and pit. -This phrase was used in ancient grants of
criminal jurisdiction for punishing felons: hanging for
men and drowning for women.
furfamosus (far f::l-moh-s::ls). [Latin] Scots law. A reputed
thief.
Furian Caninian law. See LEX FURIA CANINIA.
furigeldum (fyar-a-jel-d::lm). [Law Latin fur "theft" +
geldum "payment"] Hist. A fine paid for theft.
furlong (far-Iawng). (14c) One-eighth of a mile, or forty
rods. -Also termed Jerlingus; Jerlingum. [Cases:
Weights and Measures ~3.]
furlough (far-loh). (17c) 1. A leave of absence from
military or other employment duty. 2. A brief release
from prison. See study release under RELEASE.
furlough, vb. [Cases: Prisons C--=:o 174,249.]
fur manifestus (far man-;J-fes-tJs). [Latin "manifest
thief"] Roman law. A thief caught in the act ofstealing.
AJur manifestus could be put to death on the spot in
either oftwo circumstances: (1) ifthe theft occurred at
night, or (2) if the thief used a lethal weapon against the
person who discovered the crime. Apart from this, the
manifest thief was liable to pay the owner four times the
value of the stolen property. Also termed manifest
thief
furor brevis. See HEAT OF PASSION. furtum
furta (far-ta). Hist. A right or privilege from the monarch
to try, condemn, and execute criminals within a juris
diction.
further advance. 1. A second or later loan to a mort
gagor by a mortgagee, either on the same security as
the original loan or on an additional security. [Cases:
Mortgages 116.] 2. Equity practice. The agreed
conversion of arrears ofinterest on a mortgage security
into principal.
further assurance. See ASSURANCE.
further-exploration covenant. Oil &gas. In an oil-and
gas lease, an implied promise that once production has
been obtained from the leased property, the lessee will
continue to explore other parts of the property and
other formations under it. Some jurisdictions hold
that the covenant for further exploration does not exist
independently of the covenant for reasonable develop
ment. See also REASONABLE-DEVELOPMENT COVENANT;
REASONABLY-PRUDENT-OPERATOR STANDARD. [Cases:
Mines and Minerals 78.1(7).]
further instruction. See additional instruction under
JURY INSTRUCTION.
furtum (far-t<lm), n. [Latin "theft") Roman law. 1. The
offense of stealing movable property . Under Roman
law,furtum included not only the taking ofanother's
property, but any handling of the property done with
the intent of profiting by it. Furtum was not only a
private wrong (delictum) prosecuted by the person suf
fering the loss. Cf. PECULATUS. 2. The thing stolen.
furtum conceptum (far-t<Jm k::ln-sep-tam). [Latin]
Roman law. A theft in which someone is discovered
in possession of stolen property after a search with
witnesses. _ The possessor was liable to pay the owner
three times the value ofthe stolen property. The pos
sessor could bring an action against the thief and
recover triple damages.
furtum grave (br-tam gray-vee or grah-vay). Hist. Scots
law. An aggravated degree of theft that, in ancient
times, was punishable by death.
furtum manifestum (far-tam man-::l-fes-t::lm). [Latin
"open theft") Roman law. A theft in which the thief
is caught in the act. A theft was "manifest" if the
thief was caught on the day of the theft with the stolen
property before reaching the place where he intended
to take it. Fourfold damages were available by means
of actio Jurti. (See actio furti under ACTIO.) A theft
other than this type was known as furtum nec mani
festum.
furtum oblatum (far-tam a-blay-tam). [Latin "offered
theft"] Roman law. 1. A theft in which the thief offers
stolen property to a person who is then found with the
goods. "The person found in possession ofthe stolen
goods could bring an action against the true thief 2.
The planting of stolen goods.
furtum possessionis (far-t::lm p::l-zes[h]-ee-oh-nis).
[Latin "theft of possession"] Roman law. The owner's
dishonest removal of a thing from the control of a
746 Fusian Caninian law
pledgee, a bona fide possessor, a commodatary with
a lien, or a usufructuary.
furtum rei (far-tdm ree-I). [Latin "theft of a thing"]
Roman law. Ordinary theft, involving the dishon
est taking ofsomething to which the taker had no
right.
furtum usus (far-tdm yoo-S;:lS oryoo-zdS). [Latin "theft
ofthe use of a thing"] Roman law. 1. A bailee's dis
honest use of the thing bailed or lent. 2. A creditor's
dishonest use ofa pledge (pignus) without contractual
authority.
Fusian Caninian law. See LEX FURIA CANINIA.
fustigation (fds-ti-gay-shan), n. (16c) 1. Hist. The beating
of someone with a stick or club. 2. Harsh criticism.
fustigate, vb.
fustis (bs-tis). Hist. 1. A staff used in making livery of
seisin. 2. A baton or club.
FUTA. abbr. See FEDERAL UNEMPLOYMENT TAX ACT.
futhwite (footh-wIt). Hist. A fine for fighting or breaking
the peace. -Also termed fithwite.
future-acquired property. See AFTER-ACQUIRED
PROPERTY (1).
future advance. (1805) Money secured by an original
security agreement even though it is lent after the
security interest has attached. [Cases: Secured Trans
actions e::-~;20, 114.J
future-advance dause. (1911) A contractual term in
a security agreement covering additional loaned
amounts on present collateral or collateral to be
acquired in the future, regardless of whether the
secured party is obliged to make the advances; esp.,
a provision in an open-end mortgage or deed of trust
allOWing the borrower to borrow additional sums in
the future, secured under the same instrument and by
the same security. -This type of clause makes a new
security agreement unnecessary when the secured
creditor makes a future loan to the debtor. [Cases:
Mortgages 16, 116; Secured Transactions (:=-20,
114.]
future-advances mortgage. See MORTGAGE.
future consideration. See CONSIDERATION (1). future covenant. See COVENANT (4).
future damages. See DAMAGES.
future earnings. See lost earnings under EARNINGS.
future estate |
future damages. See DAMAGES.
future earnings. See lost earnings under EARNINGS.
future estate. Seefuture interest under INTEREST (2).
future goods. See GOODS.
future interest. See INTEREST (2).
future performance. See PERFORMANCE.
futures, n. 1. Standardized assets (such as commodi
ties, stocks, or foreign currencies) bought or sold for
future acceptance or delivery. Also termedfinancial
futures. 2. FUTURES CONTRACT. 3. Future claimants,
esp. those who would become members of a class of
persons injured by a defendant and thus included in
a class action.
futures-commission merchant. An individual or firm
that executes orders to buy and sell futures or futures
options. [Cases: Commodity Futures Trading Regula
tion 20, 26.]
futures contract. An agreement to buy or sell a stan
dardized asset (such as a commodity, stock, or foreign
currency) at a fixed price at a future time, usu. during
a particular time ofa month. -Futures contracts are
traded on exchanges such as the Chicago Board of
Trade or the Chicago Mercantile Exchange. Often
shortened to futures. -Also termed futures agreement;
time-bargain. Cf. forward contract under CONTRACT;
LEVERAGE CONTRACT; OPTION. Commodity
Futures Trading Regulation (:=-10.]
futures market. See MARKET.
futures option. See OPTION.
futures trading. The buying and selling offutures con
tracts, usu. on formal exchanges. [Cases: Commodity
Futures Trading Regulation G=, 11.]
future use. See contingent use under USE (4).
future value. See VALUE (2).
FWC. abbr. File wrapper continuation. See CONTINUA
TION; CONTINUATION-IN-PART.
FWS. abbr. UNITED STATES FISH AND WILDLIFE SERVICE.
fyrdfare. See FERDFARE.
G
GA. abbr. See general average under AVERAGE.
GAAP (gap). abbr. GENERALLY ACCEPTED ACCOUNTING
PRINCIPLES.
GAAS (gas). abbr. GENERALLY ACCEPTED AUDITING
STANDARDS.
gabel (g;J-bel). Hist. 1. A tax or duty on movables. 2.
GAVEL (2). -Also spelledgabelle. See LAND-GAVEL.
gabelle (g;J-bel). Hist. 1. A tax or duty on merchandise.
2. A peasant villager, esp. one who pays rent or tribute.
See GAVEL (1). -Also spelled gabella; gavella.
gage (gayj), n. (l4c) A pledge, pawn, or other thing depos
ited as security for performance . An archaic use of
this word corresponded to the way wage was formerly
used in legal contexts: a gager del ley, for example, was
an earlier form of wager oflaw, while gager de deliver
ance had the same meaning as wager ofdeliverance.
Cf. WAGE (2).
"A single root has sent out many branches which over
shadow large fields of law. Gage, engagement, wage,
wages, wager, wed, wedding, the Scottish wadset, all
spring from one root. In particular we must notice that
the word 'gage,' in Latin vadium, is applied indiscriminately
to movables and immovables, to transactions in which a
gage is given and to those in which a gage is taken. When a
lord has seized his tenant's goods in distress they are in his
hands a gage for the payment of the rent that is in arrear,
and the sheriff is always taking gages from those who have
no mind to give them. The notion expressed by the word
seems to be that expressed by our 'security' ...." 2 Fred
erick Pollock & Frederic W. Maitland, The History ofEnglish
Law Before the Time ofEdward 1117-18 (2d ed. 1899).
gage, vb. (14c) To pawn or pledge; to give as security for.
Gage is an older form of wage, and often appeared as
a phrase, gager deliverance.
"Though the word Cage be retained, as it is a Substantive,
yet as it is a verb, use hath turned the Cage into Wage so
as it is oftener written Wage; as to Wage Deliverance, to
give security, that a thing shall be delivered: For, if he that
distrained, being sued, have not delivered the Cattle that
were distrained, then he shall not onely avow the Distress,
but Cager Deliverance, put in surety, that he will deliver
them." Thomas Blount, Noma Lexicon. A Law-Dictionary
(1670).
gager (gay-j;Jr), n. The giving ofsecurity; the transaction
in which one gives a gage. See GAGE.
gager del ley. See WAGER OF LAW.
gag order. (1952) 1. A judge's order directing parties,
attorneys, witnesses, or journalists to refrain from
publicly discussing the facts ofa case . When directed
to the press, such an order is generally unconstitutional
under the First Amendment. [Cases: Criminal Law C=:c
633.33; Federal Civil Procedure C=:c 1951; Trial C=:c 18,
20.] 2. A judge's order that an unruly defendant be
bound and gagged during trial to prevent further inter
ruptions. [Cases: Criminal Law C=:c637.] gain, n. (14c) 1. An increase in amount, degree, or
value.
pecuniary gain. (l8c) 1. A gain of money or of some
thing having monetary value. 2. Criminal law. Any
monetary or economic gain that serves as an impetus
for the commission of an offense. In most states,
an offense and its punishment are aggravated if the
offense was committed for pecuniary gain. Murder,
for example, is often aggravated to capital murder if
the murderer is paid to commit the crime. See SOLICI
TATION (2).
2. Excess of receipts over expenditures or ofsale price
over cost. See PROFIT (1). 3. Tax. The excess of the
amount realized from a sale or other disposition of
property over the property's adjusted value. IRC (26
USCA) 1001. -Also termed realized gain; net gain;
(in senses 2 & 3) business gain. [Cases: Internal Revenue
~'""='3178-3216.]
capital gain. See CAPITAL GAIN.
extraordinary gain. (16c) A gain that is both unusual
and infrequent, such as the gain realized from selling
a large segment ofa business.
ordinary gain. (1945) A gain from the sale or exchange
ofa noncapital asset. Cf. CAPITAL GAIN.
recognized gain. (1951) The portion of a gain that is
subject to income taxation. IRC (26 USCA) 1001(c).
See BOOT (1). [Cases: Internal Revenue C=:c3178
3216.]
4. (pl.) Civil law. A type of community property that
reflects the increase in property value brought about
by the spouses' common skill or labor. See COMMU
NITY PROPERTY; ACQUET. [Cases: Husband and Wife
C=:c258.]
gainage. See WAINAGE (2).
gainful employment. See EMPLOYMENT.
gainor. See SOCMAN.
gains, n. See GAIN.
GAL. abbr. See guardian ad litem under GUARDIAN.
gale (gayl). (17c) Hist. 1. A periodic payment of rent. See
GAVEL (2). 2. Rent paid by a free miner (the galee) for
the right to mine a plot of land. 3. A license to mine a
plot ofland. A gale could be conveyed or devised. 4.
The land so licensed.
Gallagher agreement. (1977) A contract that gives one
codefendant the right to settle with the plaintiff for a
fixed sum at any time during trial and that guarantees
payment of the sum regardless of the trial's outcome.
City ofTucson v. Gallagher, 493 P.2d 1197 (Ariz. 1972).
Cf. MARY CARTER AGREEMENT. [Cases: Compromise
and Settlement C=:c 100.]
748 gallows
gallows. (bef. 12c) A wooden frame consisting of two
upright posts and a crossbeam, from which condemned
criminals are hanged by a rope.
gamalis (g;}-may-lis). [Law Latin] Hist. 1. A child born
in lawful wedlock. 2. A child born to betrothed but
unmarried parents.
gambler. See COMMON GAMBLER.
gambling, n. (l8c) The act ofrisking something ofvalue,
esp. money, for a chance to win a prize. -Gambling is
regulated by state and federal law. 18 USCA 1081 et
seq. Also termed gaming. See COMMON GAMBLER.
[Cases: Gaming C==> 1,4.)
Indian gambling. Gambling conducted by a feder
ally recognized Indian tribe and regulated by federal
law.
gambling contract. See CONTRACT.
gambling device. Any thing, such as cards, dice, or an
electronic or mechanical contrivance, that allows a
person to playa game of chance in which money may
be won or lost. -Gambling devices are regulated by
law, and the use or possession of a gambling device can
be illegal. Also termed gaming device.
gambling place. Any location where gambling occurs.
IS USCA lOS1. -Also termed gaming house; gaming
room.
gambling policy. See wager policy under INSURANCE
POLICY.
gambling verdict. See chance verdict under VERDICT.
game, n. (l3c) 1. Wild animals and birds considered as
objects of pursuit, for food or sport; esp., animals for
which one must have a license to hunt. [Cases: Game
2. A contest, for amusement or for a prize, whose
outcome depends on the skill, strength, or luck of the
players. [Cases: GamingC==>6.)
game ofchance. A game whose outcome is determined
by luck rather than skill. See GAMBLING DEVICE.
[Cases: Gaming C==>6; Lotteries
"Games of chance do not cease to be such merely because
they call for the exercise of skill by the players, nor do
games of skill cease to be so because at times .. their
result is determined by some unforeseen aCcident, usually
called 'luck.' According to some cases, the test of the char
acter of the game is not whether it contains an element
of chance or an element of skill, but which of these is
the dominating element that determines the result of the
game.... And it has been said that 'it is the character of
the game, and not the skill or want of skill of the player,'
which determines whether a game is one ofchance or skill:'
38 Am. Jur. 2d Gambling 4, at 109-10 (1968).
game ofskill. A game in which the outcome is deter
mined by a player's superior knowledge or ability, not
chance. [Cases: Gaming C==>6.J
percentage game. A game of chance from which the
house collects an amount calculated as a percentage
of the wagers made or the sums won. Percentage
games are illegal in many states. Gaming C==>
6S.)
game, vb. To gamble; to play for a stake. game law. (lSc) A federal or state law that regulates the
hunting of game, esp. one that forbids the capturing
or killing of specified game either entirely or season
ally, describes the means for killing or capturing game
in season, or restricts the number and type of game
animals that may be killed or captured in season. 16
USCA 661-667; 18 USCA 41-47. [Cases: Game
C==>4.]
gamete intrafallopian transfer. (ca. 1984) A procedure
in which mature eggs are implanted in a woman's fallo
pian tubes and fertilized with semen. -Abbr. GIFT.
Also termed gamete intrafallopian-tube transfer. Cf.
ZYGOTE INTRAFALLOPIAN TRANSFER; ARTIFICIAL
INSEMINATION; IN VITRO FERTILIZATION.
gaming. See GAMBLING.
gaming contract. See gambling contract under
CONTRACT.
gaming device. See GAMBLING DEVICE.
gaming house. See GAMBLING PLACE.
gaming room. See GAMBLING PLACE.
ganancial (g~-nan-sh;}I), adj. (1843) Of, relating to, or
consisting ofcommunity property <a spouse's ganan
cial rights>. See COMMUNITY PROPERTY.
"The Spanish [more correctly, the Castilian] form of commu
nity property, called the 'gananCial' system, is found today
in nine states of the United States, the Spanish-American
republics of Central and South America, the Common
wealth of Puerto Rico and the Philippine Republic." Robert
L Menell & Thomas M. Boykoff, Community Property in Q
Nutshell 10 (2d ed. 1988).
G & A. abbr. See general administrative expense under
EXPENSE.
gang. (ISc) A group ofpersons who go about together or
act in concert, esp. for antisocial or criminal purposes.
-Many gangs have common identifying signs and
symbols, such as hand Signals and distinctive colors.
Also termed street gang.
gangland. (ca. 1912) The world of criminal gangs and
organized crime.
gangster. A member ofa criminal gang or an organized
crime syndicate.
Ganser's syndrome (gahn-z;}r or gan-s;}r). (1968) An
abnormality characterized by the giving of irrelevant
and nonsensical answers to questions. _ |
). (1968) An
abnormality characterized by the giving of irrelevant
and nonsensical answers to questions. _ Prisoners have
been known to feign this syndrome in an attempt to
obtain leniency.
gantlet (gawnt-lit). [fr. Swedish gata "lane" + lopp
"course") (15c) 1. Hist. A former military punishment
in which the offender was stripped to the waist and
forced to run between two rows of soldiers who gave
him lashes as he passed. 2. A series of severe troubles or
difficulties; an ordeal. - Also spelled gauntlet; (archai
cally) gantlope.
GAO. abbr. GENERAL ACCOUNTABILITY OFFICE.
gaol. See JAIL.
gaol delivery. See JAIL DELIVERY.
749
gaoler. See TAILER.
gaol liberties. See TAIL LIBERTIES.
gap. See GAP PERIOD.
gap creditor. See CREDITOR.
gap-filler. (l5c) A rule that supplies a contractual term
that the parties failed to include in the contract. For
example, if the contract does not contain a sales price,
UCC 2-305(1) establishes the price as being a rea
sonable one at the time ofdelivery. Cf. DEFAULT RULE.
[Cases: Sales (;:--">22(4), 23(4).]
"Contracts often have gaps in them. intentional or inadver
tent. Gaps arise, too, out of the 'battle of the forms' under
sections 2-204 and 2-207. Some gaps are more or less
complete, others only partial. Article 2 of the Code includes
numerous gap filler provisions which taken together con
stitute a kind of standardized statutory contract." 1James
J. White & Robert S. Summers, Uniform Commercial Code
3-4 (4th ed. 1995).
gap financing. See FINANCING.
gap period. (1978) Bankruptcy. The duration of time
between the filing of an involuntary bankruptcy
petition and the entry of the order for relief. Often
shortened to gap. [Cases: Bankruptcy (~~)2281.]
gap report. (1984) In the making of federal court a
report that explains any changes made by an advisory
committee in the language of a proposed amendment
to a procedural rule after its publication for comment.
Before advisory committees began issuing gap reports
in the early 1980s, there were complaints that the public
record did not show why changes were made after the
public-comment period. The five adviSory commit
tees -for appellate, bankruptcy, civil, criminal, and
evidence rules therefore began filing the reports to
fill in the "gaps" in the record. Although the phrase is
sometimes written in capital letters (GAP report), it is
not an acronym.
gap theory. Insurance. The principle that a tortfeasor
will be considered underinsured ifhis or her liabilitv
insurance coverage although legally adequate 'is
less than the injured party's underinsured-motorist
coverage . This principle allows an injured party to
invoke underinsured-motorist coverage. Cf. EXCESS
THEORY. [Cases: Insurance~2787.1
garageman's lien. See mechanic's lien under LIEN.
garandia (gd-ran-dee-d). [Law Latin] Hist. A warranty.
Also spelled garantia (gd-ran-shee-a).
garauntor (gar-om-tar). [Law French] Hist. A warrantor
ofland . Agarauntorwas obligated to defend the title
and seisin ofthe alienee. Ifthe alienee was evicted, the
garauntor had to provide the alienee with other land
ofequal value.
Garcia hearing (gahr-see-a). (1981) Criminal procedure.
A hearing held to ensure that a defendant who is one
of two or more defendants represented by the same
attornev understands (1) the risk of a conflict of interest
inhere~t in this type of representation, and (2) that he
or she is entitled to the services of an attorney who
does not represent anyone else in the defendant's case. garnishee
United States v. Garcia, 517 E2d 272 (5th Cir. 1975).
See CONFLICT OF INTEREST (2). [Cases: Criminal Law
1790.]
gard (gahrd). [Law French] Hist. 1. Wardship or custody
(of a person). 2. A precinct (or ward) ofa city. -Also
spelled garde; gardia.
garde (gahrd). [French] I. Civil law. A relationship that
gives rise to a person's liability when an injury is caused
by a thing, whether animate or inanimate, that is con
sidered by law to be that person's responsibility or to
be in that person's custody. 2. See GARD.
gardein (gahr-deen). [Law French] Hist. A guardian or
keeper. Also spelled gardian; gardien; gardeyn.
gardia (gahr-dee-d). GARD.
gardianus (gahr-dee-ay-nas). [Law Latin] Hist. A
guardian, defender, or protector; a warden. -Also
spelled guardian us.
gardianus ecclesiae (gahr-dee-ay-nas e-klee-z[h]ee-ee).
Eccles. law. A churchwarden.
garene (ga-reen). [Law French] See WARREN.
Garmon doctrine. See Garmon preemption under PRE
EMPTION.
Garmon preemption. See PREEMPTION.
Garner doctrine. (1970) The rule that allows shareholder
plaintiffs in a corporate derivative action to discover
confidential communications between a corporate
officer and the corporation's attorney . The Garner
doctrine does not apply to attorney work product, and
the movant must show good cause. Garner v. Wolfm
barger, 430 F.2d 1093 (5th Cir. 1970). See DERIVATIVE
ACTION (1). [Cases: Federal Civil Procedure ~1604(1);
Privileged Communications and Confidentiality ~
113.]
, garnish, n. (16c) Hist. Money exacted from a new
. prisoner by other prisoners or as a jailer's fee. This
practice was banned in England in 1815.
garnish, vb. [Old French garnir "to warn" "to prepare"]
(16c) 1. Hist. To notify or warn (a person) of certain
debts that must be paid before the person is entitled
to receive property as an heir. 2. To subject (property)
to garnishment; to attach (property held by a third
party) in order to satisfy a debt. 3. To notify {a person,
bank, etc.} that a garnishment proceeding has been
undertaken and that the one receiving notice may be
liable as stakeholder or custodian of the defendant's
property. -Also termed garnishee; (in senses 2 & 3)
factorize. [Cases: Federal Civil Procedure ~601; Gar
nishment ~ 1.] -garnishable, adj.
garnishee (gahr-ni-shee), n. (l7c) A person or institu
tion (such as a bank) that is indebted to or is bailee for
another whose property has been subjected to garnish
ment. -Also termed garnishee-defendant (as opposed
to the "principal defendant," i.e., the primary debtor).
[Cases: Federal Civil Procedure ~60l; Garnishment
C=13-24.]
garnishee (gahr-ni-shee), vb. See GARNISH.
garnisher 750
garnisher. (l6c) A creditor who initiates a garnishment
action to reach the debtor's property that is thought to
be held or owed by a third party (the garnishee). Also
spelled garnishor. [Cases: Garnishment e:-~11.]
garnishment, n. (16c) 1. A judicial proceeding in which a
creditor (or potential creditor) asks the court to order a
third party who is indebted to or is bailee for the debtor
to turn over to the creditor any ofthe debtor's property
(such as wages or bank accounts) held by that third
party. A plaintiff initiates a garnishment action as a
means ofeither prejudgment seizure or post judgment
collection. [Cases: Federal Civil Procedure ~601;
Garnishment ll8.]
"Garnishment is a[nl ... inquisitorial proceeding, affording
a harsh and extraordinary remedy. it is an anomaly, a statu
tory invention sui generis. with no affinity to any action
known to the common law .... It is a method of seizure; but
it is not a 'levy' in the usual acceptation of that term. It is a
proceeding by which a diligent creditor may legally obtain
preference over other creditors; and it is in the nature of a
creditor's bill. or a sequestration of the effects of a debtor
in the hands of his debtor." 38 c.J,S. Garnishment 3, at
248-50 (2003).
wrongful garnishment. (1896) 1. An improper or
tortious garnishment. [Cases: Garnishment
122,248.] 2. A cause ofaction against a garnisher for
improperly or tortiously filing a garnishment pro
ceeding. [Cases: Garnishment ~248-251.)
2. The judicial order by which such a turnover is
effected. Cf. ATTACHMENT (1); SEQUESTRATION (1).
garnishment lien. See LIEN.
garnishor. See GARNISHER.
Garrity statement (gar-d-tee). (1967) A public employee's
oral or written report (as ofan incident) obtained under
a threat of termination of employment. A public
employee usu. makes a Garrity statement in the course
ofan internal investigation (as by a police department).
Because a Garrity statement is coerced, the statement
and any evidence obtained as a result of it cannot be
used in a later criminal prosecution against the public
employee. The statement and evidence may be used
only to evaluate the employee's performance. Garrity
v. New Jersey, 385 U.S. 493, 87 S.Ct. 616 (1967).
garsumne. [Old English] A fine; an amercement.
gas-balancing agreement. Oil & gas. A contract among
owners of the production ofa gas well to balance pro
duction if one owner sells more ofthe gas stream than
the other owners do.
"Gas balancing agreements address the problem of imbal
ances in production from a gas well or field. Co-owners
frequently sell their share of production to different pur
chasers .... Even when co-owners sell to the same pur
chaser, their contracts are likely to be signed at different
times and to have different price and take provisions. Thus,
imbalances are ineVitable." John S. Lowe, Oil and Cas Law
in a Nutshell 385 (3d ed. 1995).
gas chamber. (ca. 1945) A small, sealed room in which
a capital punishment is carried out by strapping the
prisoner into a chair and releasing poisonous fumes. gas contract. Oil & gas. An agreement for the sale of
natural gas. [Cases: Gas (,.""'::: 14.1(3).]
gas sold. Oil & gas. Natural gas that is actually sold but
not necessarily all that a well produces . 'The term is
used in natural-gas leases.
gastonette. (1988) A dilatory dance" in which each of
the two responsible parties waits until the other party
acts so that the delay seems interminable; esp., a
standoff occurring when two courts simultaneously
hear related claims arising from the same bases and
delay acting while each court waits for the other to act
first. The term was coined by Judge Jon O. Newman
in In re McLean Industries, Inc., 857 F.2d 88, 90 (2d Cir.
1988), on the model of"After you, my dear Alphonse."
"No, after you, Gaston."
gas used. Oil &gas. Natural gas that is consumed while a
well is in operation but that is not necessarily sold.
GATT (gat). abbr. GENERAL AGREEMENT ON TARIFFS
AND TRADE. See TRIPS.
gauger (gay-jar). (15c) A surveying officer who examines
containers ofliquids to give them a mark ofallowance,
as containing the lawful measure.
gauntlet. See GANTLET.
gavel (gav-<ll). (bef. 12c) 1. Hist. A tribute, toll, or custom
paid to a superior. 2. Hist. An annual payment of rent
or revenue, esp. payment in kind, such as gavel-corn,
gavel-malt, or oat-gavel. -Sometimes spelled gabel.
3. A mallet used by a presiding officer, often a judge, to
bring a meeting or court to order.
gavelbred (gav-dl-bred). Hist. Rent payable in bread,
corn, or some other provision; rent payable in kind.
gavelet (gav-dl-it). (14c) Rist. A writ used in Kent and
London to recover rent from land held in gavelkind.
See CESSAVIT.
gavelgeld (gav-al-geld). Hist. 1. Property that yields a
profit or a tolL 2. The tribute or toll itself.
gavelherte (gav-<ll-h<lrt). Hist. A service ofplowing per
formed by a customary tenant.
gaveling man (gav-dl-ing man or mdn). Hist. See
GAVELMAN.
gavelkind (gav-al-kInd). (14c) Hist. 1. A species ofsocage
tenure arising in land that has descended equally to
the decedent's sons . It was Widespread before 1066, |
ising in land that has descended equally to
the decedent's sons . It was Widespread before 1066,
when it was mainly superseded by primogeniture. This
property-division technique was then largely limited to
Kent. The person holding land in this manner enjoyed
several advantages not available under the common law:
the land could be disposed ofby will, did not escheat for
felony other than treason or for want ofheirs, and was
alienable by an heir at age 15. Gavelkind was abolished
in 1925. Although the etymology ofthis term was much
debated in the 19th century, the explanation given in
the first quotation below appears to be the true one. 2.
Land that yields gavel service.
"[Clarol, or gavel, was a word of frequent use before the
Norman Conquest, and signified not only a tribute, tax,
or custom, but also rent in general; and ... under this
751 General Agreement on Tariffs and Trade
term were comprehended all socage services whatsoever
which lay in render or feasance, the word being often com
pounded with and applied to the particulars wherein the
payment or performance of the service consisted; as corn
gavel, or gavelcorn, was a cornrent, and gavel-earth was a
service of 'earing' or ploughing.... The tenant from whom
such services were due was called a gavel-man: and 'gavel
kind' being taken as a compound of this word 'gavel' and
'gekynde,' which is nature, kind, quality (usually appearing
under the form 'gafolcund' in the most ancient records),
the proper signification of the term will be land of the
kind or nature which yielded rent, or 'censualland,' which
may be compared to rent-service land as distinguished
from knight-service land, which being held by free military
service yielded no 'cens' or rent in money, provision, or
works: so that the lands held by the old English tenure
are known in Kent as gavelkind which in other parts of the
country are distinguished by the name of socage." Charles
I. Elton & HerbertJ.H. Mackay, Robinson on Cavelkind 5-6
(5th ed. 1897).
"The term 'gavelkind' has by the modern usage acquired [a]
signification more confined as to the properties contained
under it, yet more extensive in point of place: since at this
day it is generally used to denote the partibility of the land,
exclusive of all other customary qualities; nor is the word
'gavelkind' in common parlance confined to Kentish lands,
but is equally and indifferently applied to all partible lands
wherever they lie." Id. at 9,
"Archbishop Hubert Walter, who presided in the king's
court ... obtained from King John a charter empowering
him and his successors to convert into military fees the
tenements that were holden of their church in gavelkind,
The archbishop's main object may have been to get money
in the form of rents and scutages, instead of provender and
boonworks, 'gavel-corn' and 'gavel-swine,' 'gavelerth' and
'gavel-rip'...." 2 Frederick Pollock & Frederic W. Maitland,
The History ofEnglish Law Before the Time ofEdward 1273
(2d ed. 1899).
gavelman (gav-;ll-m;ln). Hist. A tenant who is liable for
money rent in addition to a customary service to the
lord. _ A gavelman was formerly a villein who had
been released from villenage in consideration ofmoney
rent. Also termed gaveling man.
gavelmed (gav-;ll-meed). Rist. A tenant's customary
service of mowing the lord's meadowland or grass for
hay. -Also spelledgavelmead.
gavel rep (gav-;ll-reep). Hist. A tenant's duty to reap the
lord's fields at the lord's command; BEDRIP. -Also
spelled gavelrip.
gavel through. Parliamentary law. To put (a question) to
a vote before any member can obtain the Hoor. The
practice of "gaveling through" a motion is improper
under parliamentary law.
"It should be noted that, under legitimate parliamentary
procedure, there is no such thing as 'gaveling through' a
measure. The right of members to debate or introduce sec
ondary motions cannot be cut off by the chair's attempting
to put a question to vote so quickly that no member can get
the floor -either when the chair first states the question
or when he believes debate is ended. Debate is not closed
by the presiding officer's rising to put the question." Henry
M. Robert, Robert's Rules ofOrder Newly Revised 43, at
374 (lOth ed. 2000).
gavelwerk (gav-;ll-w;lrk). Hist. Customary service, either
by the tenant's own hands or with the aid ofthe tenant's
carts or carriages. gay marriage. See same-sex marriage under MARRIAGE
(1).
Gazette (g;l-zet). (17c) An official newspaper of the
British government in which acts of State, Crown
appointments, notices of bankruptcy, and other legal
matters are reported . Although the London Gazette
is the most famous, there are also publications called
the Edinburgh Gazette and the Belfast Gazette with
similar purposes,
gazumping (g;l-zamp-ing). (20c) BrE Slang. The improper
sale of a house, usu. by raising the price after accept
ing an offer. Gazumping can take different forms,
the usual one being when a seller raises the price after
accepting the buyer's offer. But it may also occur when
a competing buyer makes a higher bid than the one
already accepted, thus encouraging the seller to back
out of the earlier contract.
g.b.h. abbr. Grievous bodily harm. See serious bodily
injury under INJURY.
GBMI. abbr. GUILTY BUT MENTALLY ILL
gdn. abbr. GUARDIAN.
Gebrauchsmuster. [German] Patents. UTILITY MODEL.
Abbr.GM.
geld, n. (lSc) Hist. A tax paid to the Crown under Anglo
Saxon and Norman kings.
geldable (geld-;l-b;ll), adj, Hist. (Of property) subject to
tax or tribute. Also spelled gildable.
GEM. See growing-equity mortgage under MORTGAGE.
gemot (g;l-moht). (bef. 12c) Hist. A local judicial
assembly; a public meeting. Also spelled gemote.
gender discrimination. See sex discrimination under
DISCRIMINATION.
gener (jee-n<Jr), n. [Latin] Roman law. A son-in-law,
General Accounting Office. See GENERAL ACCOUNT
ABILITY OFFICE.
General Accountability Office. An office in the legisla
tive branch of the federal government responsible for
auditing the receipt and disbursement of U.S. govern
ment funds and conducting investigations for members
ofCongress and congreSSional committees . Headed
by the Comptroller General ofthe United States, it was
formerly called the General Accounting Office, estab
lished by the Budget and Accounting Act of 1921. It was
renamed in 2004. 31 USCA 702. -Abbr. GAO.
general act. See PUBLIC LAW (2).
general administration. See ADMINISTRATION.
general administrative expense. See EXPENSE.
general administrator. See ADMINISTRATOR (2).
general agency. See AGENCY (I).
general agent. 1. See AGENT (2). 2. See INSURANCE
AGENT.
General Agreement on Tariffs and Trade. A multiparty
international agreement -signed originally in 1948
that promotes international trade by lowering import
752 general appearance
duties and providing equal access to markets . More
than 150 nations are parties to the agreement. Abbr.
GATT.
general appearance. See APPEARANCE.
general assembly. 1. The name ofthe legislative body
in many states. 2. (cap.) The deliberative body of the
United Nations. 3. CONVENTION (4).
general assignment. See ASSIGNMENT (2).
general assumpsit. See ASSUMPSIT.
general authority. See AUTHORITY (1).
general average. See AVERAGE.
general-average bond. See BOND (2).
general-average contribution. See general average under
AVERAGE.
general average loss. See LOSS.
general-average statement. Maritime law. A statement
containing an exact calculation ofthe general average
and each party's contributory share. See AVERAGE (3).
[Cases: Shipping 199.]
general benefit. See BENEFIT.
general bequest. See BEQUEST.
general cargo. See CARGO.
general challenge. See challenge for cause under CHAL
LENGE (2).
general compromis. See COMPROMIS.
general consent. l. See BLANK CONSENT. 2. See CONSENT
(2).
general contractor. See CONTRACTOR.
general council. See COUNCIL.
general counsel. See COUNSEL.
General Counsel's Memorandum. Tax. 1. A written dis
cussion, issued by the office ofthe Chief Counsel ofthe
IRS, on the merits of a legal issue involving tax law. 2.
A written explanation, issued by the office ofthe Chief
Counsel of the IRS, explaining the IRS's positions in
revenue rulings and technical advice memorandums.
[Cases: Internal Revenue (;:=;;3051.]
general couut. See COUNT.
General Court. The name of the legislatures of Massa
chusetts and New Hampshire . "General Court" was
a common colonial-era term for a body that exercised
judicial and legislative functions. Cf. COURT OF ASSIS
TANTS.
general court-martial. See COURT-MARTIAL.
general covenant against encumbrances. See covenant
against encumbrances under COVENANT (4).
general creditor. See unsecured creditor under CREDI
TOR.
general criminal intent. Seegeneral intent under INTE::-<T
(1).
general custom. See CUSTOM.
general damages. See DAMAGES. general debt. See DEBT.
general deficiency bill. See deficiency bill under BILL
(3).
general demurrer. See general exception (1) under
EXCEPTION (1).
genera] denial. See DENIAL.
general deposit. See DEPOSIT (2).
general deputy. L See DEPUTY (2). 2. See deputy sheriff
under SHERIFF.
general deterrence. See DETERRENCE.
general devise. See DEVISE.
general-disability insurance. See INSURANCE.
general discharge. See DISCHARGE (8).
general election. See ELECTION (3).
general employer. See EMPLOYER.
general exception. See EXCEPTION (1).
general execution. See EXECUTION (4).
general executor. See EXECUTOR.
general expense. See general administrative expense
under EXPENSE.
general federal common law. See COMMON LAW (1).
general fee conditional. Seefee simple conditional under
FEE SIMPLE.
general finding. See FINDING OF FACT.
general franchise. See FRANCHISE (2).
general fund. See Fl:ND (1).
general good and welfare. See GOOD OF THE ORDER.
general guaranty. See GUARANTY.
general guardian. See GUARDIAN.
general hypothecation. See HYPOTHECATION.
generalia specialibus non derogant (jen-a-ray-Iee-a
spesh-ee-ay-h-bas non der-a-g;mt). [Latin "general
things do not derogate from specific things"] The
doctrine holding that general words in a later statute do
not repeal an earlier statutory provision dealing with a
special subject. This principle illustrates the cautious
approach that some courts have adopted in interpret
ing broad provisions, but there are many exceptions.
[Cases: Statutes CC)162,223.4.]
general imparlance. See IMPARLANCE.
general improvement. See IMPROVEMENT.
general indorsement. See blank indorsement under
INDORSEMENT.
general instruction. See JURY INSTRUCTlO::-<.
general intangible. See INTANGIBLE.
general intent. See INTENT (1).
general-intent crime. See CRIME.
general issue. See ISSUE (1).
general jail delivery. See JAIL DELIVERY.
general jurisdiction. See JURISDICTION.
753
general-jurisdiction court. See court ofgeneral jurisdic
tion under COURT.
general jurisprudence. See JURISPRl:DENCE.
general-justification defense. See lesser-evils defense
under DEFENSE (1).
General Land Office. A former U.S. Interior Department
division that exercised executive power relating to the
public lands, including their survey, patenting, and sale
or other disposition . The General Land Office and the
U.S. Grazing Service were consolidated into the Bureau
of Land Management in 1946. See BUREAU OF LAND
MANAGEMENT. [Cases: Public Lands
general law. See LAW.
general ledger. See LEDGER (1).
general legacy. See LEGACY.
general legal principle. See GENERAL PRINCIPLE OF
LAW.
general legatee. See LEGATEE.
general legislation. See LEGISLATION.
general letter ofcredit. See LETTER OF CREDIT.
general.liability policy. See comprehensive general-lia
bility policy under INSURANCE POLICY.
general lien. See LIEN.
general listing. See open listing under LISTING (1).
generally accepted accounting principles. (1930) The
conventions, rules, and procedures that define approved
accounting practices at a particular time . These prin
ciples are issued by the Financial Accounting Standards
Board for use by accountants in preparing financial
statements. The principles include not only broad
guidelines of general application but also detailed prac
tices and procedures. -Abbr. GAAP. Also termed
generally accepted accountancy principles.
generally accepted auditing standards. lhe guidelines
issued by the |
Also termed
generally accepted accountancy principles.
generally accepted auditing standards. lhe guidelines
issued by the American Institute of Certified Public
Accountants establishing an auditor's professional
qualities and the criteria for the auditor's examination
and required reports. -Abbr. GAAS.
general malice. See MALICE.
general manager. See MANAGER.
general maritime law. The body of U.S. legal precedents
and doctrines developed through caselaw in maritime
and admiralty litigation . General maritime law is
a branch of federal common law. It is distinguished
from statutory law. Cf. MARITIME LAW; LAW OF THE
SEA. [Cases: Admiralty C= 1.5.]
"The general maritime law is characterized by the expan
sive and dominant role played by federal courts in fashion
ing and applying its precepts to new situations. Large areas
of maritime tort law have not been touched by legislation;
these are left to the federal courts to define and fill. In
areas preempted by legislation, federal courts may not
establish principles in derogation of the congressional
mandate. However, in the framework of admiralty juris
diction, federal courts may still play an active role in inter
preting statutes, filling gaps, and coordinating legislation general revenue
with the general maritime law." Thomas J. Schoenbaum,
Admiralty and Maritime Law 122 (1987).
general mens rea. See general intent under r",TENT (1).
general mortgage. See MORTGAGE.
general-mortgage bond. See BOND (3).
general non est factum. See NON EST FACTUM.
general objection. See OBJECTION.
general-obligation bond. See BOND (3).
general occupant. See OCCl:PANT.
general officer. See OFFICER (2).
general order. See ORDER (4).
general owner. See OWNER.
general parliamentary law. See PARLIAMENTARY LAW.
general pardon. See AMNESTY.
general partner. See PARTNER.
general partnership. See PARTNERSHIP.
general personal jurisdiction. See JURISDICTION.
general plea. See general denial under DENIAL.
general plea in bar. See PLEA IN BAR.
general power. See POWER OF APPOINTMENT.
general power ofappointment. See POWER OF APPOIKT
MENT.
general power ofattorney. See POWER OF ATTORNEY.
general prayer. See PRAYER FOR RELIEF.
general principle oflaw. 1. A principle widely recognized
by peoples whose legal order has attained a certain level
ofsophistication. 2. Int'llaw. A principle that gives rise
to international legal obligations.
"[T]he adjective 'general' does not refer to several or many
orders [Le., legal systems] as do the general principles of
national law, but indicates principles which are applied
generally in all cases of the same kind which arise in
international law (e.g. the principle of nonintervention)."
Hermann Mosler, "General Principles of Law," in 2 Encyclo
pedia ofPublic International Law 512, 512 (1995).
3. A principle recognized in all kinds oflegal relations,
regardless of the legal system to which it belongs (state
law, federal law, international law, etc.). Also termed
general legal principle.
general privilege. See PRIVILEGE (5).
general property. See PROPERTY.
general publication. See PUBtICATION.
general-public license. See open-source license under
LICENSE.
general receiver. See principal receiver under RECEIVER.
general reference. See REFERENCE.
general replication. See REPLICATION.
general reprisal. See REPRISAL.
general retainer. See RETAINER.
general retention. See RETENTION.
general revenue. See REVENUE.
754 general revenue fund
general revenue fund. See FUND (1).
general rule. See RULE.
general sentence. See SENTENCE.
General Services Administration. The independent
federal agency that constructs and operates buildings;
manages government property and records; procures
and distributes supplies; and provides management
services in communications, traffic, and automatic
data processing . Its Office ofEnterprise Development
assists small businesses in dealing with the agency
through GSA's 12 regional offices. The agency was
created by the Federal Property and Administrative
Services Act of 1949. 40 USCA 751. -Abbr. GSA.
general ship. See SHIP.
general special imparlance. See IMPARLANCE.
general statute. 1. See STATUTE. 2. See PUBLIC LAW (2).
general strike. See STRIKE.
general synod. See SYNOD.
general tail. See tail general (1) under TAIL.
general tax. See TAX.
general tenancy. See TENANCY.
general term. See TERM (5).
general title. See TITLE (3).
general traverse. See TRAVERSE.
general truce. See TRUCE.
general trust. See passive trust under TRUST.
general usage. See USAGE.
general verdict. See VERDICT.
general-verdict rule. (1930) The principle that when
a jury returns a general verdict on multiple causes
of action (or theories of recovery), it is presumed on
appeal that the jury found in the prevailing party's
favor on each cause ofaction. (Cases: Appeal and Error
~930(4).]
general verdict subject to a special case. See VERDICT.
general verdict with interrogatories. See VERDICT.
general warrant. See WARRANT (1).
general warranty. See WARRANTY (1).
general warranty deed. See warranty deed under
DEED.
general welfare. See WELFARE (l).
General Welfare Clause. (1898) U.S. Const. art. I,
8, d. 1, which empowers Congress to levy taxes and
pay debts in order to provide for the country's general
welfare. The Supreme Court has broadly interpreted
this clause to allow Congress to create, for example, the
social-security system. -Also termed Welfare Clause.
lCases: United States ~22.]
general words. (I8c) Semantically broad expression; esp.,
language used in deeds to convey not only the specific
property described in the conveyance but also all easements, privileges, and appurtenances that may belong
to the property. [Cases: Deeds (,'-:::> 117.]
generation. (l4c) 1. A Single degree or stage in the suc
cession of persons in natural descent. 2. The average
time span between the birth of parents and the birth
of their children.
generation-skipping tax. See TAX.
generation-skipping transfer. (1979) Wills & trusts. A
conveyance ofassets to a "skip person," that is, a person
more than one generation removed from the transf
eror. For example, a conveyance either directly or in
trust from a grandparent to a grandchild is a genera
tion-skipping transfer subject to a generation-skipping
transfer tax. IRC (26 USCA) 2601-2663. See gen
eration-skipping transfer tax under TAX; generation
skipping trust under TRUST; SKIP PERSON.
generation-skipping transfer tax. See TAX.
generation-skipping trust. See TRUST.
generic, adj. (1846) Trademarks. 1. Common or descrip
tive, and thus not eligible for trademark protection;
nonproprietary <a generic name>. [Cases: Trademarks
0=1034.] 2. Not having a trademark or brand name
<generic drugs>.
genericalness. See GENERICNESS.
generic burglary. See BURGLARY.
generic claim. See PATENT CLAIM.
generic drug. See DRUG.
generic-drug law. (1977) A statute that allows pharma
cists to substitute a generic drug for a brand-name drug
under specified conditions . Most states have enacted
generic-drug laws to ensure that less-expensive generic
drugs are available to consumers,
genericide (ja-ner-a-sId). Trademarks. The loss or can
cellation of a trademark that no longer distinguishes
the owner's product from others' products . Generi
cide occurs when a trademark becomes such a house
hold name that the consuming public begins to think
of the mark not as a brand name but as a synonym for
the product itself. Examples of trademarks that have
been"killed" by genericide include aspirin and escala
tor. [Cases: Trademarks G=:;>1166.1
genericism (ja-ner-a-siz-am). See GENERIC NESS.
generic name. (1872) Trademarks. A term that describes
something generally without deSignating the thing's
source or creator, such as the word car or sink . A
generic name cannot be protected as a trademark for
the thing it denotes; e.g., Apple can be a trademark for
computers but not for apples. Also termed generic
term; generic mark; common descriptive name. [Cases:
Trademarks
genericness, n, (20c) The state or condition of being
generic <an affirmative defense ofgeneric ness in a trade
mark suit>. Also termed genericalness; genericism.
generic swap. See plain-vanilla swap under INTEREST
RATE SWAP.
generic term. See GENERIC NAME.
genetic child. See natural child (1) under CHILD.
genetic engineering. (ca. 1951) A method of creating
new life forms and organic matter by gene-splicing and
other techniques . lhe Supreme Court has ruled that
those creations are patentable. Diamond v. Chakrabarty,
447 U.S. 303, 100 S.Ct. 2204 (1980).
genetic father. See biological father under FATHER.
genetic fingerprinting. See DNA IDENTIFICATION.
genetic-marker test. A medical method of testing
tissue samples used in paternity and illegitimacy
cases to determine whether a particular man could be
the father of a child . This test represents a medical
advance over blood-grouping tests. It analyzes DNA
and is much more precise in assessing the probability
of paternity. Abbr. GMT. See PATERNITY TEST. Cf.
BLOOD-GROUPING TEST; HUMAN-LEUKOCYTE ANTIGEN
TEST. [Cases: Children Out-of-Wedlock <:>45,58.]
genetic mother. See biological mother under MOTHER.
genetic parent. See biological parent under PARENT.
Geneva Conventions of 1949 OJ-nee-va). Four inter
national agreements dealing with the protection of
wounded members of the armed forces, the treatment of
prisoners of war, and the protection ofcivilians during
international armed conflicts . Common Article 3 of
the Conventions proclaims certain minimum standards
of treatment that are applicable to noninternational
armed conflicts. The humanitarian-law protection
established in these four agreements was amplified in
1977 by the two Protocols Additional to the Geneva
Conventions. In common parlance, people refer to the
Geneva Convention as if there were just one agreement.
Cf. LAWS OF WAR. [Cases: Treaties <:>8.]
Geneva Phonograms Convention. A 1971 treaty
requiring signatories to protect phonorecord pro
ducers against piracy and the importation of pirated
copies, by copyright protection, unfair-competition
law, or criminal sanctions . The treaty was drafted by
representatives from WIPO and UNESCO to correct
weaknesses in the Rome Convention. Also termed
Convention for the Protection ofProducers ofPhono
grams Against Unauthorized Duplication ofTheir Pho
nograms; Phonograms Convention.
genocide (jen-J-sId). (ca. 1944) Int'llaw. An interna
tional crime involving acts causing serious physical
and mental harm with the intent to destroy, partially
or entirely, a national, ethnic, racial, or religious group .
The Widely ratified Genocide Convention of 1948
defines the crime. The International Criminal Court
has jurisdiction to try those accused ofgenocide. Many
nations also have criminal laws providing punishment
for individuals convicted of genOcide. Cf. ETHNIC
CLEANSING. [Cases: Aliens, Immigration, and Citizen
ship <:>763.]
"The ... draft Convention on the Prevention and Punish
ment of the Crime of Genocide was adopted by the General
Assembly on December 9, 1948 and unanimously recom
mended for adherence to the members of the United Nations. It came into force in October, 1950 .... The term
'genocide' was first proposed by Dr. Lemkin in the course
of the war and incorporated on his suggestion into the
Indictment of the Major German War Criminals. The [U.N.
General] Assembly Resolution on Genocide of December
11. 1946, and the Convention of 1948, are also the result
of a remarkable one-man campaign." Georg Schwarzen
berger, Power PolitiCS: A Study ofInternational Society 634
(2ded.195l).
Genoese lottery (jen-oh-eez or -ees). See LOTTERY.
genotype. (19c) Patents. The genetic makeup ofa living
organism. A patent on living matter must disclose
its genotype rather than just describe its phYSical char
acteristics (phenotype) or behavior. Cf. PHENOTYPE.
[Cases: Patents (;=:c 14.] genotypic, adj.
gens (jenz), n. [Latin] (19c) Roman law. A clan or group
offamilies who share the same name and (supposedly)
a common ancestor; extended family . Members of
a gens are freeborn and possess full civic rights. PI.
gentes.
"A wider group still is the gens, of great importance in early
law though its importance was gone in classical times.
This consisted of all who bore the same nomen, the gentile
name." W.w. Buckland, A Manual ofRoman Private Law61
(2d ed. 1953).
gentes (jen-teez), n. [Latin] (19c) Roman law. Ihe peoples
or nations of the world, particularly the civilized
|
. [Latin] (19c) Roman law. Ihe peoples
or nations of the world, particularly the civilized
peoples.
gentile (jen-tIl). [fro Latin gentilis] Roman law. A member
of a gens. See GENS.
gentium privatum. See private international law under
INTERNATIONAL LAW.
gentleman. (12c) Hist. 1. A man ofnoble or gentle birth
or rank; a man above the rank ofveoman. 2. A man
belonging to the landed gentry. Today the term has
no precise legal meaning.
gentleman's agreement. See GENTLEMEN'S AGREE
MENT.
Gentleman Usher of the Black Rod. English law. An
officer ofthe House ofLords who has various ceremo
nial duties, including the summoning ofthe members
ofthe House ofCommons to the House ofLords when
a bill is to receive royal approvaL. The office dates from
the 14th century.
gentlemen's agreement. (1886) An unwritten agreement
that, while not legally enforceable, is secured by the
good faith and honor of the parties. -Also spelled
gentleman's agreement. [Cases: Contracts <:> L]
gentrification, n. (1973) The restoration and upgrad
ing of a deteriorated or aging urban neighborhood by
middle-class or affluent persons, resulting in increased
property values and often in displacement of lower
income residents. -gentrify, vb.
genuine, adj. (17c) 1. (Of a thing) authentic or real;
having the quality of what a given thing purports to
be or to have <the plaintiff failed to question whether
the exhibits were genuine>. 2. (Of an instrument) free
of forgery or counterfeiting <the bank teller could not
determine whether the signature on the check was
genuine>. UCC 1-201(18).
genuine issue ofmaterial fact. (1938) Civil procedure. In
the law of summary judgments, a triable, substantial, or
real question offact supported by substantial evidence.
-An issue ofthis kind precludes entry of summary
judgment. [Cases: Federal Civil Procedure C=>2470,
2470.1; Judgment C=> 181(2), 185(6).]
genus (jee-nCls or jen-Cls). (16c) A general class compris
ing several species or divisions. -In legal usage, the
terms genus and (sometimes) species invoke the taxo
nomic classification oflife forms in biological science.
For example, patent law is a species within the genus of
intellectual property; burglary is a species within the
genus of crime. In the law of sales, genus referred to
fungibles, while species referred to specific, individual
items. Cf. SPECIES (2).
genus claim. See generic claim under PATDIT CLAIM.
genus nunquam perit (jee-nCls n3n[g]-kwam per-it).
[Latin] Hist. The class never perishes . The phrase
appeared in reference to a quantity of contracted-for
goods of a certain class (rather than a single item), the
destruction of which did not discharge the seller's obli
gation.
geodetic-survey system (jee-Cl-det-ik). (1990) A federally
created land-description method consisting ofnation
wide marks (or benches) made at longitude and latitude
points. 1he geodetic-survey system integrates most of
the real property in the United States into one unified
form of measurement.
geographically descriptive trademark. See TRADE
MARK.
geographic market. See MARKET.
geographic name. See NAME.
geography of crime. See environmental criminology
under CRIMINOLOGY.
Georgia-Pacific analysis. Patents. A IS-factor test for
setting a reasonable royalty in infringement suits .
Among other factors, the test considers what a prudent
licensee would have paid while still being able to earn
a profit. Georgia-Pacific Corp. v. U.S. Plywood Corp.,
318 F. Supp. 1116 (S.D.N.Y. 1970). [Cases: Patents C=>
319(1).]
german (j<Jr-mCln), adj. (14c) Having the same parents
or grandparents; closely related.
brother-german. See BROTHER.
cousin-german. See C01JSIN (1).
sister-german. See SISTER.
germane (jClr-mayn), adj. (14c) Relevant; pertinent <the
caselaw cited in the brief was not germane to the legal
issue pending before the court> . Under parliamen
tary law, debate and amendments are in order only if
they are germane to the motion under consideration.
germanus (jdr-may-nds). [Latin] Roman law. 1. adj.
Having the same father and mother. Seefrater germanus under FRATER. 2. n. A whole brother; a child ofboth of
one's own parents.
gerrymandering (jer-ee-man-dClr-ing or ger-ee-), n.
(1812) 1. Ibe practice of dividing a geographical area
into electoral districts, often of highly irregular shape,
to give one political party an unfair advantage by
diluting the opposition's voting strength . When Mas
sachusetts Governor Elbridge Gerry ran for reelection
in 1812, members of his political party, the Anti-Fed
eralists, altered the state's voting districts to benefit the
party. One newly created district resembled a salaman
der, inspiring a critic to coin the word gerrymander by
combining the governor's name, Gerry, with the ending
of salamander. Gerry was not reelected governor, but
was elected as James Madison's vice preSident. -Also
termed political gerrymandering. [Cases: Constitu
tional Law (>3285,3658(5); Elections (;::-012(6).] 2.
Ihe practice ofdividing any geographical or jurisdic
tional area into political units (such as school districts)
to give some group a special advantage. Also termed
jurisdictional gerrymandering. Ct: REAPPORTIONMENT.
[Cases: Schools C=>32.]- gerrymander, vb.
delineational gerrymandering. Gerrymandering by
varying the districts' shape . There are three kinds of
delineational gerrymandering: cracking (or fractur
ing), packing, and stacking. See CRACKING; PACKING;
STACKING (2).
institutional gerrymandering. Gerrymandering by
means ofvarying the number of representatives per
district.
gersum (g3r-S<lm). HisL 1. Money paid for a thing;
specif., compensation paid by a tenant to a superior on
entering a holding. 2. A penalty or amercement paid
for an offense. -Also spelled garsumme; gersuma;
gersume; grassum. 3. GRESSUME.
gersumarius (jClr-s[y]CI-mair-ee-Cls). Hist. Finable; liable
to be fined at the discretion of a feudal superior . A
villein who gave his daughter in marriage was ger
sumarius -he was liable to pay a fine to the lord.
Geschmacksmuster. Patents. [German] See design patent
under PATENT.
Gestalt factors. The criteria that a court uses in a
minimum-contacts analysis to determine the rea
sonableness of subjecting a nonresident to personal
jurisdiction. -These fairness criteria include (1) the
defendant's burden of making a personal appearance,
(2) the forum state's interest in adjudicating the dispute,
(3) the plaintiff's interest in obtaining convenient and
eftective relief, (4) the judicial system's interest in
arriving at the most effective resolution of the contro
versy, and (5) the common interests of all sovereigns
in promoting substantive social policies. 'these factors
were articulated by the United States Supreme Court
in Burger King Corp. v. Rudzewicz, 471 U.S. 462, 478,
105 S.Ct. 2174, 2185 (1985), but the Court has never
used the term Gestalt factors; it was coined in Donatelli
v. National Hockey League, 893 F.2d 459, 465 (lst Cir.
757 gift
1990). See MINIMUM CONTACTS. [Cases: Courts
12(2.1); Federal Courts ~76.1O.]
gestational carrier. See surrogate mother (1) under
MOTHER.
gestational mother. See birth mother under MOTHER.
gestational surrogacy. See SURROGACY.
gestational surrogate. See surrogate mother (1) under
MOTHER.
gestio (jes-chee-oh), n. [Latin] (I6c) Roman law. 1.
Behavior or conduct. See GESTIO PRO HEREDE. 2. The
management of a thing, esp. a transaction. See NEGO
TIORUM GESTIO. -Also termed GESTION.
negotiorum gestio (ni-goh-shee-or-dm jes-chee-oh).
See NEGOTIORUM GESTIO.
gestio pro haerede (jes-chee-oh proh her-d-dee). [Latin
"behavior as heir") Roman & Hist. Scots law. An
appointed heir's conduct (such as selling or leasing the
decedent's property) that indicates the heir's intent to
receive the inheritance and thereby take on the estate's
debts; more broadly, any behavior as an heir. Also
spelled gestio pro haerede.
gestor (jes-tor), n. [Latin] Roman law. I. One who carries
on a business. 2. NEGOTIORUM GESTOR. PI. gestores.
gestu etfama (jes-t[y)oo et fay-md). [Latin "demeanor
and reputation"] Hist. A writ used by a person who
had been imprisoned because of a poor reputation in
the community to gain release from jail pending the
arrival of justices with commissions of gaol delivery.
See COMMISSION OF GAOL DELIVERY.
gestum (jes-tdm), n. [Latin] Roman law. A deed or an act;
a thing done. Gestum is synonymous with factum.
See FACTUM (2).
gesture. (ISc) A motion of the body calculated to express
a thought or emphasize a certain point <the prosecutor
was known for her dramatic gestures during closing
argument>.
get, n. (l9c) 1. A rabbinical divorce; a Jewish divorce.
2. Under Jewish law, a document Signed by a rabbi to
grant a divorce . Under Jewish law, a Jewish divorce
can be obtained only after the husband has given the
get to the wife, who must voluntarily accept it. Also
spelled gett. Pl. gittin. See rabbinical divorce under
DIVORCE.
get-up. See TRADE DRESS.
gewrit. Hist, A deed, charter, or similar writing.
ghost detainee, See secret detainee under DETAINEE.
ghosting. Ihe assumption of the identity of a deceased
person to conceal one's true identity. Cf. IDENTITY
THEFT.
gibbet (jib-it), n. (13c) Hist. A post with one arm extending
from the top, from which criminals are either executed
by hanging or suspended after death as a warning to
other potential offenders; a type ofgallows.
double gibbet. A gibbet with two arms extending from
its top so that it resembles a capital "1'." gibbet law. See HALIFAX LAW.
GIC. See guaranteed investment contract under INVEST
MENT CONTRACT.
GIFT. abbr. GAMETE INTRAFALLOPIAN TRANSFER.
gift, n. (12c) 1. The voluntary transfer of property to
another without compensation. [Cases: Gifts ~1.]2.
A thing so transferred. gift, vb.
absolute gift. See inter vivos gift.
anatomical gift. (1971) A testamentary donation of
a bodily organ or organs, esp. for transplant or for
medical research. -The procedures for making an
anatomical gift are set forth in the Uniform Anatomi
cal Gift Act, which has been adopted in every state.
[Cases: Dead Bodies
antenuptial gift. See prenuptial gift.
charitable gift. An inter vivos or testamentary donation
to a nonprofit organization for the relief of poverty,
the advancement of education, the advancement of
religion, the promotion of health, governmental, or
municipal purposes, and other purposes the accom
plishment of which is beneficial to the community.
Restatement (Second) ofTrusts 368 (1959). When
the beneficiary is a religious organization or the gift is
intended for a religious purpose, it is sometimes also
termed a pious gift. [Cases: Charities
class gift. (1949) A gift to a group of persons, uncertain
in number at the time ofthe gift but to be ascertained
at a future time, who are all to take in definite pro
portions, the share of each being dependent on the
ultimate number in the group.
''The typical class gift is to 'children,' 'issue,' 'heirs,'
'brothers and Sisters,' 'nieces and nephews,' 'grandchil
dren.' A class gift is one in which the donor intends to
benefit a group or a class of persons, as distinguished
from specific indiViduals; the class gift donor is said to be
'group-minded.' The class gift is one in which the donor
intends that the number of donees, from the time of the
delivery of the instrument of gift in the case of the inter
vivos gift, or from the time of the execution ofthe will in the
case of the testamentary gift, is subject to fluctuation by
way of increase or decrease, or by way of increase only, or
by way of decrease only, depending on the circumstances
of the gift." Thomas F. Bergin & Paul G. Haskell, Preface to
Estates in Land and Future Interests 136 (2d ed. 1984).
completed gift. (1952) A gift that is |
ests 136 (2d ed. 1984).
completed gift. (1952) A gift that is no longer in the
donor's possession and control. Only a completed
gift is taxable under the gift tax.
gift causa mortis (kaw-Zd mor-tis). (18e) A gift made
in contemplation of the donor's imminent death.
The three essentials are that (1) the gift must be made
with a view to the donor's present illness or peril,
(2) the donor must actually die from that illness or
peril, without ever recovering, and (3) there must be
a delivery. Even though causa mortis is the more usual
word order in modern law, the correct Latin phrasing
is mortis causa -hence gift mortis causa. Also
termed donatio causa mortis; donatio mortis causa;
gift in contemplation ofdeath; transfer in contempla
tion ofdeath. See CONTEMPLATION OF DEATH. [Cases:
Gifts G=S3-68.]
758 gift deed
"[Gifts causa mortis] are conditional, like legacies; and it
is essential to them that the donor make them in his last
illness, or in contemplation and expectation of death; and
with reference to their effect after his death, they are good,
notwithstanding a previous will; and if he recovers, the gift
becomes void." 2 James Kent, Commentaries on American
Law *444 (George Comstock ed., 11th ed. 1866).
"A 'gift causa mortis' ... is testamentary, and it is similar
to testamentary disposition in the respect that there
remains with the donor the power to revoke the gift until
his death. In some respects, a gift causa mortis may be said
to resemble a contract, for mutual consent and the concur
rent will of both parties are necessary to the validity of the
transfer." 38A CJ.S. Gifts 85, at 276-77 (1996).
gift in contemplation ofdeath. See gift causa mortis.
gift inter vivos. See inter vivos gift.
gift in trust. (18e) A gift oflegal title to property to
someone who will aet as trustee for the benefit of a
beneficiary.
gift over. (18e) A property gift (esp. by will) that takes
effeet after the expiration ofa preceding estate in the
property (such as a life estate or fee simple determin
able) <to Sarah for life, with gift over to Don in fee>.
[Cases: Wills (:::::614(2,3).]
gift splitting. See split gift.
gratuitous gift. A gift made without consideration, as
most gifts are. _ Strictly speaking, the term looks
redundant, but it answers to the donum gratuitum
ofRoman law.
inter vivos gift (in-tarvl-vohs orvee-vohs). (1848) A gift
ofpersonal property made during the donor's lifetime
and delivered to the donee with the intention ofirre
vocably surrendering control over the property.
Also termed gift inter vivos; lifetime gift; absolute gift
[Cases: Gifts C==' 1-33.]
lifetime gift. See inter vivos gift
manual gift. Civil law. A gift of movable, tangible
property, made by delivery without any formalities.
La. Civ. Code art. 1539.
onerous gift (ohn-a-rds or on-d-ras). A gift: made subject
to certain conditions imposed on the recipient.
pious gift. See charitable gift.
prenuptial gift (pree-nap-shal). (1921) A gift ofproperty
from one spouse to another before marriage. -In
community-property states, prenuptial gifts are
often made to preserve the property's classification
as separate property. -Also termed antenuptial gift.
[Cases: Husband and Wife (;::J250.]
split gift. (1957) Tax. A gift that is made by one spouse
to a third person and that, for gift-tax purposes, both
spouses treat as being made one-half by each spouse;
a gift in which the spouses combine their annual
gift-tax exclusions . A split gift, for example, is
eligible for two annual exclusions of$10,000 each,
or a total of $20,000 for one gift. -Also termed gift
splitting; gift-splitting election. See annual exclusion
under EXCLUSION (1). [Cases: Internal Revenue
4206.10.] substitute gift. (1934) A testamentary gift to one person
in place of another who is unable to take under the
will for some reason. Also termed substitutional
gift
taxable gift. (1922) A gift that, after adjusting for
the annual exclusion and applicable deductions, is
subject to the federal unified transfer tax. IRC (26
USCA) 2503. [Cases: Internal Revenue (:::::4203.10,
4206.10.]
testamentary gift (tes-ta-men-ta-ree or -tree). (18c) A
gift made in a will.
vested gift. (1820) An absolute gift, being neither con
ditional nor contingent, though its use or enjoyment
might not occur until sometime in the future.
gift deed. See DEED.
gift enterprise. (1858) 1. A scheme for the distribution
of items by chance among those who have purchased
shares in the scheme. [Cases: Lotteries (;::J3.] 2. A mer
chant's scheme to increase sales without lowering prices
by giving buyers tickets that carry a chance to win a
prize. _ Gift enterprises are regulated by state law. See
LOTTERY.
gifting circle. See GIFTING CLUB.
gifting club. A type ofpyramid scheme or Ponzi scheme
in which recruits make "gifts" of money to other club
members with the expectation that future recruits will
make "gifts" to the present recruits. -Many gifting
clubs limit membership to women. Club leaders usu.
try to evade income-tax laws by claiming that the
money paid in by a recruit is a tax-free "gift" to a club
member and warning new recruits not to expect "gifts"
in the future. Some states forbid gifting clubs as illegal
pyramid schemes. Other states hold that the dubs are
illegal lotteries. -Also termed gifting circle; sisterhood;
birthday club. See PONZI SCHEME. [Cases: Antitrust and
Trade Regulation
gift inter vivos. See inter vivos gift under GIFT.
gift in trust. See GIFT.
gift over. See GIFT.
gift splitting. See split gift under GIFT.
gift-splitting election. See split g!ft under GIFT.
Gifts to Minors Act. See UNIFORM TRANSFERS TO
MINORS ACT.
gift tax. See TAX.
gift-tax exclusion. See annual exclusion under EXCLU
SION.
gilda mercatoria (gil-d;.) mar-k;.}-tor-ee-;.}). [Law Latin]
Hist. A merchant guild; an incorporated society ofmer
chants having exclusive trading rights within a town.
gild hall. See GUILD HALL (1).
GI loan. See veteran's loan under LOAN.
gUour (gI-Iar). [Law French] Hist. A guiler; a person who
cheats or deceives . Gilour referred to a person who
sold false goods, such as a person who sold pewter as
silver.
759
gilt-edged, adj. (Ofa security) having the highest rating
for safety ofinvestment; exceptionally safe as an invest
ment.
Ginnie Mae (jin-ee may). See GOVERNMENT NATIONAL
MORTGAGE ASSOCIATION.
GIPSA. abbr. GRAIN INSPECTION, PACKERS, AND STOCK
YARD ADMINISTRATION.
girth (gJrth). [Old English] (13c) 1. A measure oflength,
equal to a yard. This term, which was used in Saxon
and early English law, was taken from the circumfer
ence ofa man's body. 2. The area surrounding a church.
3. A place of sanctuary. 4. A band or strap that encir
cles the body of an animal to fasten something (usu. a
saddle) to its back.
gisement 018-or jlz-m;:mt). [Law French] (16c) Archaic.
See AGISTMENT.
giser (jI-SJr), vb. [Law French] Hist. (Of an action) to
lie; to be capable of being brought as a suit in court.
'This verb, in its inflected form gist, appeared in such
phrases as ou assise ne gist point ("when an assise does
not lie"), Ie action bien gist ("the action well lies"), and
gist en Ie bouche ("it lies in the mouth"), and cest action
gist ("this action lies").
gisetaker (jIS-or jIz-tay-br). Archaic. See AGISTER.
gist (jist). (18c) 1. The ground or essence (of a legal
action) <the gist ofthe crime>. 2. 1he main point <she
skimmed the brief to get the gist of it>. This noun
derives from the Law French verb giser "to lie." See
GISER.
gist-of-the-action doctrine. The principle that a plain
tiff who brings a tort claim arising from a contractual
relationship must show that the contract and any con
tractual claim are collateral to the tort claim. -The
doctrine prevents plaintiffs from recasting contract
claims as tort claims. This term is most common in
Pennsylvania but also appears in New Jersey, Delaware,
the Virgin Islands, and elsewhere. [Cases: Action
27(1).)
give, vb. (13c) 1. To voluntarily transfer (property) to
another without compensation <Jack gave his daughter
a car on her birthday>. 2. To confer by a formal act
<the First Amendment gives all citizens the right to
free speech>. 3. To present for another to consider <the
witness gave compelling testimony before the jury>.
4. (Of a jury) to impose or award by verdict <the jury
gave the defendant the death penalty> <the jury gave
the plaintiffSl,OOO in damages>.
give bail, vb. To post security for one's appearance in
court <the court ordered the accused to give bail in the
amount of$10,000>. -Also termed post bail.
give color, vb. Hist. To admit, either expressly or impliedly
by silence, that an opponent's allegations appear to be
meritorious . In common-law pleading, a defendant's
plea of confession and avoidance had to give color to
the plaintiff's allegations in the complaint or the plea
would be fatally defective. See COLOR (2). global fund
give, devise, and bequeath, vb. (17c) To transfer property
by will <I give, devise, and bequeath all the rest, residue,
and remainder of my estate to my beloved daughter
Sarah>. This wording has long been criticized as
redundant. In modern usage, give ordinarily suffices.
See BEQUEST.
given name. See personal name under NAME.
give way, vb. Maritime law. (Of a vessel) to deviate from a
course, or to slow down, in accordance with navigation
rules, so that a second vessel may pass without altering
its course. [Cases: Collision e=.'29, 37.]
giving in payment. Civil law. The act of discharging a
debt by giving something to the creditor (with the cred
itor's consent) other than what was originally called for.
La. Civ. Code art. 2655. _ The phrase is a translation
ofthe French dation en paiement and derives from the
Roman datio in solutum. See DATION EN PAIEMENT. C
ACCORD AND SATISFACTION.
gladius (glay-dee-Js), n. [Latin "sword") Roman law.
The emblem of the emperor's power, esp. the power to
punish criminals. See JUS GLADlI.
glaive (glayv). (14c) Hist. A sword, lance, or horseman's
staff. The glaive was one of the weapons allowed in
a trial by combat.
glamour stock. See growth stock under STOCK.
glass ceiling. (1984) An actual or supposed upper limit
ofprofessional advancement, esp. for women, as a result
of discriminatory practices. [Cases: Civil Rights
1164.]
Glass-Steagall Act. A federal statute that protects bank
depOSitors by restricting the securities-related business
ofcommercial banks, specif. by prohibiting banks from
owning brokerage firms or engaging in the brokerage
business. 12 USCA 378. -Also termed Banking Act
of1933.
glebae ascriptitii. See ADSCRIPTl GLEBAE.
glebe (gleeb). [fro Latin gleba "clod of earth") (15c) 1.
Roman law. The soil of an inheritance; an agrarian
estate. Servi addicti glebae ("slaves bound to the land")
were serfs attached to and passing with the estate. 2.
Eccles. law. Land possessed as part of the endowment
or revenue ofa church or ecclesiastical benefice.
"Diocesan glebe land forms the largest section of ecclesi
astical conveyancing work by virtue of the large number
of glebe properties which are held in each diocese. Such
land is governed primarily by the Endowments and Glebe
Measure 1976 ... ,which in technical terms defines
'glebe land' as 'land vested in the incumbent of a benefice
(when the benefice is full) as part of the endowments of
the benefice other than parsonage land'; and 'diocesan
glebe land' as 'glebe land acquired by a diocesan board of
finance under any provision of this Measure and any other
land acquired by such a board, being land which by virtue
of, or of any enactment amended by, a provision of this
Measure is to be held as part of the diocesan glebe land
of the diocese.'" David Rees, Ecclesiastical Conveyancing
8 (1989).
global fund. See MUTUAL FUND.
Globe election |
Conveyancing
8 (1989).
global fund. See MUTUAL FUND.
Globe election. Labor law. The procedure by which a
group ofemployees is given the opportunity to decide
whether to be represented as a distinct group or to be
represented as a part of a larger, existing unit. Globe
Machine & Stamping Co., 3 NLRB 294 (1937). -Also
termed self-determination election.
glos (glos), n. [Latin] Roman law. One's husband's
sister.
gloss, n. (l6c) 1. A note inserted between the lines or in
the margin of a text to explain a difficult or obscure
word in the text <this edition ofShakespeare's works is
bolstered by its many glosses on Elizabethan English>.
2. A collection ofexplanations; a glossary <the horn
book's copious gloss>. 3. (usu. pl.) A pronouncement
about meaning; an interpretation <the statutory
language needs no gloss>.
glossators (glah-say-t<lrz). (I5c) (usu. cap.) A group of
Italian jurisconsults who, from the 11th to the 13th
centuries, were primarily responsible for the revival
of the study of Roman law. -They originally worked
by glOSSing (that is, explaining in the margin) difficult
or unclear passages, and gradually their writings blos
somed into full-blown commentaries and discussions.
See POSTGLOSSATORS. glossatorial, adj.
Gloucester, Statute of (glos-tdr). Hist. A statute that
allowed a successful plaintiff to recover costs in addition
to damages. _ The statute was enacted in Gloucester. 6
Edw. I, ch. 1 (1278).
glove silver. Hist. Money given as an incentive or reward
to a court officer, esp. money given by a sheriff to an
assize official when no prisoners were left by the assize
for execution. _ The name derives from the practice
of giving money to servants, ostensibly to buy gloves
with.
GMI. abbr. GUILTY BUT MENTALLY ILL.
GMT. abbr. GENETIC-MARKER TEST.
GNMA. abbr. GOVERNMENT NATIONAL MORTGAGE ASSO
CIATION.
GNP. abbr. GROSS NATIONAL PRODUCT.
go bail, vb. Archaic. To act as a surety on a bail bond.
Godbote. See BOTE (2).
God-gild. Hist. Money paid or something offered for the
service of God; esp., a payment of money or a gift (for
example, land) to a church. See FRANKALMOIN.
godparent. (1865) Eccles. law. A person, usu. a close
family friend or relative, who accepts a parent's invita
tion to assume part ofthe responsibility for the reli
gious education ofa newly baptized child. -Often, too,
there is an understanding that the godparent would
help support and rear the child if the parents were to
die or become incapacitated. The spiritual parent
child relationship creates a canonical impediment
to marriage. -Also termed (more specifically) god
mother; godfather; (in eccles. law) sponsor. God's penny. Hist. Earnest money; a small sum paid on
the striking ofa bargain. -Also termed denarius Dei;
earnest-penny;godpenny. See ARRA.
"It is among the merchants that the giving of earnest
first ... becomes a form which binds both buyer and
seller in a contract of sale. To all appearances this change
was not accomplished without the intermediation of a reli
gious idea. All over western Europe the earnest becomes
known as the God's penny or Holy Ghost's penny (denarius
Dei) .... " 2 Frederick Pollock &. Frederic W. Maitland, The
History ofEnglish Law Before the Time ofEdward 1208 (2d
ed.1899).
go forward, vb. (1964) To commence or carryon with the
presentation of a case in court <after the lunch recess,
the judge instructed the plaintiff to go forward with
its case>.
go hence without day. (18c) (Of a defendant to a lawsuit)
to be finished with legal proceedings without any
further settings on the court's calendar. -Thus, a
defendant who "goes hence without day" succeeds in
getting a case finally resolved, usu. by dismissal. The
phrase derives from the Law French phrase aller sans
jour, and over time defendants came to use it to request
that the case against them be dismissed without the
necessity of a day in court. -Sometimes shortened to
go without day; without day. See SINE DIE.
going-and-coming rule. (1927) 1. 1he principle that
torts committed by an employee while commuting to
or from work are generally outside the scope ofemploy
ment. [Cases: Labor and Employment (;:::>3045.) 2. The
principle that denies workers'-compensation benefits to
an employee injured while commuting to or from work.
ef. COMMERCIAL-TRAVELER RULE. [Cases: Workers'
Compensation (;:::>7l9-757.]
going concern. (1881) A commercial enterprise actively
engaging in business with the expectation ofindefinite
continuance. -Also termed going business.
going-concern value. See VALUE (2).
going price, n. (I8c) The prevailing or current market
value ofsomething. Seefair market value under VALUE
(2).
going private. The process of changing a public cor
poration into a close corporation by terminating the
corporation's status with the SEC as a publicly held
corporation and by having its outstanding publicly
held shares acquired by a single shareholder or a small
group. [Cases: Securities Regulation C::~'60.23.1
gOing-private transaction. See FREEZE OUT.
going public. The process of a company's selling stock
to the investing public for the first time (after filing a
registration statement under applicable securities laws),
thereby becoming a public corporation. [Cases: Securi
ties Regulation G~)11.10-11.14.]
going through the bar. Hist. A daily process in which
the court would ask all barristers present whether they
had motions to present. _ Ihis practice, which ended
in 1873, was conducted according to seniority, except
for the last day of a term, when the junior barristers
were asked first.
761
going to the country. Hist. The act of requesting a
jury trial. - A defendant was said to be "going to the
country" by concluding a pleading with the phrase
"and of this he puts himself upon the country." Simi
larly, a plaintiff would conclude a pleading with the
phrase "and this the plaintiff prays may be enquired of
by the country." Also termed go to the country. Cf.
CONCLt;SION TO THE COUNTRY.
going value. See going-concern value under VALUE (2).
going witness. See WITNESS.
gold bond. See BOND (3).
gold certificate. Hist. A bank note issued by the United
States Treasury from 1863 to 1934 and redeemable in
gold. _ When'the United States abandoned the gold
standard in 1933, Congress declared ownership of
gold certificates illegal even though the Treasury con
tinued to issue them until mid-1934. The certificates
were legalized again in 1964, but they can no longer be
redeemed for gold. They now have the same status as
Federal Reserve notes, which are not redeemable for
precious metal. Cf. FEDERAL RESERVE NOTE; SILVER
CERTIFICATE. [Cases: United States (;::::>34.]
gold clause. A provision calling for payment in gold.
Gold clauses, which are now void, were once used in
contracts, bonds, and mortgages.
golden handcuffs. Remuneration set at such a high level
that the employee earning it cannot leave the firm or
company and receive commensurate pay elsewhere.
-As a result, the employee often stays in the position
even if it is otherwise unrewarding or unpleasant.
golden handshake. Corporations. A generous compensa
tion package offered to an employee, usu. as an induce
ment to retire or upon dismissal.
golden parachute. (1981) Corporations. An employ
ment-contract provision that grants an upper-level
executive lucrative severance benefits -including
long-term salary guarantees or bonuses -if control
ofthe company changes hands (as by a merger). Cf. TIN
PARACHUTE. [Cases: Corporations (;::::>308(3).]
"Key executives may be provided with significant employ
ment contract clauses that are triggered only by a change
in the firm's control through a sale, merger, acquiSition,
or takeover. These contract clauses are commonly termed
golden parachutes. and they generally provide that if
control over the employer's business occurs and the new
management terminates the executive. additional compen
sation will be received .... Golden parachutes are useful
in providing longterm incentives for executives to enter
industries in which takeover chances are above average.
Generally, golden parachutes do not violate public policy."
Kurt H. Decker & H. Thomas Felix II, Drafting and Revising
Employment Contracts 3.33, at 84 (1991).
golden rule. The principle that, in construing written
instruments, a court should adhere to the grammatical
and ordinary sense ofthe words unless that adherence
would lead to some manifest absurdity; esp., in statu
tory construction, the principle that ifa statute's literal
meaning would lead to an absurd or unjust result, or
even to an inconsistency within the statute itself, the
statute should be interpreted in a way that avoids such I
i
i good delivery
a result or inconsistency. -Also termed Baron Parke's
rule. Cf. ABSURDITY; MISCHIEF RULE; PLAIN-MEANING
RULE; EQUITY-OF-THE-STATUTE RULE. [Cases: Statutes
(;::::> 181(2), 189.]
"[Tlhe 'golden' rule ... allows for a departure from the
literal rule when the application of the statutory words in
the ordinary sense would be repugnant to or inconsistent
with some other provision in the statute or even when it
would lead to what the court considers to be an absurdity.
The usual consequence of applying the golden rule is that
words which are in the statute are ignored or words which
are not there are read in. The scope of the golden rule is
debatable, particularly so far as the meaning of an 'absur
dity' is concerned." Rupert Cross, Statutory Interpretation
14 (1976).
golden-rule argument. A jury argument in which a
lawyer asks the jurors to reach a verdict by imagining
themselves or someone they care about in the place of
the injured plaintiff or crime victim. _ Because golden
rule arguments ask the jurors to become advocates
for the plaintiff or victim and to ignore their obliga
tion to exercise calm and reasonable judgment, these
arguments are Widely condemned and are considered
improper in most states. [Cases: Trial (;::::> 125(1).]
goldsmiths' notes. Hist. Bankers' cash notes; promis
sory notes given by bankers to customers as acknowl
edgments of the receipt of money. -This term derives
from the London banking business, which originally
was transacted by goldsmiths.
gold standard. (19c) A monetary system in which currency
is convertible into its legal equivalent in gold or gold coin.
-The United States adopted the gold standard in 1900
and abandoned it in 1934. Cf. PAPER STANDARD.
good, adj. (bef. 12c) 1. Sound or reliable <a good invest
ment>. 2. Valid, effectual, and enforceable; sufficient
under the law <good title>.
good, n. See GOODS.
good and lawful fence. See LAWFUL FENCE.
good and merchantable abstract oftitle. See ABSTRACT
OF TITLE.
good and valuable consideration. See valuable consid
eration under CONSIDERATION (1).
good and workmanlike. (18c) (Of a product or service)
characterized by quality craftsmanship; constructed or
performed in a skillful way or method <the house was
built in a good and workmanlike manner>.
good behavior. (16c) 1. A standard by which judges are
considered fit to continue their tenure, consisting in the
avoicance of criminal behavior. [Cases: Judges (;::::>7.]
2. Orderly conduct, which in the context of penal law
allows a prisoner to reduce the time spent in prison. Cf.
good time under TIME. [Cases: Prisons (;=='243.]
good cause. See CAUSE (2).
good cause shown. See good cause under CAUSE (2).
good consideration. See CONSIDERATION (1).
good deed. See DEED.
good delivery. See DELIVERY.
good faith, n. (lSc) A state of mind consisting in (1)
honesty in belief or purpose, (2) faithfulness to one's
duty or obligation, (3) observance of reasonable com
mercial standards of fair dealing in a given trade or
business, or (4) absence of intent to defraud or to seek
unconscionable advantage. -Also termed bona fides.
Cf. BAD FAITH. good-faith, adj.
'The phrase 'good faith' is used in a variety of contexts,
and its meaning varies somewhat with the context. Good
faith performance or enforcement of a contract empha
sizes faithfulness to an agreed common purpose and con
sistency with thejustified expectations of the other party;
it excludes a variety of types of conduct characterized
as involving 'bad faith' because they violate community
standards of decency, fairness or reasonableness. The
appropriate remedy for a breach of the duty of good faith
also varies with the circumstances." Restatement (Second)
of Contracts 205 cmt. a (1979).
"[Glood faith is an elusive idea, taking on different
meanings and emphases as we move from one context to
another -whether the |
is an elusive idea, taking on different
meanings and emphases as we move from one context to
another -whether the particular context is supplied by the
type of legal system (e.g., common law, civilian, or hybrid).
the type of contract (e.g., commercial or consumer), or the
nature of the subject matter of the contract (e.g., insur
ance, employment, sale of goods, financial services, and
so on)." Roger Brownsword et aI., "Good Faith in Contract,"
in Good Faith in Contract: Concept and Context 1, 3 (Roger
Brownsword ed., 1999).
good-faith bargaining. Labor law. Negotiations between
an employer and a representative of employees, usu. a
union, in which both parties meet and confer at reason
able times with open minds and with a view to reaching
an agreement. The National Labor Relations Act
requires good-faith bargaining, and failure to bargain
in good faith is considered an unfair labor practice.
29 USCA 151-169. See UNFAIR LABOR PRACTICE.
[Cases: Labor and Employment C=:> 11 14.]
good-faith exception. (1980) Criminal procedure. An
exception to the exclUSionary rule whereby evidence
obtained under a warrant later found to be invalid (esp.
because it is not supported by probable cause) is none
theless admissible if the police reasonably relied on
the notion that the warrant was valid . The Supreme
Court adopted the good-faith exception in United
States v. Leon, 468 U.S. 897, 104 S.Ct. 3405 (1984).
[Cases: Criminal Law C=,394.4(6).]
good-faith improver. A person who makes improve
ments to real property while actually and reasonably
believing himself or herself to be the owner or lawful
occupant. The improver may be entitled to recover
the value ofthe improvements from the true owner or
to remove them. See IMPROVEMENT. [Cases: Improve
ments C=:>4(2).]
good-faith margin. See MARGIN.
good-faith purchaser. See bona fide purchaser under
PURCHASER (1).
good-guy clause. See good-guy guaranty under
GUARANTY.
good-guy guaranty, See GUARANTY.
good health. Insurance. A state of reasonable healthi
ness; a state ofhealth free from serious disease . Good health, a phrase often appearing in life-insurance
policies, does not mean perfect health. Also termed
sound health. [Cases: Insurance 3003(8).]
"As used in poliCies of insurance, there is no material differ
ence between the terms 'sound health' and 'good health,'
and generally it appears that the two terms are consid
ered to be synonymous. Such expressions are comparative
terms, and the rule followed generally is that the term
'good health' or 'sound health,' when used in an insurance
contract, means that the applicant has no grave, important,
or serious disease, and is free from any ailment that serio
ously affects the general soundness or healthfulness of his
system." 43 Am.Jur. 2d Insurance 1061, at 1069 (1982).
good jury. See special jury under TURY.
good moral character, n. (18c) 1. A pattern of behavior
that is consistent with the community's current
ethical standards and that shows an absence of deceit
or morally reprehensible conduct . An alien seeking
to be naturalized must show good moral character in
the five years preceding the petition for naturalization.
[Cases: Aliens, Immigration, and Citizenship C=:>703.]
2. A pattern of behavior conforming to a profession'S
ethical standards and showing an absence of moral tur
pitude. Good moral character is usu. a requirement
ofpersons applying to practice a profeSSion such as law
or medicine. [Cases: Licenses C=:>20.]
good offices. Int'llaw. The involvement of one or more
countries or an international organization in a dispute
between other countries with the aim of contributing
to its settlement or at least easing relations between the
disputing countries.
good ofthe order. Parliamentary law. A time scheduled,
usu. late in a meeting, for informal announcements,
comments, and suggestions that do not seek the meet
ing's immediate action. -Also termed general good
and welfare; open forum; open microphone.
Goodright. Rist. A name sometimes used as a fictitious
plaintiff in an ejectment action . "John Doe" was used
more frequently. -Also termed Goodtitle. Cf. JOHN
DOE.
goods. (bef. 12c) I. Tangible or movable personal
property other than money; esp., articles of trade or
items ofmerchandise <goods and services> . lhe sale
of goods is governed by Article 2 of the UCC. [Cases:
Sales 10.] 2. Things that have value, whether
tangible or not <the importance ofsocial goods varies
from society to society>.
"'Goods' means all things (including specially manufactured
goods) which are movable at the time of identification to
the contract for sale other than the money in which the
price is to be paid, investment securities, (Article 8), and
things in action. 'Goods' also includes the unborn young
of animals and growing crops and other identified things
attached to realty as described in the section on goods to
be severed from realty (Section 2107)." UCC 2-lO5(1).
bulky goods. Goods that are obviously difficult to
move because of their nature, their number, or their
location.
capital goods. Goods (such as equipment and machin
ery) used for the production of other goods or
services. -Also termed industrial goods.
763 goodwill
consumer goods. Goods bought or used primarily for
personal, family, or household purposes, and not for
resale or for producing other goods. UCC 9-102(23).
[Cases: Secured Transactions C~l5.J
customers' goods. Insurance. Goods belonging to the
customers ofa casualty-insurance policyholder; goods
held by a policyholder as a bailee.
distressed goods. Goods sold at unusually low prices
or at a loss.
durable goods. Consumer goods that are designed to
be used repeatedly over a long period, such as auto
mobiles or refrigerators. -Also termed durables;
hard goods.
fungible goods (f;m-jd-b<ll). Goods that are interchange
able with one another; goods that, by nature or trade
usage, are the equivalent of any other like unit, such
as coffee or grain. UCC l-201(b)(l8).
future goods. Goods that will come into being, such
as those yet to be manufactured; goods that are not
both existing and identified. A purported present
sale offuture goods or any interest in them operates
as a contract to sell. UCC 2-105(2).
gray-market goods. See PARALLEL IMPORTS.
hard goods. See durable goods.
household goods. Goods that are used in connection
with a home . 111is term usu. arises when a ware
houser claims a lien on what he or she asserts are
"household" goods. According to the UCC, a ware
houser may claim a lien on a depositor's furniture,
furnishings, and personal effects that are used in a
dwelling. "GCC 7-209(d).
industrial goods. See capital goods.
mobile goods. Goods that are normally used in more
than one jurisdiction (such as shipping containers
and road-construction machinery) and that are held
by the debtor as equipment or leased by the debtor to
others. Under previous drafts ofthe Uniform Com
mercial Code, the procedure for perfecting a security
interest in mobile goods was generally defined by
the law of the state where the debtor is located. The
current UCC does not distinguish mobile goods. See
ordinary goods. DCC 9-103(3).
nonconforming goods. Goods that fail to meet con
tractual specifications, allowing the buyer to reject
the tender ofthe goods or to revoke their acceptance.
DCC 2-601, 2-608. See PERFECT-TENDER RULE.
[Cases: Sales C:::> 119, 166(1).J
ordinary goods. Goods that are anything other than
mobile goods, minerals, or goods covered by a cer
tificate oftitle. UCC 9-103(l)(a). The current UCC
does not distinguish between ordinary and mobile
goods. [Cases: Secured Transactions C=:::' 14.]
prize goods. Goods captured at sea during wartime.
soft goods. Consumer goods (such as clothing) that are
not durable goods. Good Samaritan action.!. A deed performed gratu
itously by a person to help another who is in peril.
Also termed Good Samaritan act. See GOOD SAMARITAN
DOCTRINE; GOOD SAMARITAN LAW. 2. A lawsuit brought
by a person or group for the benefit of all or part of a
community.
Good Samaritan doctrine (s<l-mar-i-tdn). (l952) Torts.
The principle that a person who is injured while
attempting to aid another in imminent danger, and
who then sues the one whose negligence created the
danger, will not be charged with contributory negli
gence unless the rescue attempt is an unreasonable
one or the rescuer acts unreasonably in performing the
attempted rescue. Cf. EMERGENCY DOCTRINE; RESCUE
DOCTRINE; LOST-CHANCE DOCTRINE. [Cases: Negli
gence C~510(3).J
good-samaritan law. (l965) A statute that exempts
from liability a person (such as an off-duty physician)
who voluntarily renders aid to another in imminent
danger but negligently causes injury while rendering
the aid. Some form of good-samaritan legislation
has been enacted in all 50 states and in the District
ofColumbia. -Also written Good Samaritan law.
Also termed good-samaritan statute. Cf. GOOD SAMARI
TAN DOCTRINE. [Cases: Health C=:::'769; Negligence
284.]
"The so-called 'Good Samaritan Statutes' ... do not require
aid to be given. They merely encourage doctors to stop
and give aid to strangers in emergency situations by pro
viding that no physician who in good faith renders such
aid shall be liable in civil damages as a result of acts or
omissions in rendering such aid. Some states have enacted
statutes that require a person who is able to do so with no
danger or peril to himself to come to the aid of another
who is exposed to grave physical harm." Rollin M. Perkins
& Ronald N. Boyce, Criminal Law 661 (3d ed. 1982),
goods and chattels (chat-<Ilz), n. (16c) Loosely, personal
property of any kind; occasionally, tangible personal
property only. -Also termed goods and effects; goods
and merchandise.
good-soldier defense. An excuse theory based on the
assertion that a defendant was following orders, esp.
of a military or corporate superior. The term is a
derisive label rather than a valid defense. Following
an order does not relieve a defendant of responsibility
for wrongful acts unless there are circumstances that
would amount to coercion.
good time. See TIME.
good-time law. A statute allOWing a prisoner's sentence
to be reduced by a stated number of days for each
month or year ofgood behavior while incarcerated.
Also termed good-time statute.
good title. See TITLE (2).
goodwill. (bef. 12c) A business's reputation, patronage,
and other intangible assets that are considered when
appraising the business, esp. for purchase; the ability
to earn income in excess of the income that would be
expected from the business viewed as a mere collection
ofassets. Because an established business's trademark
or servicemark is a symbol of goodwill, trademark
goose case 764
infringement is a form oftheft: ofgoodwill. By the same
token, when a trademark is assigned, the goodwill that
it carries is also assigned. -Also written good will.
Also termed enterprise goodwill; commercial goodwill;
practice goodwill; economic goodwill. Cf. going-concern
value under VALUE (2). [Cases: Good Will C;:)1,
"[Goodwill] is only another name for reputation, credit,
honesty, fair name, reliability." Harry D. Nims, The Law of
Unfair Competition and Trade-Marks 36 (1929).
"Good will is to be distinguished from that element of value
referred to variously as going-concern value, gOing value,
or going business. Although some courts have stated that
the difference is merely technical and that it is unimportant
to attempt to separate these intangibles, it is generally
held that going-concern value is that which inheres in a
plant of an established business." 38 Am. Jur. 2d Good Will
2, at 913 (1968).
individual goodwill. See personal goodwill.
personal goodwill. Goodwill attributable to an indi
vidual's skills, knowledge, efforts, training, or reputa
tion in making a business successful. Also termed
professional goodwill; separate goodwill; individual
goodwill.
professional goodwill. See personal goodwill.
separate goodwill. See personal goodwill.
goose case. See WHITEHORSE CASE.
goosehorn, n. Slang. A bawdy house; a house ofprostitu
tion. See DISORDERLY HOUSE.
gore (gor), n. (bef. 12c) 1. Hist. A small, narrow slip of
land. 2. A small (often triangular) piece of land, such
as may be left between surveys that do not close. 3. In
some New England states (such as Maine and Vermont),
a county's subdivision that has little population and
thus is not organized as a town.
Gothland sea laws. See LAWS OF VISBY.
go to protest. (Ofcommercial paper) to be dishonored
by nonpayment or nonacceptance <the draft: will go to
protest>. See DISHONOR (1); PRO |
onored
by nonpayment or nonacceptance <the draft: will go to
protest>. See DISHONOR (1); PROTEST (2).
go to the country. See GOING TO THE COUNTRY.
govern, vb. (l4c) (Of a precedent) to control a point in
issue <the Smith case will govern the outcome of the
appeal>.
governing body. 1. GOVERNMENT (2). 2. A group of(esp.
corporate) officers or persons having ultimate control
<the board ofdirectors is the governing body ofXYZ,
Inc.>.
governing document. See DOCUMENT.
government. (l4c) l. The structure of principles and
rules determining how a state or organization is regu
lated. 2. The sovereign power in a nation or state. 3. An
organization through which a body ofpeople exercises
political authority; the machinery by which sovereign
power is expressed <the Canadian government> . In
this sense, the term refers collectively to the political
organs ofa country regardless oftheir function or level,
and regardless ofthe subject matter they deal with. Cf.
NATION; STATE. central government. See federal government (1).
de facto government (di fak-toh). 1. A government that
has taken over the regular government and exercises
sovereignty over a nation. 2. An independent gov
ernment established and exercised by a group of a
country's inhabitants who have separated themselves
from the parent state. -Also termed government de
facto.
de jure government. A functioning government that
is legally established. -Also termed government de
jure.
federal government. 1. A national government that
exercises some degree ofcontrol over smaller political
units that have surrendered some degree ofpower in
exchange for the right to participate in national politi
cal matters. -Also termed (in federal states) central
government. 2. The U.S. government. Also termed
national government. [Cases: United States C=~1.]
government de facto. See de facto government.
government de jure. See de jure government.
local government. The government of a particular
locality, such as a city, county, or parish; a governing
body at a lower level than the state government.
The term includes a school district, fire district, trans
portation authority, and any other special-purpose
district or authority. Also termed municipal gov
ernment. [Cases: Municipal Corporations C=6.]
mixed government. A government containing a blend
offorms, as in democracy and monarchy.
municipal government. See local government.
national government. 1. See NATIONAL GOVERNMENT.
2. Seefederal government (2).
proprietary government. Hist. A government granted
by the Crown to an individual, in the nature of a
feudatory principality, with powers of legislation
formerly belonging to the owner ofa county palatine.
Cf. COUNTY PALATINE.
provisional government. A government temporarily
established to govern until a permanent one is orga
nized to replace it.
republican government. A government in the repub
lican form; specif., a government by representatives
chosen by the people. [Cases: States C::::>4.3.]
state government. The government of a state of the
United States. [Cases: States C::::> 1.]
4. The executive branch ofthe U.S. government. 5. lhe
prosecutors in a given criminal case <the government
has objected to the introduction of that evidence>. 6.
An academic course devoted to the study of govern
ment; political science <Bridges is enrolled in Govern
ment 101>.
government agency. See AGENCY (3).
government-agency defense. Torts. An affirmative
defense that immunizes a contractor from liability
upon proof that the contractor acted on the govern
ment's behalf as an agent or as a government officer.
165 government-in-exile
-This defense is extremely limited because of the dif
ficulty ofestablishing the government-agent relation
ship. See Yearsley v. WA. Ross Constr. Co., 309 U.S. 18,
20-22,60 S. Ct. 413, 414-15 (1940). Cf. GOVERNMENT
CONTRACTOR DEFENSE; CONTRACT-SPECIFICA nON
DEFENSE.
government-agency security. See government security
under SECURITY.
government agent. See AGENT (2).
governmental act. See GOVERNMENTAL F1:NCTION.
governmental activity. See GOVERNMENTAL FUNCTION.
governmental employee benefit plan. See governmental
plan under EMPLOYEE BENEFIT PLAN.
governmental enterprise. See ENTERPRISE.
governmental function. (1817) Torts. A government
agency's conduct that is expressly or impliedly mandated
or authorized by constitution, statute, or other law and
that is carried out for the benefit of the general public.
-Generally, a governmental entity is immune from
tort liability for governmental acts. -Also termed
governmental act; governmental activity. See PUBLIC
FUNCTION TEST. Cf. PROPRIETARY FUNCTION. [Cases:
Municipal Corporations (;:::>724.)
"[A]ctivities of police or firefighters, though tortious, are
usually considered governmental in the sense that they
involve the kind of power expected of the government,
even if its exercise in the specific case is wrongful. The
city is immune as to such activities for this reason. On the
other hand, if the city operates a local electric or water
company for which fees are charged, this looks very much
like private enterprise and is usually considered proprio
etary.... The difficult distinction between governmental
and proprietary functions is even more troubling where
the city's conduct combines both kinds of function at
once. For example, operation of a sanitary sewer may be
deemed governmental, but operation of a storm sewer
may be deemed proprietary." Prosser and Keeton on the
Law of Torts 131, at 1053-54 (W. Page Keeton ed., 5th
ed. 1984).
governmental-function theory. (1936) Constitutional
law. A principle by which private conduct is charac
terized as state action, esp. for due-process and equal
protection purposes, when a private party is exercising
a public function. _ Under this theory, for example, a
political party (which is a private entity) cannot exclude
voters from primary elections on the basis of race.
Also termed public-function rationale. [Cases: Civil
Rights 1326(4,7); Constitutional Law C:::>213(4),
254(4).)
governmental immunity. See sovereign immunity under
IMMUNITY (1).
governmental instrumentality. (1854) A constitution
ally or legislatively created agency that is immune
from certain kinds ofliability, as for taxes or punitive
damages. [Cases: United States
governmental-interest-analysis technique. See INTER
EST-ANALYSIS TECH:-IIQUE.
governmental plan. See EMPLOYEE BENEFIT PLAN.
governmental secret. See STATE SECRET. governmental trust. See TRUST.
governmental unit. A subdivision, agency, department,
county, parish, municipality, or other unit of the gov
ernment of a countrv or a state . The term includes an
organization with a'separate corporate existence only
if the organization can legally issue debt obligations on
which interest is exempt from income taxation under
national law. UCC 9-102(a)(45). [Cases: Municipal
Corporations C:::>6.)
government-annuity society. Hist. One ofseveral orga
nizations formed in England to enable the working
class to provide for themselves by purchasing, on
advantageous terms, a government annuity for life or
for a term ofyears.
government bond. 1. See savings bond under BOND (3).
2. See government security under SECURITY.
government contract. See CONTRACT.
government-contractor defense. An affirmative defense
that immunizes a government contractor from civil
liability under state law when the contractor complies
with government specifications. -Immunization is
extended when two conditions are satisfied: (1) the
supplier warned the government about any dangers
presented by the goods about which the supplier had
knowledge but the government did not, and (2) the
government itself is immune from liability under the
Feres doctrine. Essentially, this federal common-law
defense, which has been applied in cases ofnegligence,
strict liability, and breach ofwarranty, extends sover
eign immunity over the contractor. The leading case
on this defense is Boyle v. United Techs. Corp., 487
U.S. 500, 108 S.Ct. 2510 (1988). Also termed Boyle
defense; government-contract defense; government
contract-specification defense; (in military context)
military-contractor defense. See FERES DOCTRINE. Cf.
GOVERNMENT-AGENCY DEFENSE. [Cases: Aviation
13; Products Liability
government-contract-specification defense. See GOV
ERNMENT-COKTRACTOR DEFENSE.
government-controlled corporation. See quasi-govern
mental agency under AGENCY (3).
government corporation. See public corporation (3)
under CORPORATION.
government de facto. See de facto government under
GOVERNMENT.
government de jure. See de jure government under GOV
ERNMENT.
government enterprise. See governmental enterprise
under ENTERPRISE.
government immunity. See sovereign immunity under
IMMUNITY (1).
government-in-exile. An individual or group of indi
viduals residing in a foreign country while (1) claiming
supreme authority over a country, (2) being recognized
by the hosting country as the supreme authority over
that other country, and (3) being organized to perform
766 government insurance
and actually performing some acts of state on behalf
of the home country.
government insurance. See INSURANCE.
government land. See public land under LAND.
Government National Mortgage Association. A fed
erally owned corporation in the U.S. Department
of Housing and Urban Development responsible for
guaranteeing mortgage-backed securities composed
of FHA-insured or VA-guaranteed mortgage loans .
The Association purchases, on the secondary market,
residential mortgages originated by local lenders; it
then issues federally insured securities backed by these
mortgages. -Abbr. GNMA. Also termed Ginnie
Mae. [Cases: United States ~53(9).]
government oflaws. The doctrine that government must
operate according to established, consistent legal prin
ciples and not according to the interests of those who
happen to be in power at a given time; esp., the doctrine
that judicial decisions must be based on the law, regard
less ofthe character of the litigants or the personal pre
dilections ofthe judge.
government plan. See governmental plan under EM
PLOYEE BENEFIT PLAN.
Government Printing Office. An office in the legisla
tive branch of the federal government responsible for
printing and distributing congressional publications
and publications ofother agencies ofthe United States
government. The Office is supervised by the Congres
sional Joint Committee on Printing. It began operating
in 1860. Abbr. GPO.
government secret. See STATE SECRET.
government-securities interdealer broker. See BROKER.
government security. See SECURITY.
government survey. See SURVEY.
government-survey system. A land-description method
that divides the United States into checks or tracts of
ground, which are further broken down into smaller
descriptions, such as metes and bounds.
government tort. See TORT.
governor. (14c) The chief executive official of a U.S. state .
Governors are elected and usu. serve a two-or four
year term. [Cases: States
go without day. See GO HENCE WITHOUT DAY.
GPARM. See graduated-payment adjustable-rate
mortgage under MORTGAGE.
GPO. abbr. GOVERNMENT PRINTING OFFICE.
grab law. (1884) The various means of debt collection
involving remedies outside the scope of federal bank
ruptcy law, such as attachment and garnishment;
aggressive collection practices. [Cases: Attachment ~
1; Garnishment ~1.]
grace period. (1945) 1. A period of extra time allowed for
taking some required action (such as making payment)
without incurring the usual penalty for being late .
Insurance policies typically provide for a grace period of 30 days beyond the premium's due date, during
which the premium may be paid without the policy
being canceled. And Article 9 of the UCC provides for
a lO-day grace period, after the collateral is received,
during which a purchase-money security interest
must be perfected to have priority over any conflicting
security interests. -Also termed days ofgrace; grace
days. 2. Patents. The one-year interval allowed by the
U.S. Patent Act between the time an invention is used
in public, sold, offered for sale, or disclosed in a publi
cation and the time the inventor applies for a patent .
Most countries follow the doctrine of absolute priority
and do not allow a grace period. Sometimes short
ened to grace. Cf. STATUTORY BAR; absolute novelty
under NOVELTY.
gradatim (gr<l-day-t<lm), adv. (16c) [Latin] Roman law.
Gradually; by successive degrees of relationship .
Gradatim refers to the step-by-step admission of succes
sors when there is no heir next in line. See GRADUS.
grade, n. Criminal law. An incremental step in the scale
of punishments for offenses, based on a particular
offense's seriousness <several grades of murder>. See
DEGREE (2).
graded offense. See OFFENSE (1).
grading. The fixing of a criminal offense at a level of
seriousness, such as first degree, second degree, |
1).
grading. The fixing of a criminal offense at a level of
seriousness, such as first degree, second degree, or third
degree (in reference to a felony), or Class A, Class B, or
Class C (in reference to a misdemeanor). See DEGREE
OF CRIME. [Cases: Criminal Law
gradual method. An intestate-inheritance scheme that
gives priority to relatives who are nearest in degree
of consanguinity . This method dates back to the
English Statute ofDistributions (1670). Cf. PARENTELIC
METHOD; UNIVERSAL INHERITANCE RULE.
graduated lease. See LEASE.
graduated mortgage. See graduated-payment mortgage
under MORTGAGE.
graduated-payment adjustable-rate mortgage. See
MORTGAGE.
graduated-payment mortgage. See MORTGAGE.
graduated tax. See TAX.
gradus (gray-d<:ls), n. [Latin "step"]l. Roman law. A step
or degree in the familial relationship . The term iden
tified a position in the order ofsuccession under a will.
2. Hist. A degree, rank, or grade; specif., the rank of a
master-in-chancery or a serjeant-at-law.
graffer (graf-<lr). (15c) Hist. A notary or scrivener.
Also termed graffarius.
graffium (graf-ee-<lm). Hist. A register or cartulary
of deeds and other documents establishing title to
property, esp. real property. Also spelled grafium.
grafio (gray-fee-oh). [Law Latin] Hist. 1. A baron; a
viscount. A grafio was inferior to a count. 2. A fiscal
judge, responsible for collecting taxes and fines. The
term was chiefly used among early European nations.
graft, n. (14c) 1. The act of using a position of trust to
gain money or property dishonestly; esp., a public offi
cial's fraudulent acquisition of public funds. 2. Money
or property gained illegally or unfairly.
Graham factors. (1966) Patents. A three-part test for
determining obviousness under 103 of the Patent
Act of 1952, looking at (1) the scope and content ofthe
prior art, (2) the differences between the prior art and
the patent claims, and (3) the level of ordinary skill in
the pertinent art. Graham v. John Deere Co. ofKansas
City, 383 U.S. 1, 86 S.Ct. 684 (1966). See NONOBVIOUS
NESS. [Cases: Patents C-;:J 16.]
Grain Inspection, Packers, and Stockyards Admin
istration. An agency in the U.S. Department of Agri
culture responsible for helping to market meat, cereals,
and related agricultural products, and for promoting
fair trade practices. -Abbr. GIPSA.
grain rent. See crop rent under RENT (1).
grammatical interpretation. See INTERPRETATION.
granage. (16c) Hist. A duty consisting ofone-twentieth
of the salt imported by an alien into London.
granatarius (gran-o-tair-ee-os). [Law Latin] Hist. An
officer in charge of a granary, esp. one in charge of a
religious house's granary.
grand, adj. (17c) Of or relating to a crime involving the
theft of money or property valued more than a statuto
rily established amount, and therefore considered more
serious than those involving a lesser amount <grand
theft>. See grand larceny under LARCENY. Cf. PETTY.
[Cases: Larceny (;:::;>23.]
grand assize. See ASSIZE (5).
grand bill of sale. See BILL (7).
grand cape. See cape magnum under CAPE.
grand coutumier de pays et duche de Normandie (gron
koo-t[y]oo-myay do pay ay da-shay do nor-man-dee).
[French] Hist. A collection of the common or custom
ary laws of the Duchy of Normandy. The code was
probably compiled in the 13th century, and it still
remains the law of Jersey, except to the extent that it
has been modified by later legislation and judicial deci
sions. See CLAMEUR DE HARO.
Grand Day. English law. 1. Hist. One of four holy days
on which the courts were not in session . Each of the
four court terms had a Grand Day. The four Grand
Days were Candlemas Day (February Ascension
Day (March 25), St. John the Baptist Day (June 24),
and All Saints' Day (November 1). The Inns of Court
and of Chancery ceremoniously observed each Grand
Day. 2. A day in each term on which the Benchers ofthe
Inns of Court host ceremonial dinners in their halls.
See BENCHER. Cf. TERM (6).
grand distress. See DISTRESS.
grandfather, vb. (1953) To cover (a person) with the
benefits of a grandfather clause <the statute sets the
drinking age at 21 but grandfathers those who are 18
or older on the statute's effective date>. grandfather clause. (1900) 1. Hist. A clause in the con
stitutions of some Southern states exempting from
suffrage restrictions the descendants of men who could
vote before the Civil War . The U.S. Supreme Court
held that a clause of this kind in the Oklahoma Consti
tution violated the 15th Amendment. Guinn v. United
States, 238 U.S. 347, 35 S.Ct. 926 (1915). 2. A provi
sion that creates an exemption from the law's effect for
something that existed before the law's effective date;
specif., a statutory or regulatory clause that exempts
a class of persons or transactions because of circum
stances existing before the new rule or regulation takes
effect. [Cases: Statutes C-=228.] 3. In a government
contract, a provision that immunizes the contractor
against any changes in federal law that would other
wise adversely affect the contract. For example, the
government may promise to cover any increased costs
that arise from a change in the law, even though the
contractor would bear them for any other reason. 4. In
a construction contract, a general and inclusive provi
sian that makes a party responsible for dealing with
risks, whether expected or unexpected.
grand inquest. See INQUEST.
i grand juror. See JUROR.
I grand jury. (15c) A body of (usu. 16 to 23) people who
are chosen to sit permanently for at least a month
and sometimes a year and who, in ex parte proceed
ings, decide whether to issue indictments. See Fed. R.
Crim. P. 6. Ifthe grand jury decides that evidence is
strong enough to hold a suspect for trial, it returns a
bill ofindictment (a true bill) charging the suspect with
a specific crime. Also termed accusing jury; present
ing jury; jury ofindictment. Cf. petit jury under JURY.
[Cases: Grand Jury
"The grand jury serves or may serve two distinct func
tions. One is a screening function; the grand jury evalu
ates evidence supporting possible charges and returns
an indictment only in those cases in which the evidence
amounts to at least probable cause. The other is an investi
gatorial function; the grand jury sometimes develops infor
mation that is of value in determining whether grounds for
a charge exist and --perhaps incidentally --in proving
that charge at the defendant's later criminal trial." Frank
W. Miller et aI., Cases and Materials on Criminal justice
Administration 546 (3d ed. 1986).
additional grandjury. See special grand jury.
investigative grand jury. (1960) A grand jury whose
primary function is to examine possible crimes and
develop evidence not currently available to the pros
ecution. Also termed investigatory grand jury.
runaway grand jury. (1959) A grand jury that acts
essentially in opposition to the prosecution, as by
calling its own witnesses, perversely failing to return
an indictment that the prosecution has requested, or
returning an indictment that the prosecution did not
request.
screening grand jury. (1990) A grand jury whose
primary function is to decide whether to issue an
indictment.
special grand jury. (1854) A grand jury specially
summoned, usu. when the regular grand jury either
has already been discharged or has not been drawn;
a grand jury with limited authority. Also termed
additional grand jury; extraordinary grand jury.
[Cases; Grand Jury C=> 10.]
Grand Jury Clause. (1949) The clause of the Fifth
Amendment to the U.S. Constitution requiring an
indictment by a grand jury before a person can be tried
for serious offenses. [Cases; Grand JuryC=:::>2.]
grand-jury witness. See WITNESS.
grand larceny. See LARCENY.
grand list. See ASSESSMENT ROLL.
grandparent application. See PATENT APPLICATION.
grandparent rights. A grandfather's or grandmoth
er's rights in seeking visitation with a grandchild.
By statute in most states, in certain circumstances a
grandparent may seek court-ordered visitation with a
grandchild. Typically these circumstances include the
death of the grandparents' child (the child's parent) and
the divorce ofthe child's parents. But the United States
Supreme Court has held that the primary, constitution
ally protected right of decision-making regarding asso
ciation with a child lies with the child's parents. As a
general rule, ifthe parent is a fit and proper guardian
and objects to visitation, the parent's will prevails.
Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054 (2000).
[Cases; Child CustodyC=>283.]
grandparent visitation. See VISITATION.
Grand Remonstrance (ri-mon-strants). Hist. A protest
document issued by the House of Commons in 1641,
setting forth numerous political grievances against
Charles 1. _ The document demanded three primary
remedial measures; (1) improvements in the adminis
tration of justice, (2) appointment oftrustworthy min
isters, and (3) enforcement of the laws against Roman
Catholics. It was the first major split between the
Royalist and Parliamentary parties, and it led Charles
to seek the arrest of the five members who pushed the
document through the Commons.
grand serjeanty. See SERJEANTY.
Grand Survey. See grand inquest (2) under INQUEST.
grange (graynj). (14c) 1. Hist. A farm furnished with all
the necessities for husbandry, such as a barn, granary,
and stables; esp., an outlying farm that belonged to
a religious establishment or a feudal lord. 2. (cap.)
A social, educational, and political organization,
formally called the National Grange of the Patrons of
Husbandry, that informs its members about agricul
ture-related legislation and proposals, and represents
farm interests in lobbying government. -The Grange
was formed in 1867 and soon became the foundation
of the Granger Movement, a 19th-century political
force that protested economic abuses that increased
farmers' costs while forcing down prices for agricul
tural products. Movement followers (called Grangers)
controlled several Midwest state legislatures and passed Granger laws that set maximum rates for railroads,
warehouses, and grain elevators. Railroads and other
interested parties challenged the constitutionality of
these laws in what have become known as the Granger
Cases.
Granger Cases (grayn-jar). Six U.S. Supreme Court deci
sions holding that the police power of the states enabled
them, through legislation, to regulate fees charged by
common carriers, warehouses, and grain elevators.
The cases, decided in 1876, arose out of grangers'
(Le., farmers') frustration with the inflated prices they
were paying to store and transport their agricultural
products. When several state legislatures passed laws
regulating those prices, the affected businesses sued to
have the laws overturned on grounds that they violated
the Commerce Clause and the Due Process Clause of
the 14th Amendment. The Court rejected these claims,
holding that the activities involved affected the public
interest and were therefore subject to the government's
regulatory authority. See GRANGE (2).
Granger Movement. See GRANGE (2).
grant, n. (13c) 1. An agreement that creates a right or
interest in favor of a person or that effects a transfer
of a right or interest from one person to another.
Examples include leases, easements, charges, patents,
franchises, powers, and licenses. 2. The formal transfer
of real property. [Cases; Deeds 3. 'Ihe document
by which a transfer is effected; esp., DEED. 4. The
property or property right so transferred.
community grant. A grant of real property made by
a government (or sometimes by an individual) for
communal use, to be held in common with no right
to sell. - A community grant may set out specific,
communal uses for the property, such as for grazing
animals or maintaining a playground. Cf. private
grant. [Cases: Public Lands C=>223(4).]
escheat grant. A government's grant of escheated land
to a new owner. Also termed escheat patent. [Cases;
Escheat (;::::>8(1).]
imperfect grant. 1. A grant that requires the grantor
to do something before the title passes to another. Cf.
perfect grant. 2. A grant that does not convey all rights
and complete title against both private persons and
government, so that the granting person or political
authority may later disavow the grant. See Paschal v.
Perex, 7 Tex. 368 (1851).
inclusive grant. A deed or grant that describes the
boundaries ofthe land conveyed and excepts certain
parcels within those boundaries from the convey
ance, usu. because those parcels ofland are owned or
claimed by others. Also termed inclusive deed.
office |
ance, usu. because those parcels ofland are owned or
claimed by others. Also termed inclusive deed.
office grant. A grant made by a legal officer because
the owner is either unwilling or unable to execute a
deed to pass title, as in the case ofa tax deed. See tax
deed under DEED.
perfect grant. A grant for which the grantor has done
everything reqUired to pass a complete title, and the
769
grantee has done everything required to receive and
enjoy the property in fee. Cf. imperfect grant (1).
private grant. A grant ofreal property made to an indi
vidual for his or her private use, including the right
to sell it. -Private grants made by a government are
often found in the chains of title for land outside the
original 13 states, esp. in former Spanish and Mexican
possessions. Cf. community grant.
5. SUBSIDY (1).
grant, vb. (13c) 1. To give or confer (something), with or
without compensation <the parents granted the car to
their daughter on her 16th birthday>. 2. To formally
transter (real property) by deed or other writing <the
Lewisons granted the townhouse to the Bufords>.
[Cases: Deeds C=>3.] 3. To permit or agree to <the
press secretary granted the reporter access to the Oval
Office>. 4. To approve, warrant, or order (a request,
motion, etc.) <the court granted the continuance>. 5.
Int'llaw. See SUBSIDY (3).
grantback, n. (1956) A license-agreement provision
requiring the licensee to assign or license back to the
licensor any improvements that the licensee might
make to a patent or other proprietary right. [Cases:
Patents (:=213.]
grant deed. See DEED.
grantee. (lSc) One to whom property is conveyed.
grantee-grantor index. See INDEX (1).
grant-in-aid. (19c) 1. A sum ofmoney given by a govern
mental agency to a person or institution for a specific
purpose; esp., federal funding for a state public program.
[Cases: United States (::-=>82(2).)2. Hist. AID (1).
granting clause. (l8c) The words that transfer an interest
in a deed or other instrument, esp. an oil-and-gas lease.
-In an oil-and-gas lease, the granting clause typically
specifies the rights transferred, the uses permitted, and
the substances covered by the lease. [Cases: Deeds (:=>
28-37; Mines and Minerals C~73, 73.1.)
grant of rights. Copyright. A copyright owner's pre
publication assignment to the publisher ofall rights in
exchange for a payment or an advance on royalties.
grantor. (I7c) 1. One who conveys property to another.
[Cases: Deeds 30.] 2. SETTLOR (1).
grantor-grantee index. See INDEX (1).
grantor-retained annuity trust. See TRUST.
grantor-retained income trust. See TRUST.
grantor-retained unitrust. See TRUST.
grantor's lien. See vendor's lien under LIE~.
grantor trust. See TRUST.
grant to uses. Hist. A conveyance oflegal title to real
property to one person for the benefit of another.
If, tor example, A conveyed land to B and his heirs to
the use of C and his heirs, B - the feoffee to uses
acquired seisin in and had possession of the land and
was considered the legal owner. C the cestui que
use -was considered the equitable owner ofthe land gratuitous consideration
and was entitled to the land's rents, profits, and benefits.
Because the cestui que use did not have seisin in the
land, he was not subject to feudal payments. From the
13th century torward, the grant to uses was an increas
ingly popular mode of conveyance. See CESTUI QUE
USE; STATUTE OF USES; USE (4).
grass hearth. Hist. A tenant's customary service, consist
ing of the tenant's bringing his plow to the lord's land
and plowing it for one day.
grassum (gras-;ml). [Law Latin) 1. Scots law. A Single
lease payment made in addition to the periodic
payments due under an agreement; a payment in
addition to the rent paid by a tenant to the landlord.
PI. grassums.
"Grassum; an anticipation of rent in a gross or lump
sum .... In questions with singular successors there is
no limitation of the power to take grassums, only the rent
must not be thereby diminished so as to be altogether
elusory. In regard, however, to lands under entail, the heir
in possession must administer the estate secundum bonum
et aequum, taking no more of the annually accruing rents
and profits than he leaves to descend to his successors.
Hence, grassums, as being. in effect, anticipations of the
future rents, to the prejudice of succeeding heirs, are
held to be struck at by the prohibition against alienation."
William Bell, Bell's Dictionary and Digest of the Laws of
Scotland 492 (George Watson ed., 7th ed. 1890).
2. GRESSUME. 3. GERSUM (1). 4. GERSUM (2).
GRAT. abbr. GRANTOR-RETAINED ANNUITY TRUST.
gratia curiae (gray-shee-<:l kyoor-ee-ee or -I). [Latin)
Favor ofthe court. Cf. RIGOR JURIS.
gratia mandatarii (gray-shee-a man-da-tair-ee-I).
[Latin) Hist. For the sake of the mandatary. -The
phrase appeared in reference to the irrevocability of a
mandate given solely for the mandatary's benefit.
"Gratia mandatarii. .. In the general case, a mandate,
being for the benefit of the mandant, may be recalled by
him at pleasure. Mandates, however, which are granted
solely for the sake (or advantage) of the mandatary, such as
the mandate contained in the registration clause of a deed,
whereby the granter gives authority for its registration,
are not revocable." John Trayner, Trayner's Latin Maxims
237 (4th ed. 1894).
gratification. (16c) Archaic. A voluntarily given reward
or recompense for a service or benefit; a gratuity.
gratis (grat-is or gray-tis), adj. Free; without compen
sation.
gratis dictum. See DICTUM.
gratuitous (gra-t[y]oo-a-tds), adj. (17c) 1. Done or per
formed without obligation to do so; given without
consideration in circumstances that do not otherwise
impose a duty <gratuitous promise>. Cf. ONEROUS (3).
2. Done unnecessarily <gratuitous obscenities>.
gratuity, n.
gratuitous allowance. See ALLOWANCE (1).
gratuitous assignee. See ASSIGNEE.
gratuitous assignment. See ASSIGNMENT (2).
gratuitous bailment. See BAILMENT.
gratuitous consideration. See CONSIDERATION (1).
gratuitous coutract. See CONTRACT.
gratuitous deed. See deed ofgift under DEED.
gratuitous deposit.!. See gratuitous bailment under
BAILMENT. 2. See DEPOSIT (5).
gratuitous gift. See GIFT.
gratuitous promise. See PROMISE.
gratuitous surety. See SURETY.
gratuitous trust. See donative trust under TRUST.
gratuity. See BOUNTY.
gravameu (gr<l-vay-m;m). (17c) The substantial point Or
essence of a claim, grievance, or complaint.
gravatio (grd-vay-shee-oh). [Law Latin] Hist. An accusa
tion or impeachment.
graveyard insurance. See wager policy under INSURAJS'CE
POLICY.
gravity. (16c) Seriousness of harm, an offense, etc., as
judged from an objective, legal standpoint.
graymail. (1978) A criminal defendant's threat to reveal
classified information during the trial in the hope of
forcing the government to drop the criminal charge.
Cf. BLACKMAIL (1); GREENMAIL (1), (2); FEEMAIL.
gray market. See MARKET.
gray-market adoption. See private adoption under
ADOPTION.
gray-market goods. See PARALLEL IMPORTS.
gray mule case. See WHITEHORSE CASE.
Greaser Law. Hist. Slang. An anti-vagrancy statute that
gave law-enforcement authorities broad discretion to
arrest, fine, and jail people of Hispanic appearance
who had no visible means of support. _ 'Ibis statute
was enacted in California in 1855 and repealed in the
mid-20th century. The term greaser is racially deroga
tory, -Also termed Greaser Act.
great bodily injury. See serious bodily injury under
INJURY.
great care. See CARE.
great diligence. See DILIGENCE.
great fee. See FEE (2).
Great Inquest. See grand inquest (2) under INQlJEST.
Great Lakes rule. Maritime law. The statutory provision
that an admiralty litigant is entitled to a jury trial in
a contract or tort action if the lawsuit arises from the
operation ofa commercial vessel on the Great Lakes or
the naVigable waters connecting them. See 28 USCA
1873. [Cases: Admiralty (;::::>80.]
"The most important distinction between the law and admi
ralty 'sides' of federal court is that trial by jury is guaran
teed for law claims through the Seventh Amendment, but
where the case is maintained as an admiralty claim the
litigant has neither constitutional nor statutory right to a
jury trial. The one exception is the 'Creat Lakes Rule' ...."
Frank L Maraist & Thomas C. Calligan Jr., Admiralty in a
Nutshell 358 (4th ed. 2001). Great Law, The. Hist. The first code of laws enacted in
Pennsylvania . The Great Law was passed in 1682 by
an assembly that had been called by William Penn.
great pond. A body of water larger than ten acres, and
thus subject to public ownership. _ This term applies
in Maine, New Hampshire, and Massachusetts. -Also
termed public pond. [Cases: Waters and Water Courses
(;::::> 113.]
Great Rolls ofthe Exchequer. See PIPE ROLLS.
great seal. See SEAL.
Great Survey. See grand inquest (2) under INQUEST.
great tithe. See TITHE.
Great Waters Program. A scheme created by Congress
in 1990 to make the Environmental Protection Agency
more directly responsible for protecting large bodies
of fresh water and coastal waters from environmental
harm caused by air pollution. Clean Air Act Amend
ments of 1990,42 USCA 7412(m).
Great Writ. See HABEAS CORPUS.
gree (gree), n. [Law French] (13c) Hist. A satisfaction
received by a party for an offense or injury against the
party. See SATISFACTION (1).
"Cree comes of the French word gree, good liking: and it
signifies in our law, contentment or satisfaction; as in the
statute of 1 R. 2, c. 15, to make gree to the parties is to give
them contentment or satisfaction for an offence done unto
them." Termes de Ja Ley 247 (1 st Am. ed. 1812).
greenback, tl. (ca. 1862) Slang. A legal-tender note of
the United States; any note issued by a federal reserve
bank. The term was coined in 1862 when the backs
of American paper currency were first printed in green
ink.
green card. (1969) A registration card evidencing a
resident alien's status as a permanent U.S. resident.
green-card marriage. See MARRIAGE (1).
Green Cloth. See BOARD OF GREEN CLOTH.
greenfield site. (ca. 1962) 1. Land that has never been
developed. Such land is presumably uncontami
nated. Cf. BROWNFIELD SITE. 2. Property acquired as
an investment, esp. for establishing a new business.
green goods. Slang. Counterfeit money.
greenmail. (1983) 1. The act or practice of buying enough
stock in a company to threaten a hostile takeover
and then selling the stock back to the corporation at
an inflated price. 2. The money paid for stock in the
corporation's buyback. Cf. BLACKMAIL (1); FEEMAIL;
GRAYMAIL. 3. A shareholder's act offiling or threaten
ing to file a derivative action and then seeking a dis
proportionate settlement.
Green Paper on Copyright and the Challenge ofTech
nology. Copyright. A 1988 European Commission pub
lication that laid out a plan to harmonize the copyright
laws ofmember nations, esp.laws relating to informa
tion technology. -The Green Paper was tollowed by
a series ofdirectives that mandated uniform policies
771 gross profit
regarding copyright and new technologies. -Usu.
shortened to Green Paper.
Green River ordinance. A local licensing law that
protects residents from unwanted peddlers and sales
persons, typically by prohibiting door-to-door solicita
tions without prior consent . The ordinance takes its
name from Green River, Wyoming, which enacted the
first such law in the early 20th century before others
came into vogue during the 19308 and 19405 through
out the United States. [Cases: Hawkers and Peddlers
green wax. (pl.) llist. An Exchequer order (an estreat)
directing a sheriff to collect the fines and amercements
listed in the order. _ The name derives from the color
ofthe wax the Ex |
the fines and amercements
listed in the order. _ The name derives from the color
ofthe wax the Exchequer used on the estreat to certify
its authenticity. See ESTREAT.
greffier (gref-ee-;lr or gref-yay), n. [Law French] (l6c)
Hist. A registrar, esp. of a court; the court record
keeper.
Gregorian calendar. See NEW STYLE.
Gregorian Code. See CODEX GREGORIAN US.
gremio juris, in. See IN GREMIO JURIS.
gremio legis, in. See IN GREMIO LEGIS.
Grenville Act. Hist. A statute that transferred jurisdic
tion over parliamentary election petitions from the
whole House of Commons to select committees.
The Act, sponsored by George Grenville, was passed
in 1770. It was deSigned to depoliticize the resolution
ofdisputed elections, and repealed in 1828 when it was
superseded by statutes that conferred jurisdiction over
election disputes on the courts.
G reorganization. See REORGANIZATION (2).
Gresham's law. (l9c) The principle a debased currency
will drive out valuable currency . 'Ibis economic prin
ciple is popularly attributed to Sir Thomas Gresham
(1519-] 579), even though earlier writers such as Oresme
and Copernicus discussed it.
gressume (gres-;lm). Hist. A fine paid by a copyhold
tenant upon the transfer of a copyhold estate, esp. upon
the death ofthe lord. Also spelledgrasson;grassum;
grossome; gersum.
Gretna-Green marriage. See MARRIAGE (1).
greve. See REEVE.
grievance, n. (l4c) L An injury, injustice, or wrong that
gives ground for a complaint <a petition for a redress
ofgrievances>. 2. The complaint itself <the client filed
a grievance with the state-bar committee>. 3. Labor
law. A complaint that is filed by an employee or the
employee's union representative and that usu. concerns
working conditions, esp. an alleged violation of a col
lective-bargaining agreement. See grievance arbitration
under ARBITRATION; GRIEVANCE PROCEDURE. [Cases:
Labor and Employment C:;::1560.]
grievance arbitration. See ARBITRATION.
grievance procedure. Labor law. A process, consisting
of several steps, for the resolution of an employee's complaint. The first step usu. occurs at the shop level
and is handled by a supervisor. If the grievance is not
resolved at the first step, the grievance is appealed in
successive steps that vary among collective-bargaining
agreements. The final step of the procedure is griev
ance arbitration. See grievance arbitration under ARBI
TRATION; GRIEVANCE (3). [Cases: Labor Relations
451.]
grievant, n. (1958) Labor law. An employee who files a
grievance and submits it to the grievance procedure
outlined in a collective-bargaining agreement.
grieve, vb. To contest under a grievance procedure <the
union urged the employee to grieve the suspension>.
grievable, adj.
grievous bodily harm. See serious bodily injury under
INJURY.
grift, vb. (1915) Slang. To obtain money or other property
illicitly by adroit use of a scam, confidence game. or
other fraudulent means. -grifter, n.
GRIT. abbr. GRANTOR-RETAINED INCOME TRUST.
GRM. abbr. GROSS-RENT MULTIPLIER.
grog-shop. See DRAM SHOP.
groin-grabbing. The act of fondling or touching a
person's genitals through the person's clothing, esp. in
a crowded space or while walking along a sidewalk in
the opposite direction from the person. -Also termed
groin-groping.
gross, easement in. See easement in gross under EASE
MENT.
gross adventure. See ADVENTGRE.
gross average. See general average under AVERAGE.
gross charter. See CHARTER (8).
gross damages. See DAMAGES.
gross earnings. See gross income under INCOME.
i
gross estate. See ESTATE (3). .
gross income. See INCOME.
gross-income multiplier. See GROSS-RENT MULTIPLIER.
gross-income tax. See TAX.
gross interest. See INTEREST (3).
gross lease. See LEASE.
grossly inadequate consideration. See CONSIDERATION
(1).
gross misdemeanor. See MISDEMEANOR.
gross national product. (1947) The market value ofall
goods and services produced in a country within a year.
used to measure a country's economic development and
wealth. -Abbr. GNP.
gross neglect ofduty. See DESERTION.
gross negligence. See NEGI.IGENCE.
grossome. Hist. See GRESSUME.
gross premium. See PREMIUM (1).
gross profit. See PROFIT (1).
772 gross receipts
gross receipts. Tax. The total amount of money or
other consideration received by a business taxpayer
for goods sold or services performed in a taxable year,
before deductions.IRC (26 USCA) 448; 26 C.F.R.
1.448-lT (f)(2)(iv).
gross-receipts tax. See TAX.
gross-rent multiplier. The ratio between the market
value of rent-producing property and its annual gross
rental income . The gross-rent multiplier is used as a
method to estimate a property's market value. -Abbr.
GRM. -Also termed gross-income multiplier.
gross sales. See SALE.
gross spread. See SPREAD (4).
gross up, vb. (1987) Slang. Tax. To add back to a dece
dent's gross estate the gift taxes paid by the decedent
or the decedent's estate on gifts made by the decedent
or the decedent's spouse during the three-year period
preceding the decedent's death. IRC (26 USCA) 2035.
[Cases: Internal Revenue ~4l59(2).1
gross weight. See WEIGHT.
ground, n. (usu. pl.) (13c) Ihe reason or point that some
thing (as a legal claim or argument) relies on for validity
<grounds for divorce> <several grounds for appeal>.
ground, vb. (14c) 1. To provide a basis for (something,
such as a legal claim or argument) <the decision was
grounded on public policy>. 2. To base (something,
such as a legal principle or judicial decision) on <the
court grounded the decision on common law> <strict
liability is grounded on public policy>.
groundage (grown-dij), n. (15c) Hist. Maritime law. A
tax or toll levied on a vessel lying in port; the tax or
toll so paid.
ground annual. l. See ground rent under RENT (1). 2.
See FEU DUTY.
ground landlord. Hist. The grantor of an estate on which
ground rent is reserved. See ground rent under RENT
(1).
ground-law. A fundamental law. See FUNDAMENTAL
LAW.
"~If the power of a sovereign or of a government is limited by
a ground-law, written or unwritten, a treaty cannot override
that constitution," Theodore D. Woolsey, Introduction to the
Studyoflntemational Law 103, at 167 (5th ed. 1878).
ground lease. See LEASE.
groundless, adj. (17c) (Of a legal claim or argument)
lacking a basis or a rationale <groundless cause of
action>. See FRIVOLOUS.
ground ofaction. 1. CAUSE OF ACTION (1). 2. CAUSE OF
ACTION (2).
ground rent. See RENT (I).
ground-rent lease. See ground lease under LEASE.
groundwater. See WATER (1).
ground writ. See WRIT.
group annuity. See ANNUITY. group art unit. Patents. A U.S. Patent and Trademark
Office division consisting ofpatent examiners who spe
cialize in a particular invention's subject matter. [Cases:
Patents ~104.]
group boycott. See BOYCOTT.
group director. Patents. The person responsible for
directing the operations of an examining group within
the U.S. Patent and Trademark Office.
grouping-of-contacts theory. See CENTER-OF-GRAVITY
DOCTRINE.
group insurance. See INSURANCE.
group libel. See LIBEL.
group litigation. (1936) A set oflawsuits on behalfofor
against numerous persons recognized as one litigating
entity, such as a civil-rights group.
group policy. See master policy under INSURANCE
POLICY.
growing crops. See CROPS.
growing-equity mortgage. See MORTGAGE.
growth. The gain, increase, or expansion in value of
securities or ofa business.
growth company. See COMPANY.
growth fund. See MUTUAL FUND.
growth industry. (1954) An industry or business sector
whose revenues and earnings are rising at a faster rate
than average.
growth management. (1974) Land-use planning. The
regulation ofa community's rate of growth through
zoning ordinances, impact fees, and other measures.
See ZONING. [Cases: Zoning and Planning C::::> 1, 86,
245.]
growth stock. See STOCK.
gruarii (groo-air-ee-I), n. pl. Hist. The principal officers
ofa forest. These officers were charged with guarding
and enforcing restrictions on the use of timber. See
FOREST.
grubstake contract. See CONTRACT.
grubstaking contract. See grubstake contract under
CONTRACT.
grundnorm. See basic norm under NORM.
Grundy Tariff. See SMOOT-HAWLEY TARIFF ACT.
GRUT. abbr. GRANTOR-RETAINED UNITRUST.
GSA. abbr. GENERAL SERVICES ADMINISTRATION.
GST supertrust. See dynasty trust under TRUST.
guarantee (gar-an-tee), n. (17c) 1. The assurance that
a contract or legal act will be duly carried out. 2.
GUARANTY (1).
"In practice, guarantee, n., is the usual term, seen often,
for example, in the context of consumer warranties or
other assurances of quality or performance. Guaranty, in
contrast, is now used primarily in financial and banking
contexts in the sense "a promise to answer for the debt of
another." Guaranty is now rarely seen in nonlegal writing,
whether in G.B. or in the u.s: Bryan A. Garner, A Dictionary
of Modern Legal Usage 394 (2d ed. 1995).
773
3. Something given or existing as security, such as to
fulfill a future engagement or a condition subsequent.
[Cases: Guaranty C=> 1.]4. One to whom a guaranty
is made. -Also spelled guaranty. [Cases: Guaranty
C=>3S.]
guarantee, vb. (1Sc) 1. To assume a suretyship obliga
tion; to agree to answer for a debt or default. [Cases:
Guaranty C=>1.] 2. To promise that a contract or legal
act will be duly carried out. [Cases: Guaranty C=>11.]
3. To security to.
guarantee clause. (IS87) 1. A provision in a contract,
deed, or mortgage by which one person promises to
pay the obligation of another. [Cases: Guaranty
33, 36.] 2. (cap.) U.S. Const. art. IV, 4, under which
the federal government ensures for the states both a
republican form ofgovernment and protection from
invasion or internal insurrection. -The U.S. Supreme
Court has consistently treated claims under the Guar
antee Clause as nonj~sticiable political questions. See
Pacific States Tel. & Tel. Co. v. Oregon, 223 U.S. 11S, 82
S.Ct. 224 (1912).
guaranteed annual wage plan. Labor law. A wage-pay
ment method in which the employer agrees either to pay
employees a predetermined minimum sum each year
or to provide a minimum number ofhours ofemploy
ment each year. - A wide variety ofguaranteed annual
wage plans are used. For example, an employer may
agree to pay employees wages for each week in the year,
even though work may not be available at certain times
of the year. The purpose of such a plan is to provide a
stable labor force year-round.
guaranteed bond. See BOND (3).
guaranteed investment contract. See INVESTMENT CON
TRACT.
guaranteed-purchase contract. See guaranteed-sale
contract under CONTRACT.
guaranteed-sale contract. See CONTRACT.
guaranteed stock. See STOCK.
guarantee oftitle. Property. A warranty that the title
to a piece of real property is vested in a particular
person, given by a title company or abstract company,
and based on a title searcher's opinion ofthe status of
the property's title. The guarantee is usu. backed by
insurance to cover damages resulting from the title
searcher's oversight or negligence in finding recorded
legal instruments. Cf. title insurance under INSURANCE.
[Cases: Abstracts ofTitle 1; Covenants
guarantee stock. See STOCK.
guarantee treaty. See TREATY (1).
guarantor. (19c) One who makes a guaranty or gives
security for a debt. _ While a surety's liability begins
with that of the principal, a guarantor's liability does
not begin until the principal debtor is in default. Cf.
SURETY ( |
a guarantor's liability does
not begin until the principal debtor is in default. Cf.
SURETY (1). [Cases: Guaranty ~~29, 33,44.]
"A guarantor either guarantees payment or collection,
depending on the words used. 'Payment guaranteed' or
equivalent words added to a signature mean the signer guaranty
will pay the instrument if it is not paid when due without a
need for the holder to resort to another party. 'Collection
guaranteed' means resort must first be had to others." Fred
H. Miller & Alvin C. Harrell, The Law of Modem Payment
Systems 5.02, at 195 (2003).
guarantor ofcollectibility. (1881) One who guarantees
a debtor's solvency and is under a duty to pay only if
the creditor is unable to collect from the principal
debtor after exhausting all legal remedies, including
demand, suit, judgment, and any supplementary pro
ceedings. [Cases: Guaranty C=>33, 45, 77(2).]
guarantor of payment. (1814) One who guaran
tees payment of a negotiable instrument when it is
due without the holder first seeking payment from
another party. _ A guarantor of payment is liable
only if "payment guaranteed" or equivalent words
are added to the guarantor's indorsement. [Cases:
Guaranty 45, 77.]
guarantor trust. See TRUST.
guaranty (gar-dn-tee), n. (16c) 1. A promise to answer
for the payment of some debt, or the performance of
some duty, in case ofthe failure ofanother who is liable
in the first instance. _ The term is most common in
finance and banking contexts. While a warranty relates
to things (not persons), is not collateral, and need not
be in writing, a guaranty is an undertaking that a
person will payor do some act, is collateral to the duty
ofthe primary obligor, and must be in writing. On the
spelling ofguaranty vs. guarantee, see the quotation
at GUARANTEE (2). Also termed guaranty contract.
[Cases: Guaranty <::=:> 1.]
"Both guaranty and warranty are undertakings by one
party to another to indemnify the party assured against
some possible default or defect. But a guaranty relates to
the future, as a collateral promise designed to protect the
promisee from loss in case another fails to perform his
duty. A warranty relates to the present or past, and is an
independent promise designed to protect the promisee
from loss in the event that the facts warranted are not as
the promisor states them to be when the contract is made.
A warranty is broken as soon as it is made if the facts
are not as represented, and is enforceable though oral;
whereas a guaranty is not breached until a future default
occurs, and is unenforceable unless in writing." Laurence P.
Simpson, Handbook on the Law ofSuretyship 23 (1950).
"A transaction of guaranty involves at least three parties:
a promisor, a creditor (the person to whom the promise is
made), and a debtor although at the time the promise
is made, the person denominated the 'creditor' need not
have extended the credit to the person denominated as
the 'debtor.' The usual guaranty situation arises when the
promisor makes a promise to the creditor either as to the
solvency of the debtor or as to the payment of the debt."
38 Am. Jur. 2d Guaranty 1, at 996 (1968).
absolute guaranty. (lSc) 1. An unqualified promise that
the principal will payor perform. [Cases: Guaranty
C=>42(l).] 2. A guarantor's contractual promise to
perform some act for the creditor -such as paying
money or delivering property if the principal
debtor defaults.
conditional guaranty. (1813) A guaranty that requires
the performance of some condition by the creditor
774 guaranty bond
before the guarantor will become liable. [Cases:
Guaranty (;::::>42.]
contingent guaranty. (1843) A guaranty in which the
guarantor will not be liable unless a specified event
occurs.
continuing guaranty. (1817) A guaranty that governs a
course of dealing for an indefinite time or by a succes
sion ofcredits. - Also termed open guaranty. [Cases:
Guaranty
cross-stream guaranty. A guaranty made by a company
for the obligation of another company when both are
owned by the same parent company or individual.
downstream guaranty. 1. A parent corporation's
guaranty ofa subsidiary's obligations. 2. A guaranty
made for a company by a guarantor who is also a
partner, member, or stockholder of the company.
general guaranty. (l7c) 1. A guaranty addressed to
no specific person, so that anyone who acts on it can
enforce it. 2. A guaranty for the principal's default
on obligations that the principal undertakes with
anyone.
good-guy guaranty. A limited guaranty by a third-per
son that leased property or collateral will be kept in
good condition and returned to the lessor or lender
if a default occurs. -Good-guy guaranties are most
commonly associated with real-property leases.
Also written good-guy guarantee. -Also termed
good-guy clause. [Cases: Guaranty C':::>36(8).]
guaranty ofcollection. (1843) A guaranty that is con
ditioned on the creditor's having first exhausted legal
remedies against the principal debtor before suing
the guarantor. See guarantor ofcollectibility under
GUARANTOR.
guaranty ofpayment. (1811) A guaranty that is not con
ditioned on the creditor's exhausting legal remedies
against the principal debtor before suing the guaran
tor. See guarantor ofpayment under GUARANTOR.
irrevocable guaranty (i-rev-;}-k"-b,,l). (1898) A
guaranty that cannot be terminated unless the other
parties consent. [Cases: Guaranty (;::::>24.]
limited guaranty. (1831) An agreement to answer
for a debt arising from a Single transaction. -Also
termed noncontinuing guaranty. [Cases: Guaranty
(;:~38(1).]
open guaranty. See continuing guaranty
revocable guaranty. (1936) A guaranty that the guaran
tor may terminate without any other party's consent.
[Cases: Guaranty
special guaranty. (18c) 1. A guaranty addressed to a
particular person or group of persons, who are the
only ones who can enforce it. [Cases: Guaranty
29, 32.] 2. A guaranty that names a definite person as
obligee and that can be accepted only by the person
named.
specific guaranty. (l8c) A guaranty ofa single debt or
obligation. upstream guaranty. A guaranty made by a corporate
subsidiary for the parent corporation's obligations.
2. GUARANTEE (1).
guaranty bond. See BOND (2).
guaranty company. See surety company under
COMPANY.
guaranty contract. See GUARANTY (1).
guaranty fund. See FUND (1).
guaranty insurance. See INSURANCE.
guaranty letter of credit. See standby letter ofcredit
under LETTER OF CREDIT.
guaranty stock. See STOCK.
guaranty treaty. See guarantee treaty under TREATY
(] ).
guard. See DOORKEEPER.
guardage. Hist. 1. WARDSHIP. 2. GUARDIANSHIP.
guardhouse lawyer. See JAILHOUSE LAWYER.
guardian, n. (15c) 1. One who has the authority
and duty to care for another's person or property, esp.
because ofthe other's infancy, incapacity, or disability.
_ A guardian may be appointed either for all purposes
or for a specific purpose. -Abbr. gdn. -Also termed
custodian. See CONSERVATOR. Cf. WARD (1). [Cases:
Guardian and Ward 1; Mental Health C-;) 101.]
chancery guardian (chan-s"r-ee). A guardian
appointed by a court ofchancery to manage both the
person and the estate of the ward. [Cases: Guardian
and Ward (;::::>10, 17,36.]
domestic guardian. A guardian appointed in the state
in which the ward is domiciled.
foreign guardian. A guardian appointed by a court
in a state other than the one in which the ward is
domiciled. _ A foreign guardian cares for the ward's
property that is located in the state of appointment.
[Cases: Guardian and Ward 166; Mental Health
(;::='194.]
general guardian. A guardian who has general care
and control of the ward's person and estate. [Cases:
Guardian and Ward (;::::>29,36; Mental Health
484.]
guardian ad litem (ad h-tem or -t"m). (18c) A guardian,
usu. a lawyer, appOinted by the court to appear in a
lawsuit on behalf of an incompetent or minor party.
Abbr. GAL Also termed special advocate; special
guardian; law guardian. Cf. NEXT FRIEND; attorney
ad litem under ATTORNEY. [Cases: Infants (;::::>76,205;
Mental Health
H[llt is necessary to determine whether the lawyer has
been appointed as a guardian ad litem (GAL) charged with
representing the child's best interests, or as an advocate,
serving as counsel to the child .... From the distinction
between guardian and advocate flow a series of impor
tant consequences, including such matters as whether the
attorney may file motions and examine witnesses, whether
the attorney may file a report with the court. and whether
the attorney may testify. Moreover, in most jurisdictions a
GAL has an absolute quasijudicial immunity for lawsuits
775 guardian of the poor
for negligence .... Although a non-lawyer cannot serve
as counsel to the child, such an individual might be a GAL
or 'special advocate' in some states. Courts have struggled
to clarify these roles, and define how children's representa
tives may participate in different types of proceedings."
Homer H. ClarkJr. & Ann Laquer Estin, Domestic Relations:
Cases ana Problems 1078 (6th ed. 2000).
guardian by custom. Hist. A person who, under local
custom, had the right to act as a minor's guardian.
guardian by election. A guardian chosen by a ward who
would otherwise be without one. [Cases: Guardian
and Ward C=> 19.]
guardian by estoppel. See quasi-guardian.
guardian by nature. Hist. The parental guardian ofan
heir apparent who has not yet reached the age of21.
Although the common law recognized the father as a
guardian by nature and the mother as one only after
the father's death, most states have given both parents
equal rights ofguardianship over their children (see,
e.g., N.Y. Dom. ReI. Law 81). -Also termed natural
guardian. [Cases: Guardian and Ward C=>4.]
guardian by nurture. Hist. The parental guardian ofa
child who is not the heir apparent, lasting until the
child reaches the age of 14. Also termed guardian
for nurture.
"There are also guardians for nurture, which are, of
course, the father or mother, till the infant attains the age
of fourteen years and, in default of father or mother, the
ordinary usually assigns some discreet persons to take
care ofthe infant's personal estate, and to provide for his
maintenance and education." 1 William Blackstone, Com
mentaries on the Laws ofEngland 449 (1765).
guardian by statute. See statutory guardian.
guardian de son tort (d;:) sawn [or son] tor[t]). See
quasi-guardian.
guardian for nurture. See guardian by nurture.
guardian in chivalry. Hist. A guardian who, by virtue
ofknight's service, had custody ofthe body and lands
of a male heir under 21 or a female heir under 14.
This type of guardian had no accountability for
profits.
guardian in socage. New York law. A guardian for a
child who has acquired lands by descent . A guardian
is usu. a relative who could not possibly inherit from
the child. This type of guardianship applies to both
the person and the property of the child and, histori
cally, lasted only until the child was 14, when the child
was allowed to select a guardian; now it lasts until the
child reaches age 18 or is emancipated.
guardian ofproperty. See guardian ofthe estate.
guardian ofthe estate. A guardian responsible for
taking care of the property of someone who is inca
pable of caring for his or her own property because
of infancy, incapacity, or disability. -Also termed
guardian ofproperty. [Cases: Guardian and Ward
1,36; Mental Health (;:.=>211, 216.]
guardian ofthe person. A guardian responsible for
taking care of someone who is incapable of caring
for himself or herself because of infancy, incapacity, or disability. [Cases: Guardian and Ward 29;
Mental Health C=>1Ol.]
law guardian. See guardian ad litem.
natural guardian. 1. Hist. The eldest son's father, until
the son turned 21. 2. In the absence of statute, the
father of a legitimate child until the child reaches the
age |
turned 21. 2. In the absence of statute, the
father of a legitimate child until the child reaches the
age of 21. A father of illegitimate children may be
appointed as their guardian upon the mother's death.
3. Most commonly and by statute, either the father
or the mother of a minor child -each bearing the
title Simultaneously . Ifone parent dies, the other is
the natural guardian. See guardian by nature. [Cases:
Guardian and Ward ~4.]
partial guardian. A guardian whose rights, duties,
and powers are strictly limited to those specified in
a court order.
quasi-guardian. A guardian who assumes that role
without any authority. -Such a person may be made
to account as guardian. Also termed guardian by
estoppel; guardian de son tort. [Cases: Guardian and
WardC=>7.]
special guardian. (17c) 1. A guardian who has special
or limited powers over the ward's person or estate.
-Examples are guardians who have custody of the
estate but not of the person, those who have custody
of the person but not of the estate, and guardians ad
litem. Also termed (in civil law) curator ad hoc. See
CURATOR (2). 2. See guardian ad litem. [Cases: Mental
Health C=>495.]
standby guardian. A parent-designated guardian who
is appointed to assume responsibility for a child at a
future date ifthe child's parent becomes incapable of
caring for the child but who does not divest the parent
of custodial rights. -Several states have enacted
statutes providing for a standby guardian in the case
of a terminally ill single parent. A standby guardian
assumes responsibility for a child during periods of
the parent's incapacity and upon the parent's death .
[Cases: Guardian and Ward (;:::) 10.]
statutory guardian. A guardian appointed by a court
haVing special statutory Jurisdiction. -Also termed
guardian by statute.
successor guardian. An alternate guardian named in
a parent's will against the possibility that the first
nominee cannot or will not serve as guardian. [Cases:
Guardian and Ward C=>27; Mental Health (~178.1
testamentary guardian. A guardian nominated by a
parent's will for the person and property of a child
until the child reaches the age of majority.
2. Hist. A mesne lord who was entitled to treat an
infant heir's lands for all practical purposes as the lord's
own, enjoying fully their use and whatever profits they
yielded. At the end of the guardianship, when the
heir reached majority, no accounting was owed by the
mesne lord.
guardian of the poor. Hist. A person in charge of the
i relief and maintenance of the poor in a parish.
776 guardian of the spiritualities
Guardians ofthe poor administered poor-relief funds
raised under the Poor Relief Act of1601. -The function
is now performed by local authorities.
guardian ofthe spiritualities. Eccles. law. A person who
exercises the spiritual and ecclesiastical jurisdiction of
a diocese during a vacancy in the see or the absence of
the bishop.
guardian ofthe temporalities. Eccles. law. The person to
whom custody of the secular possessions of a vacant see
or abbey is committed by the Crown. -Temporalities
(secular possessions) are the land, revenue, and tene
ments that archbishops and bishops have had annexed
to their sees.
guardianship. OSc) 1. The fiduciary relationship between
a guardian and a ward or other incapacitated person,
whereby the guardian assumes the power to make deci
sions about the ward's person or property. - A guard
ianship is almost always an involuntary procedure
imposed by the state on the ward. Cf. CONSERVATOR
SHIP; INTERDICTION. [Cases: Guardian and Ward 1;
Mental Health ~101.] 2. The duties and responsibili
ties of a guardian. Also termed GUARDAGE.
ancillary guardianship. A subservient and subsid
iary guardianship in a state other than that in which
guardianship is originally granted. [Cases: Guardian
and Ward ~166-172; Mental Health
guardianship ofthe estate. A guardianship in which
the guardian can make decisions only about matters
regarding the ward's assets and property. [Cases:
Guardian and Ward (,'::::'033; Mental Health (::::::;>211.]
guardianship ofthe person. A guardianship in which
the guardian is authorized to make all significant
decisions affecting the ward's well-being, includ
ing the ward's physical custody, education, health,
activities, personal relationships, and general welfare.
[Cases: Guardian and Ward ~29; Mental Health
(;:: 101.]
plenary guardianship. A guardianship in which the
guardian can make decisions about both the ward's
estate and the ward's person. [Cases: Mental Health
101.]
standby guardianship. A guardianship in which a
parent deSignates a guardian to assume responsibil
ity for a child at a future date, if the child's parent
becomes incapable of caring for the child, but without
divesting the parent ofcustodial rights.
gubernator navis (g[yJoo-bdr-nay-tdf nay-vis). [Latin
"ship helmsman"] Roman law. The pilot or steersman
of a ship. -The gubernator navis could be sued for
damages ifhe negligently caused a collision.
guerrilla warfare. See WARFARE.
guest. (Be) 1. A person who is entertained or to whom
hospitality is extended. 2. A person who pays for
services at an establishment, esp. a hotel or restaurant.
[Cases: Innkeepers 3. A nonpaying passenger in
a motor vehicle. [Cases: Automobiles (;:::c 181(2).] business guest. (1942) Torts. See BUSINESS VISITOR
(1).
social guest. Torts. A guest who is invited to enter or
remain on another person's property primarily for
private entertainment as opposed to entertainment
open to the general public. See LICENSEE (2). [Cases:
Negligence (::::::;> 1041.J
guest statute. (1914) A law that bars a nonpaying pas
senger in a noncommercial vehicle from suing the
host-driver for damages resulting from the driver's
ordinary negligence. -Though once common, guest
statutes remain in force in only a few states. Also
termed automobile-guest statute. Cf. FAMILY-PURPOSE
RULE. [Cases: Automobiles C--= 181.]
guidage. Hist. 1. A toll or fee for guiding a traveler
through strange or dangerous territory. 2. The act of
guiding a traveler through strange or dangerous ter
ritory.
guild. (I4c) 1. A group of persons sharing a common
vocation who unite to regulate the affairs of their
trade in order to protect and promote their common
vocation; a voluntary society or fraternity of
persons employed in the same trade or craft, formed
for the mutual benefit and protection of its members,
who pay a fee (a geld orgild) for its general expenses.
Also termed (in senses 1 and 2) trade guild. 2. Hist. A
company or corporation.
guildhall. (l4c) Hist. 1. The meeting place ofa guild.
Also spelled gildhall. 2. The chief hall of a city, used
for holding court and the meetings of the municipal
corporation.
guild rent. See RENT (1).
guilt, n. (bef. 12c) The fact or state ofhaving committed
a wrong, esp. a crime <the state's burden was to prove
guilt beyond a reasonable doubt>. Cf. INNOCENCE.
guiltless, adj. (14c) 1. Free from guilt; not haVing com
mitted a wrong <guiltless ofthe crime>. 2. Having the
quality or appearance of innocence <even though she
confessed, the defendant looked guiltless>.
guilt phase. (1960) 'The part of a criminal trial during
which the fact-finder determines whether the defen
dant committed a crime. Cf. PENALTY PHASE.
guilty, adj. (bef. 12c) 1. Having committed a crime;
responsible for a crime <guilty of armed robbery>.
[Cases: Criminal Law (;:::~)273.1 2. Responsible for a civil
wrong, such as a tort or breach ofcontract <guilty of
fraudulent misrepresentation>. -guiltily, adv.
guilty, n. 1. A plea ofa criminal defendant who does not
contest the charges. 2. A jury verdict convicting the
defendant of the crime charged.
guilty but mentally ill. (1977) A form of verdict in a
criminal case whereby the jury rejects the defendant's
insanity defense but still recommends psychiatric treat
ment because the detendant is mentally ilL Abbr.
GBMI; GMI. -Also termed guilty but insane; guilty
ofthe act, but so insane as not to be responsible. See
INSANITY DEFENSE. [Cases: Criminal Law ~286.l0.]
777
guilty mind. See MENS REA.
guilty plea. See PLEA (1).
guilty verdict. See VERDICT.
gun-control law. (1968) A statute or ordinance that
regulates the sale, possession, or use of firearms.
Gun-control laws vary widely among the states, and
many cities have gun-control ordinances. Federal law
restricts and regulates the illegal sale, possession, and
use of firearms. 18 USCA 921-930. See BRADY ACT.
[Cases: Weapons
Gun-Free Schools Act. A federal law designed to
eliminate weapons in schools. 20 USCA 7151.
The Gun-Free Schools Act provides that each state
receiving federal funds for elementary and secondary
schools must require school districts to expel for one
year any student found to have brought a weapon to
school. The Act does, however, provide for a case-bygyve
case modification ofthe expulsion requirement. [Cases:
Schools Y 177.]
gun-jumping. Slang. The act of unlawfully soliciting the
public's purchase ofsecurities before the SEC approves
a registration statement; the making of offers after the
filing ofa registration statement, but before its effective
date, when such offers violate the Securities Act. Also
termed conditioning the market. See REGISTRATION
STATEMENT.
gwalstow (gwawl-stoh). [fro Old English gwal "gallows"
+ stow "place"] Hist. A place where criminals were
executed.
gynecocracy (gr-m-kok-rd-see also jin-d or jI-nd-). (17c)
Government by a woman or by women. -Also spelled
gynaecocracy.
gyve (jIV). (I4c) (usu. pl.) Hist. A shackle for the leg.
H
H. abbr. 1. HOUSE OF REPRESENTATIVES. 2. House report.
3. See house bill under BILL (3). 4. In the citation of
English statutes, a king named Henry. 5. In the Year
Books, the Hilary term. See YEAR BOOKS (3); HILARY
SITTINGS. 6. In tax assessments and other such official
reports, a house.
habe (hay-bee). [Law Latin] A form of the salutatory
expression ave ("hail"). -Also termed have (hay
vee).
habeas corpora juratorum (hay-bee-;}s kor-p;}r-;} juur
;}-tor-am). [Law Latin "that you have the bodies of the
jurors"] Hist. A writ commanding the sheriff to bring
in jurors and, if necessary, to take their lands and goods
as security to ensure their attendance in court for a trial
setting. -This writ issued from the Court ofCommon
Pleas and served the same purpose as a distringas jura
tores in the King's Bench. The writ was abolished in
l852.
habeas corpus (hay-bee-as kor-p;}s). [Law Latin "that
you have the body"] (I8c) A writ employed to bring a
person before a court, most frequently to ensure that
the person's imprisonment or detention is not illegal
(habeas corpus ad subjiciendum) . In addition to being
used to test the legality of an arrest or commitment,
the writ may be used to obtain judicial review of (1)
the regularity of the extradition process, (2) the right
to or amount of bail, or (3) the jurisdiction of a court
that has imposed a criminal sentence. -Abbr. H.C.
Sometimes shortened to habeas. -Also termed writ
ofhabeas corpus; Great Writ. [Cases: Habeas Corpus
(:=>201.]
''The writ of habeas corpus, by which the legal author
ity under which a person may be detained can be chal
lenged, is of immemorial antiquity. After a checkered
career in which it was involved in the struggles between
the common-law courts and the Courts of Chancery and
the Star Chamber, as well as in the conflicts between Parlia
ment and the crown. the protection of the writ was firmly
written into English law by the Habeas Corpus Act of 1679.
Today it is said to be 'perhaps the most important writ
known to the constitutional law of England ....'" Charles
Alan Wright, The Law of Federal Courts 53, at 350 (5th
ed. 1994) (quoting Secretary of State for Home Affairs v.
O'Brien, [1923] A.C. 603, 609).
habeas corpus ad deliberandum et recipiendum (hay
bee-as kor-p;}s ad di-lib-;}-ran-dam et ri-sip-ee-en
dam). [Law Latin "that you have the body to consider
and receive"] Hist. A writ used to remove a person for
trial from one county to the |
"that you have the body to consider
and receive"] Hist. A writ used to remove a person for
trial from one county to the county where the person
allegedly committed the offense. Cf. EXTRADITION.
habeas corpus adfaciendum et recipiendum (hay
bee-as kor-p;}s ad fay-shee-en-dam et ri-sip-ee-en
ddm). [Law Latin "that you have the body to do and
receive"] Hist. A writ used in civil cases to remove
the case, and also the body of the defendant, from an inferior court to a superior court. Also termed
habeas corpus cum causa. See CERTIORARI.
habeas corpus adprosequendum (hay-bee-;)s kor-pas
ad prahs-a-kwen-d;}m). [Law Latin "that you have the
body to prosecute"]. A writ used in criminal cases to
bring before a court a prisoner to be tried on charges
other than those for which the prisoner is currently
being confined. [Cases: Criminal Law
habeas corpus ad respondendum (hay-bee-ds kor-PdS
ad ree-spon-den-d;}m). [Law Latin "that you have the
body to respond"] Hist. A writ used in civil cases to
remove a person from one court's custody into that
of another court, in which the person may then be
sued.
habeas corpus ad satisfaciendum (hay-bee-;}s kor-pds
ad sat-is-fay-shee-en-d~m). [Law Latin "that you have
the body to make amends"] In England, a writ used to
bring a prisoner against whom a judgment has been
entered to some superior court so that the plaintiff
can proceed to execute that judgment.
habeas corpus ad subjiciendum (hay-bee-as kor-pds
ad sab-jis-ee-en-d;}m). [Law Latin "that you have
the body to submit to"] A writ directed to someone
detaining another person and commanding that the
detainee be brought to court. -Usu. shortened to
habeas corpus. [Cases; Habeas Corpus
habeas corpus ad testificandum (hay-bee-;}s kor-pds
ad tes-ti-fi-kan-dam). [Law Latin "that you have
the body to testify"] Hist. A writ used in civil and
criminal cases to bring a prisoner to court to testify.
[Cases: Witnesses C"::'18.J
habeas corpus cum causa. See habeas corpus ad facien
dum et recipiendum.
Habeas Corpus Act. 1. One ofthe four great charters of
English liberty (31 Car. 2, 1679), securing to English
subjects speedy relief from all unlawful imprison
ments . The other three great charters are Magna
Carta, the Petition of Right (3 Car. 1, 1628), and the
Bill of Rights (1 Wm. & M. 1689). The Habeas Corpus
Act does not apply in Scotland; the corresponding
statute is the Criminal Procedure Act of 1701, ch. 6. 2.
A statute deriving ultimately from the English statute
and enacted in the United States as a constitutional
guarantee of personal liberty. [Cases: Habeas Corpus
(:=>201-9l3.]
habendum clause (ha-ben-dam). (1829) 1. 1he part of
an instrument, such as a deed or will, that defines the
extent of the interest being granted and any condi
tions affecting the grant. The introductory words to
the clause are ordinarily to have and to hold. Also
termed to-have-and-to-hold clause. [Cases: Deeds
120.] 2. Oil & gas. The provision in an oil-and-gas lease
779
defining how long the interest granted to the lessee will
extend. Modern oil-and-gas leases typically provide
for a primary term a fixed number of years during
which the lessee has no obligation to develop the
premises -and a secondary term (for "so long there
after as oil and gas produced") once development takes
place. Most jurisdictions require production ofpaying
quantities to keep the lease in effect. -Often short
ened to habendum. Also termed term clause. [Cases:
Mines and Minerals
''This part of the deed was originally used to determine the
interest granted, or to lessen, enlarge, explain or qualify
the premises. But it cannot perform the office of divesting
the estate already vested by the deed; for it is void if it be
repugnant to the estate granted. It has degenerated into
a mere useless form; and the premises now contain the
specification of the estate granted, and the deed becomes
effectual without any habendum. If, however, the premises
should be merely descriptive, and no estate mentioned,
then the habendum becomes efficient to declare the
intention; and it w',11 rebut any implication arising from
the silence of the premises." 4 James Kent, Commentaries
on American Law *468 (George Comstock ed., 11th ed.
1866),
habendum et tenendum (ha-ben-d;)m et t<l-nen-dam).
[Law Latin] Hist. To have and to hold . This formal
phrase appeared in land deeds and defined the estate
or interest being transferred. See HABENDUM CLAUSE;
TENENDlJM; TO HAVE AND TO HOLD.
habentes homines (ha-ben-teez hom-a-neez), n. [Law
Latin "men who have"] Hist. Rich men. Also termed
foesting-men.
habere (ha-beer-ee), vb. [Latin "to have"] Roman law. To
have (the right to) something . This term was some
times distinguished from tenere (to hold) and possidere
(to possess), with habere referring to the right, tenere to
the fact, and possidere to both.
'''Habere' has two meanings; for we say that the owner of
a thing 'has' it and also that a nonowner who holds the
thing 'has' it. Lastly, we use the wore;! in relation to property
deposited with us." Digest ofJustinian 45.1.38.9 (Ulpian,
Ad Sabinum 49).
habere facias possessionem (ha-beer-ee fay-shee-as
pa-zes[h]-ee-oh-nam), n. [Law Latin "that you cause to
have possession"] Hist. A writ giving a successful eject
ment-action plaintiff the possession of the recovered
land. Ifthe sheriff delivered more than the person
was entitled to, a writ of rehabere facias seisinam could
compel the sheriff to return the excess. Often short
ened to habere facias or hab. fa.
habere facias seisinam (ha-beer-ee fay-shee-as see-zi
nam), n. [Law Latin "that you cause to have seisin"] Hist.
A writ of execution commanding the sheriff to give
the applicant seisin of the recovered land . 1hi8 writ
was the proper process for giving seisin of a freehold,
as distinguished from giving only a chattel interest in
land. See SEISIN.
habere facias visum (ha-beer-ee fay-shee-<ls VI-S;)m or
-zam), n. [Law Latin "that you cause to have a view"]
Hist. A writ allowing a litigant to inspect the lands in
controversy. habitual residence
habere licere (ha-beer-ee li-seer-ee), vb. [Latin "to allow
to have"] Roman law. To stipulate to a purchaser's right
to possess and enjoy property undisturbed . The term
denoted a seller's duty to indemnify the purchaser if
the purchaser was evicted. An evicted purchaser could
raise an action on the stipulation or, under Justinian,
an actio ex empto against the seller.
hab.fa. abbr. HABERE FACIAS POSSESSIONEM.
habili et competente forma (hab-a-lI et kom-pa-ten-tee
for-rna). [Latin) Hist. In a fit and competent manner.
habili modo (hab-a-h moh-doh). [Latin] Hist. In a fit
manner; sufficiently.
habilis causa transferendi dominii (hab-a-lis kaw-za
trans-fa-ren-dr da-min-ee-I). [Law Latin] Hist. An
adequate title for transferring the property. The
phrase appeared in reference to the grantor's power
and intention to convey the property; the title had to
be sufficient to support the conveyance ofproperty.
Also spelled habilis causa transferrendi dominii.
habitability. (1890) The condition of a building in
which inhabitants can live free of serious defects that
might harm health and safety <lack of running water
adversely affects the apartment's habitability>.
habitability, implied warranty of. See implied warranty
ofhabitability under WARRANTY (2).
habitancy (hab-a-tan-see). (18c) 1. DOMICILE (1).2. RESI
DENCE.
habit and repute. [fr. Latin habitus et reputatus "held and
reputed"] Scots law. A person's reputation . Marriage
could formerly be constituted ifone was generally held
and reputed to be married. And it was an aggravation
oftheft to be held and reputed a thiet:
habitant (a-bee-ton), n. [French] 1. Hist. French law. A
person holding land in feudal tenure from a seignior.
2. A native ofCanada oHrench descent, esp. one from
the farming class.
habitatio (hab-a-tay-shee-oh), n. [Latin"dwelling"]
Roman law. The right to dwell (in a place); the right of
free residence in another's house; an urban servitude.
This right was usu. given by will and treated as a
personal servitude. See urban servitude under SERVI
TUDE (2). Cf. USUFRUCT; USUS (1).
habitation. (14c) 1. The act ofinhabiting; occupancy. 2.
A dwelling place; a domicile. 3. Civil law. A nontrans
ferable and nonheritable right to dwell in the house
of another. La. Civ. Code art. 630. See RESIDENCE;
DOMICILE. Cf. USUFRUCT.
habit evidence. See EVIDENCE.
habitual, adj. (17c) 1. Customary; usual <habitual late
sleeper>. 2. Recidivist <habitual offender>.
habitnal criminal. See RECIDIVIST.
habitual drunkard. See DRUNKARD.
habitual offender. 1. See RECIDIVIST. 2. See OFFENDER.
habitual residence. See RESIDENCE.
hable (ab-Jl), n. (Law French] Hist. A port or harbor; a
station for ships.
hacienda particular (ah-syen-dah [or hah-see-en-dd]
pahr-tee-koo-Iahr), n. Spanish law. Private property.
hacienda publica (ah-syen-dah [or hah-see-en-dd] poo
blee-kah), n. Spanish law. 1. Public revenue or assets. 2.
The public treasury; economic ministry.
hacienda social (ah-syen-dah [or hah-see-en-dd] soh
syahl), n. Spanish law. Property belonging to a corpo
ration or partnership.
hack, vb. To surreptitiously break into the computer,
network, servers, or database of another person or
organization. Cf. CRACK. hacker, n.
had. Commenced or begun, as used in a statute provid
ing that no legal proceeding may be had (usu. followed
by the words or maintained) <no action for foreclosure
may be had or maintained until the debtor has been
given at least 30 days' notice>.
hadbote. See BOTE (2).
hadgonel (had-ga-nel), n. Hist. A tax or mulct.
Hadley v. Baxendale rule. (1930) Contracts. The principle
that consequential damages will be awarded for breach
ofcontract only ifit was foreseeable at the time ofcon
tracting that this type of damage would result from
the breach. Hadley v. Baxendale, 9 Exch. 341 (1854) .
Hadley v. Baxendale is best known for its impact on a
nonbreaching party's ability to recover consequential
damages, but the case also confirmed the principle that
the nonbreaching party may recover damages that arise
naturally from the breach. See foreseeable damages
under DAMAGES. [Cases: Damages C=:>23.]
"The rationale of the decision appears in Baron Alderson's
noted statement of what came to be known as the two
rules of Hadley v. Baxendale. The first rule was that the
injured party may recover damages for loss that 'may fairly
and reasonably be considered [as] arising naturally, i.e.,
according to the usual course of things, from such breach
of contract itself.' ... The second and more significant
rule went to recovery of damages for loss other than that
'arising naturally' to recovery of what have come to be
known as 'consequential' damages .... By introducing
this requirement of 'contemplation' for the recovery of
consequential damages, the court imposed an important
new limitation on the scope of recovery that juries could
allow for breach of contract. The result was to impose a
more severe limitation on the recovery of damages for
breach of contract than that applicable to actions in tort or
for breach of warranty, in which substantial or proximate
cause is the test." E. Allan Farnsworth, Contracts 12.14,
at 822-23 (3d ed. 1999).
had-not test. See BUT-FOR TEST.
haec est conventio (heek est k.m-ven-shee-oh). [Law
Latin] Hist. This is the agreement. These formal words
commonly prefaced written agreements.
haec estfinalis concordia (heek est fi-nay-lis k;m-kor
dee-;J). [Law Latin] Hist. This is the final agreement.
These were the words that began a fine, a fictitious
judicial proceeding formerly in use as a mode of con
veying land. See FO |
the words that began a fine, a fictitious
judicial proceeding formerly in use as a mode of con
veying land. See FOOT OF THE FINE; FINE.
haec verba. See IN HAEC VERBA. haeredibus et assignatis quibuscunque (ha-red-i-bds
et as-ig-nay-tis kwib-Js-bng-kwee). [Law Latin] Scots
law, To heirs and assignees whomsoever. _ This was a
simple destination phrase.
haereditas. See HEREDITAS.
haeres. See HERES.
haeretico comburendo. See DE HAERETICO COMBU
RENDa.
hafne (hay-vJn), n. [Old English] A haven or port.
hafne court. Hist. Haven courts; one of several courts
anciently held in certain ports in England.
Hague Academy of International Law (hayg). A center
for advanced studies in international law, both public
and private, aimed at facilitating the comprehensive
and impartial examination of problems ofinternational
legal relations . It was founded in the Netherlands in
1923 on the initiative of the Carnegie Endowment for
International Peace and the Institut de Droit Interna
tional. -Also termed Academie de Droit International
de La Haye.
Hague Convention. The short name for anyone of the
many numerous international conventions that address
different legal issues and attempt to standardize proce
dures between nations. [Cases: Treaties
Hague Convention on Protection of Children and
Cooperation in Respect of Intercountry Adoption.
A 1993 international agreement to establish uniform
procedures governing intercountry adoptions . The
Convention has not been widely adopted. The U.S. has
signed but not ratified it.
Hague Convention on the Civil Aspects of Interna
tional Child Abduction. An international convention
(concluded in 1980) that seeks to counteract cross
border child-snatching by noncustodial parents .
This convention created a legal mechanism available
to parents seeking the return of, or access to, their
children. Its purposes are to secure the prompt return
ofchildren who have been wrongfully taken from one
country to another and to enforce custody and visita
tion rights in the contracting countries. The procedure
is summary in nature and does not contemplate con
tinuing hearings on the merits ofa dispute. More than
80 countries are parties to the Convention, including
the United States. 42 USCA 11601-11610. [Cases:
Child Custody C=:>802; Treaties
Hague Convention on the Service Abroad of Judicial
and Extrajudicial Documents. An international
convention, concluded on November 15, 1965, gov
erning procedures for effecting service of process
in a foreign country. More than 35 countries are
parties to the Convention, including the United States.
[Cases: Federal Civil Procedure (;::;)462; Process (;:'c
83; Treaties (,~8.1
Hague Convention on the Taking ofEvidence Abroad
in Civil or Commercial Matters. An international
convention, concluded on October 26, 1968, that
establishes procedures for obtaining evidence in a
781
foreign country, such as taking a deposition abroad.
More than 27 countries are parties, including the
United States. [Cases: Federal Civil Procedure <::=>1261;
Pretrial Procedure Treaties <::=>8.]
Hague Rules. Maritime law. An international agree
ment adopted at the International Convention for the
Unification ofCertain Rules ofLaw Relating to Bills of
Lading in 1924. _ Under the Hague Rules, a carrier is
not liable for losses. [Cases: Shipping <::=> 103, 140.]
Hague Tribunal. Int'llaw. A permanent court ofarbi
tration established by the Hague Peace Conference of
1899 to facilitate immediate recourse to arbitration to
settle international differences . The court was given
jurisdiction over all arbitration cases, unless the parties
agreed to institute a special tribunal. An international
bureau was likewise established to serve as a registry
for the court and to issue communications about the
court's meetings. The court is "permanent" only in the
sense that there is a permanent list of members from
whom arbitrators in a given case are selected. Apart
from making minor changes in the court, the Second
Hague Conference of 1907 provided that, of the two
arbitrators appointed by each party, only one should
be a national of the appointing state.
haircut.!. Securities. The discount required by the
National Association ofSecurities Dealers on the value
ofstock that a brokerage firm holds in its own account
at the time of filing a monthly report about the firm's
net capital condition. [Cases: Securities Regulation
<~::>40.13.] 2. 1he difference between the amount of a
loan and the market value ofthe collateral securing
the loan.
haircut reorganization. See REORGANIZATION (1).
Haitian divorce. See Mexican divorce under DIVORCE.
hale, v. To compel (a person) to go, esp. to court <hale a
party into court>.
half, n. (bef. 12c) One of two equal parts into which a
thing can be divided; MOIETY.
half blood. See BLOOD.
half brother. See BROTHER.
halfendeal (hahv-an-deel), n. [fro Law Latin halfendelel
Hist. Half a thing; a moiety. -Also spelled halfendeal;
halfendeal.
half-mark. See DEMIMARK.
half nephew. See NEPHEW (1).
half niece. See NIECE.
half orphan. See ORPHAN (2).
half-pilotage. See PILOTAGE.
halfplus one. Parliamentary law. A common but inexact
(and often inaccurate) approximation for a majority .
For a body with 100 members, a majority is indeed half
plus one, or 51. But for a body with an odd number of
members, "half plus one" would not be a whole number.
So "a simple majority" is a better choice for deSignat
ing majority rule. -Also termed 50 percent plus one.
See MAfORITY (2). halle-gemot
half-proof. Civil law. 1. Proof established by one witness,
or by a private instrument. See UNUS NULLUS RULE.
2. Prima facie proof that is nonetheless insufficient to
support a sentence or decree.
half-seal. Hist. A seal used in the Court of Chancery to
mark commissions to the Court of Delegates on the
appeal of an ecclesiastical or maritime case. -The use
ofthe seal ended when the Court ofDelegates was abol
ished in 1832. See COURT OF DELEGATES.
halfsection. See SECTION.
halfsister. See SISTER.
half-timer. Hist. In England, a child excused from
full-time attendance at school under the Factory and
Workshop Act of 1908 so that the child could work
part-time in a factory or workshop. The Factory and
Workshop Acts from 1901 to 1911 were repealed by the
Factory and Workshop (Cotton Cloth Factories) Act of
1929 and the Factories Act of 1937.
half-tongue. Hist. In England, a jury empaneled to try
an alien, and composed half ofone nationality and half
of another. The use ofthis type ofjury ended in 1914
with the passage of the Status ofAliens Act.
halfway house. (1970) A transitional hOUSing facility
designed to rehabilitate people who have recently left a
prison or medical-care facility, or who otherwise need
help in adjusting to a normal life. Also termed resi
dential community treatment center.
half-year. See YEAR.
Halifax law. 1. LYNCH LAW; more broadly, an irrevoca
ble punishment carried out after a summary trial. 2.
The summary and unauthorized trial and execution
(usu. by decapitation) of a person accused of a crime.
_ This term comes from the parish of Halifax, in
England, where -according to custom in the forest of
Hardwick -this form ofprivate justice was anciently
practiced by the free burghers against people accused
ofstealing. Thieves could be condemned to death by
beheading on market day. The last such case is said
to have occurred in 1650. -Also termed gibbet law;
Halifax inquest.
haligemot. See HALLMOTE.
hall. (bef. 12c) 1. A building or room ofconsiderable size,
used for meetings ofbodies such as public assemblies,
conventions, and courts. 2. Parliamentary law. The
room or other space in which a deliberative assembly
meets. 3. Hist. A manor house or chief mansion house.
It was called a hall because the magistrate's court was
typically held there.
hallage (hawl-ij), n. (l7c) Hist. A fee or toll due for goods
or merchandise sold in a hall used as a market; a toll
payable to the lord ofa fair or market for commodities
sold in the common hall.
hallazgo (ah-yahz-goh), n. [Spanish] Spanish law. 1. The
finding and taking possession ofownerless property. 2.
The first occupant recognized by law.
halle-gemot (hawl-ga-moht), n. See HALLMOTE.
782 halligan tool
halligan tool. See HOOLIGAN TOOL.
hallmark. (18c) 1. An official stamp affixed by goldsmiths
and silversmiths on articles made ofgold or silver to
show genuineness. 2. A mark of genuineness.
hallmoot. See HALLMOTE.
hallmote (hahl-moht), n. (bef. 12c) 1. Hist. A court
baron; specif., an annual court, presided over by the
lord of the manor, to decide civil disputes between
feudal tenants . The court was usu. held in the manor's
great hall. See COURT BARON. 2. A trade-guild's com
mercial court, in which guild members were tried for
trade-related offenses against the guild. 3. A convention
of citizens in their public hall. -Also termed folkmote.
4. (Erroneously) an ecclesiastical court. Although
this definition appears in many secular legal diction
aries, it is unheard of in canon law. In sense 4, it is
often (erroneously) spelled holymote. Also spelled (in
senses 1-3) hallmoot; halmote; halymote; halle-gemot;
haligemote.
halmote. See HALLMOTE.
halymote (hal-;>-moht). See HALLMOTE.
ham (ham or am). (bef. 12c) 1. A place of dwelling; a
village. This word now usu. appears in compound
form at the end ofplace names, such as Buckingham. 2.
A small (esp. enclosed) pasture; a piece ofland. -Also
spelled hamm. Cf. HAMLET.
hamel. See HAMLET.
hameleta. See HAMLET.
hamesucken (haym-s;>k-;m), n. (bef. 12c) Scots law.
1. Assault on a householder within the house after
breaking in to commit the assault or to commit theft. 2.
The crime ofhousebreaking or burglary accompanied
by violence . This term derives from Anglo-Saxon law
(hamsoen), and literally meant" breaching the peace of
another's home." Also spelled hamesecken; hameso
ken. Also termed hamfare.
"Burglary, or nocturnal housebreaking, burgi latrocinium,
which by our ancient law was called hamesecken, as it is in
Scotland to this day, has always been looked upon as a very
heinous offence ...." 4 William Blackstone, Commentaries
on the Laws of England 223 (1769).
hamfare. See HAMESGCKEN.
hamlet. (bef. 12c) A small village; a part or member ofa
vill. A hamlet in a rural community might consist of
no more than a store, a church, and a few residences.
Also termed hamel; harneleta; hamleta. See VILL. Cf.
HAM.
hamleta. See HAMLET.
hammer, n. Slang. A forced a sale at public auction
<her jewelry was brought to the hammer>. See forced
sale under SALE.
Hammurabi, Code of. See CODE OF HAMMURABI.
hanaper (han-;>-p;>r), n. [Law Latin hanaperium
hamper"] (14c) Hist.1. A basket or hamper used by the
Chancery to store writs and returns. 2. The treasury of
the Chancery, funded from the fees charged for writs.
Cf. FISCUS. Hanaper Office. His!. An office formerly belonging to
the common-law jurisdiction ofthe Chancery Court .
The term derives from the storage ofwrits in a hamper
(in hanaperio). Crown writs, on the other hand, were
stored in the Petty Bag Office. The Hanaper Office was
abolished in 1842. See BAGA.
hand, n. 1. A person's handwriting <a holographic will
must be in the testator's hand>. 2. An instrumental part
<he had a hand in the crime>. 3. One who performs
some work or labor <Hickory was one of the Gales'
hired hands>. 4. (usu. pl.) Possession <the cocaine was
now in the hands of the police>. 5. Assistance <the
carpenter lent a hand to the project>. 6. A measure
oflength equal to four inches, used in measuring the
height of equines, esp. horses <the pony stood ten
hands tall>. [Cases: Weights and Measures (;:::;:-3.] 7.
Hist. An oath <he gave his hand on the matter>. 8. One
oftwo sides or aspects ofan issue or argument <on the
one hand we can argue for imprisonment, on the other
for leniency>.
hand, vb. To give; to deliver < |
one hand we can argue for imprisonment, on the other
for leniency>.
hand, vb. To give; to deliver <he handed over the docu
ments>.
handbill. (I8c) A written or printed notice displayed,
handed out, or posted, usu. to inform interested people
ofan event or ofsomething to be done . Posting and
distribution of handbills is regulated by ordinance or
statute in most localities.
hand down, vb. (17c) To announce or file (a judgment)
in a case . The term was originally used in connection
with an appellate-court opinion sent to the court below;
it was later expanded to include any decision by a court
on a case or point under consideration. [Cases: Appeal
and Error (;:::;:-1181, 1182; Federal Courts (;:::;:-921.]
handfasting. 1. See handfast marriage (3) under MAR
RIAGE (1). 2. See hand fast marriage (4) under MARRIAGE
(1).
handfast marriage. See MARRIAGE (1).
Hand formula. (1972) A balancing test for determin
ing whether conduct has created an unreasonable risk
of harm, first formulated by Judge Learned Hand in
United States v. Carroll Towing Co., 159 F.2d 169 (2d
Cif. 1947) . Under this test, an actor is negligent if
the burden oftaking adequate precautions against the
harm is outweighed by the probable gravity ofthe harm
multiplied by the probability that the harm will occur.
[Cases: Negligence (;:::;:-215.]
''The legal standard applicable to most unintentional tort
cases is that of negligence, defined by Judge Learned Hand
as follows: the defendant is gUilty of negligence if the loss
caused by the aCCident, multiplied by the probability of the
accident's occurring, exceeds the burden of the
tions that the defendant might have taken to avert This
is an economic test.... Although the Hand formula is of
relatively recent origin, the method that it capsulizes has
been the basic one used to determine negligence ever since
negligence was first adopted as the standard to govern
accident cases." Richard A. Posner, Economic Analysis of
Law 6.2, at 122-23 (2d ed. 1977).
handhabend (hand-hab-;>nd), adj. (14c) Rist. (Of a thief)
caught in possession of a stolen item.
783
handhabend, n. [fro Old English aet haebbendre handa
"at or with a having hand"] Hist. 1. The bearing ofstolen
goods in hand or about the person. Cf. BACKBEREND. 2.
A thief or another person caught carrying stolen goods.
3. Jurisdiction to try a person caught carrying stolen
goods. -Also spelled hand-habende.
handicap. See DISABILITY (2).
handicapped child. See CHILD.
hand money. Money paid in hand to bind a bargain;
earnest money paid in cash. See EARNEST MONEY.
hand note. See NOTE (1).
handsale. Hist. A sale memorialized by shaking hands.
Over time, handsale also came to refer to the earnest
money given immediately after the handshake. In
some northern European countries, shaking hands
was necessary to bind a bargain. This custom some
times persists for oral contracts. The Latin phrase for
handsale was venditio per mutuam manuum complex
ionem ("a sale by the mutual joining of hands"). -Also
spelled handsel.
hands-off agreement. (1986) A noncompete contrac
tual provision between an employer and a former
employee prohibiting the employee from using infor
mation learned during his or her employment to divert
or to steal customers from the former employer. [Cases:
Contracts ~U8.]
hand up, vb. (1930) (Of a grand jury) to deliver (an indict
ment) to a criminal court.
handwriting. (15c) Evidence. 1. A person's chirography;
the cast or form ofwriting peculiar to a person, includ
the size, shape, and style of letters, and whatever
individuality to one's writing. [Cases: Evidence
2. Something written by hand; a writing
specimen. Nonexpert opinion about the genuineness
of handwriting, based on familiarity not acquired for
litigation purposes, can authenticate a document. Fed.
R. Evid. 901(b)(2). [Cases: Criminal Law ~452(4);;
Evidence ~480, 561.)
hang, vb. (1848) 1. (Of a jury) to be unable to reach a
verdict <the jury was hung after 12 hours of continu
0us deliberation>. See hung jury under JURY. [Cases:
Criminal Law ~'867; Federal Civil Procedure
1974; Trial ~316.12. To suspend a person above the
ground by a rope tied around the person's neck in order
to cause the person's death. _ The standard past tense
of the verb in sense 2 is hanged, not hung -the latter
being the standard past tense in all other uses of the
verb. See HANGING.
hanged. drawn, and quartered. Rist. An ancient
sentence for high treason, conSisting of the prisoner's
being drawn on a hurdle to the place of execution,
hanged by the neck (but not until dead), disembow
eled, and beheaded, and the body then divided into
four pieces for the king's disposal. The sentence was
abolished in England in 1870. See TREASON.
hanging, n. The killing of someone by suspending the
person above the ground by a rope around the person's happy-slapping
neck. -Death is caused by asphyxiation (by being
hoisted from the ground) or by a sudden breaking of
the cervical vertebrae (by being dropped from a height).
Hanging was a common form ofcapital punishment in
the United States until the 19308. See HANG.
hanging chad. See CHAD.
hanging in chains. Hist. English law. As the punishment
in an atrocious case, the suspending of an executed
murderer's body by chains near where the crime was
committed. Hanging in chains was abolished in
1834.
hanging judge. See JUDGE.
hangman. Archaic. An executioner, esp. one who
executes condemned criminals by hanging.
Hansard (han-s;}rd). The official reports of debates
in the British Parliament. The name derives from
Luke Hansard (1752-1828), printer of the Journal of
the House ofCommons from 1774 to 1828. The name
has varied at different times. In 1892 it became the
Authorised Edition; in 1909 the title was changed to the
Official Report; and since 1943 the name Hansard has
been added to Official Report. -Also termed Hansard
Official Report; Hansard's Debates.
hanse (hans), n. [German] (14c) Hist. 1. A merchant
guild, esp. one engaging in trade abroad. 2. A fee for
entrance to the guild; an impost levied on merchants
not belonging to the guild.
Hanseatic (han-see-at-ik), adj. (17c) Hist. 1. Ofor relating
to the union ofthe Hanse Towns, usu. referred to as the
Hanseatic League. 2. Ofor relating to a hanse or com
mercial alliance.
Hanse Towns (hans). Hist. The collective name of certain
German cities including Lubeck, Hamburg, and
Bremen that allied in the 12th century to protect
and further their mutual commercial interests . This
alliance was usu. called the Hanseatic League. The
League framed and promulgated a code of maritime
law known as the Laws ofthe Hanse Towns, orJus Han
seaticum Maritimum. The League's power peaked in the
14th century, then gradually declined until 1669, when
the last general assembly was held.
Hanse Towns, laws of the. Rist. A uniform maritime
code drawn from the laws of the Hanse towns, esp. that
of Lubeck, published in German at Lubeck in 1597 and
revised and enlarged in 1614.
happiness, right to pursue. (1829) The constitutional
right to pursue any lawful business or activity -in
any manner not inconsistent with the equal rights
of others -that might yield the highest enjoyment,
increase one's prosperity, or allow the development
of one's faculties . This is a penumbral rather than
explicit right under the U.S. Constitution. See the Dec
laration ofIndependence ~ 2 (1776). [Cases: Constitu
tional Law C:::>1107.]
happy-slapping. Slang. An assault on a randomly chosen
victim by a person or group while another person films
the assault with the intention oflater broadcasting or
784 harassment
selling copies ofthe recording . Happy-slapping began
in the early 20005 as a fad in London, in which a teenage
victim was merely slapped or struck with an object such
as a rolled-up newspaper while the assault was recorded
on a cellphone camera. As the fad spread across England
and into Europe, the perpetrators attacked victims of
all ages, and the assaults escalated from mere slaps to
serious bodily injury, rape, and murder.
harassment (ha-ras-mant or har-as-mant). (I8c) Words,
conduct, or action (usu. repeated or persistent) that,
being directed at a specific person, annoys, alarms, or
causes substantial emotional distress in that person
and serves no legitimate purpose. Harassment is
actionable in some circumstances, as when a creditor
uses threatening or abusive tactics to collect a debt.
[Cases: Civil Rights (>1036, 1143.] -harass (ha-ras
or har-as), vb.
same-sex harassment. See same-sex sexual harassment
under SEXUAL HARASSMENT.
sexual harassment. See SEXUAL HARASSMENT.
harbinger (hahr-bin-jar), n. (14c) 1. Hist. In England,
a royal officer who went ahead and was responsible
for securing lodging for troops or for a traveling royal
entourage. 2. A person or thing that predicts what is to
come <a harbinger ofbad news>.
harbor, safe. See SAFE HARBOR.
harboring, n. (14c) The act ofaffording lodging, shelter,
or refuge to a person, esp. a criminal or illegal alien.
[Cases: Aliens, Immigration, and Citizenship (>778;
Compounding Offenses C:--:;3.5.]
harboring an illegal alien. The act ofproviding conceal
ment from detection bv law-enforcement authorities or
shelter, employment, ~r transportation to help a non
citizen remain in the United States unlawfully, while
knowing about or recklessly disregarding the nonciti
zen's illegal immigration status . The crime ofharbor
ing an illegal alien does not require that the offender
be involved in the smuggling of illegal aliens into the
country. 8 USCA 1324. [Cases: Aliens, Immigration,
and Citizenship C=:)778.]
harbor line. A line marking the boundary ofa certain
part of public water that is reserved for a harbor; esp.,
the line beyond which wharves and other structures
may not extend. [Cases: Navigable Waters (>14(1).]
hard asset. See real asset under ASSET.
hard case. (1836) A lawsuit involving equities that tempt
a judge to stretch or even disregard a principle oflaw at
issue. Hence the expression, "Hard cases make bad
law."
hard currency. See CURRENCY.
hard dollars. 1. Cash proceeds given to a seller. 2. The
part of an equity investment that is not deductible in
the first year. Cf. SOFT DOLLARS.
hard goods. See durable goods under GOODS.
hard labor. (18c) Work imposed on prisoners as addi
tional punishment, usu. for misconduct while in prison. Several states (such as Louisiana, Maine, and New
Jersey) impose hard labor as a sentence for a variety
of crimes. Hard labor is also imposed in military sen
tencing. See PENAL SERVITUDE. [Cases: Sentencing and
Punishment c8==' 1067, 1134, 1526.]
hard-look doctrine. (1979) Administrative law. The prin
ciple that a court should carefully review an adminis
trative-agency decision to ensure that the decision did
not result from expediency, pressure, or whim. [Cases:
Administrative Law and Procedure C:)741.]
hard money. See MONEY.
hard sell. A sales practice characterized by slogans,
aggressiveness, intimidation, and urgent decision
making. Cf. SOFT SELL.
hardship. (l3c) l. Privation; suffering or adverSity. 2.
The asperity with which a proposed construction oflaw
would bear on a particular case, sometimes forming a
basis (also known as an argument ab inconvenienti)
against the construction. See AB INCONVENIENT!;
HARD CASE. [Cases: Statutes <>::: 181(2).] 3. family law.
A condition that makes it onerous or impossible for a
child-support obligor to make the required child-sup
port payment. [Cases: Child Support (>254, 458.J 4.
Zoning. A ground for a variance under some zoning
statutes ifthe zoning ordinance as applied to a particu
lar property is unduly oppressive, arbitrary, or confisca
tory; esp., a ground for granting a variance, based on
the impossibility or prohibitive expense ofconforming
the property or its use to the zoning regulation. -Also
termed unnecessary hardship. See VARIANCE (2). [Cases:
Zoning and Planning (>492.]
Hare-Ware voting. See instant-runoff voting under
VOTING.
harm, n. (bef. 12c) Injury, loss, damage; material or
tangible detriment.
accidental |
bef. 12c) Injury, loss, damage; material or
tangible detriment.
accidental harm. 1. Harm not caused by a purposeful
act. 2. Harm not caused by a tortious act.
bodily harm. (16c) Physical pain, illness, or impair
ment ofthe body.
grievous bodily harm. See serious bodily injury under
INJURY.
physical harm. (18c) Any physical injury or impair
ment ofland, chattels, or the human body.
serious bodily harm. See serious bodily injury under
INJURY.
social harm. (1933) An adverse effect on any social
interest that is protected by the criminal law.
"If the phrase 'social harm' is used to include every invasion
of any social interest which has been placed under the pro
tection of a criminal sanction (whether by common law or
by statute), every crime may be said to involve, in addition
to other requirements, (1) the happening of social harm
and (2) the fact that the act of some person was the cause
ofthis harm." Rollin M. Perkins & Ronald N. Boyce, Criminal
Law 830 (3d ed. 1982).
harmful behavior. Conduct that could injure another
person, esp. a child. [Cases: Infants C'":::: 156.]
cumulatively harmful behavior. Family law. Seriously
harmful parental (or caregiver) behavior that, ifcon
tinued for a significant period, will over time cause
serious harm to a child.
immediately harmful behavior. Family law. Seriously
harmful parental (or caregiver) behavior that could
have caused serious injury to a child but that, because
ofthe intervention of an outside force or a fortuitous
event, did not result in any injury.
seriously harmful behavior. Family law. Parental (or
caregiver) behavior that could cause serious injury
to a child in the person's care . Some examples of
seriously harmful behavior are physical battering,
physical neglect, sexual abuse, and abandonment.
harmful child labor. See oppressive child labor under
CHILD LABOR.
harmful error. See reversible error under ERROR (2).
harmless error. See ERROR (2).
harmony. (14c) Agreement or accord; conformity <the
decision in Jones is in harmony with earlier Supreme
Court precedent>. -harmonize, vb.
harrow (har-oh or hJ-roh), n. [fr. Old French haro] (14c)
Hist. In Norman and early English law, an outcry (or hue
and cry) after felons and malefactors. -Also spelled
haro. See HUE AND CRY. Cf. CLAMEUR DE HARO.
Harter Act. Maritime law. An 1893 federal statute reg
ulating a carrier's liability for the loss or damage of
ocean cargo shipped under bills of lading. 46 USCA
app. 190-96. The Act was the primary model for
the Carriage of Goods by Sea Act, which has largely
superseded it in practice. See CARRIAGE OF GOODS BY
SEA ACT. [Cases: Shipping ~103.]
"[T1he Harter Act [was] the world's first legislative attempt
to allocate the risk of loss in ocean transportation between
carrier and cargo interests." Michael F. Sturley, Changing
Liability Rules and Marine Insurance, 24 j. Mar. L. & Com.
119, 119 (1993).
Hart-Scott-Rodino Antitrust Improvement Act. A
federal statute, enacted in 1976, that generally strength
ens the Justice Department's antitrust enforcement
powers, esp. by requiring firms to give notice to the
Federal Trade Commission and the Justice Department
of an intent to merge if one of the firms has annual
revenues or assets exceeding $100 million, and the
acquisition price or value of the acquired firm exceeds
$50 million. 15 USCA 18(a). -Often shortened to
Hart-Scott-Rodino Act (abbr. HSR Act).
hash, vb. To run (a document) through an encryption
algorithm, usu. to secure the contents or to derive a
number unique to the document. The product of
hashing is either run through the encryption algorithm
in reverse to verify that the transmitted message has
not been altered or combined with the sender's private
encryption key to produce a digital signature for the
document.
hash number. A unique numerical code generated by
encryption software for use in creating a digital signature. Also termed hashed number. See DIGITAL
SIGNATURE; HASH; KEY ENCRYPTION.
haspa (has-p"), n. [Law Latin] Hist. The hasp of a door.
Livery of seisin was often made in the doorway of a
structure located on the property being transferred.
hasta (has-t<'l), n. [Latin "spear"]l. Roman law. A sale by
auction, indicated by a spear placed into the ground .
The phrase hastae subicere ("to put under the spear")
meant to put up for sale at auction. 2. Hist. A symbol
used to invest a fief.
Hatch Act. A federal statute, enacted in 1939, that
restricts political-campaign activities by federal
employees and limits contributions by individuals to
political campaigns. 5 USCA 1501-1508. Senator
Carl Hatch sponsored the Act following disclosures
that Works Progress Administration officials were
using their positions to campaign for the Democratic
Party. [Cases: Elections P311.2.j
Hatch-Waxman Act. The popular name of the 1984
federal law that provides incentives for the develop
ment of generic drugs and allows drug-patent owners
to regain the time lost on a patent's term while awaiting
approval ofthe drug from the Food and Drug Admin
istration. Also termed Drug Price Competition and
Patent Term Restoration Act of1984. [Cases: Health
317,319.]
hate crime. See CRIME.
hate speech. See SPEECH.
hat money. Maritime law. A small gratuity traditionally
paid to the master (and sometimes the crew) of a ship
for the care ofthe cargo. Also termed pocket money;
primage. [Cases: Shipping
"Primage and average, which are mentioned in bills of
lading, mean a small compensation or duty paid to the
master, over and above the freight, for his care and trouble
as to the goods. It belongs to him of right, and it is not
understood to be covered by the policy of insurance. For
these charges, as well as for freight, the master has a lien
on the cargo: 3 James Kent, Commentaries on American
Law *232 n. (b) (George Comstock ed., 11th ed. 1866).
Hatsell's Precedents. Parliamentary law. A compilation
of points of order decided in the House of Commons,
published by the House's clerk, John Hatsell, in two
volumes, the first in 1776 and the second in 1781. Hat
sell's compilation was a primary source for the manual
that Thomas Jefferson compiled while presiding over
the United States Senate.
hauber ([h]aw-bJr), n. [Old French] Hist. A high lord;
a great baron.
haulage royalty. See ROYALTY (2).
haustus (haws-tJs), n. [Latin "a drawing"] Roman law.
A species of rustic praedial servitude consisting in the
right to draw water from a well or spring on another's
property the term being common esp. in the form
aquaehaustus. -A right-of-way (iter) to the well was
implied in the easement.
have. See HABE.
have and hold. See HABENDUM CLAUSE (1).
have the floor 786
have the floor. Parliamentary law. To be entitled to speak
after being recognized by the chair.
hawala (ha-wah-h'l), n. [Hindi] A system for transferring
money, usu. across national borders, based on trust and
operating through networks based on family relation
ships or on regional or ethnic affiliations rather than
through banks and financial institutions. -The system
originated in India before the introduction ofwestern
banking practices. It is commonly used in immigrant
communities. In Indian and Pakistani usage, "white
hawala" refers to legitimate transactions and "black
hawala" refers to money-laundering. -Also termed
hundi.
hawaladar (hd-wah-l,,-d;n), n. [Hindi] A hawala
operator.
hawker. (16c) An itinerant or traveling salesperson who
sells goods in a public street, esp. one who, in a loud
voice, cries out the benefits ofthe items offered for
a peddler. - A hawker is usu. required to have a license.
[Cases: Hawkers and Peddlers 03.J
hawking. The act of offering, by outcry, goods for sale
from door to door or on a public street. [Cases: Hawkers
and Peddlers
haybote (hay-boht), n. [fr. French haye "a hedge" +Saxon
bote "an allowance"] Hist. The right or privilege of a
tenant for life or years to have material to repair the
hedges or or to make farming implements.
Also termed hedgebote. See BOTE.
hayward. Hist. 1. An officer of a town or manor respon
sible for maintaining fences and hedges, esp. to prevent
cattle from breaking through to an enclosed pasture.
2. A cattle herder.
Hazantown agreement (hay-zan-town). A type of col
lective-bargaining agreement used in the garment
industry, governing the relationship between a jobber
and the contractors that produce the jobber's garments.
-The agreement does not govern the relationship
between the jobber and its own employees. It governs
the relationship between the jobber and the contrac
tors that manufacture the garments that the jobber
sells, including covenants that the jobber will use only
unionized contractors, will ensure that salaries and
bonuses are appropriately paid, and will contribute to
employee-benefit funds maintained on behalf of the
contractor's employees. This term gets its name from
Hazantown, Inc., the jobber involved in Danielson
v. Joint Bd. ofCoat, Suit & Allied Garment Workers'
Union, 494 F.2d 1230 (2d Cir. 1974). Also termed
jobber's agreement.
hazard, n. (14c) 1. Danger or peril; esp., a contributing
factor to a peril. See PERIL.
extraordinary hazard. Workers' compensation. An
unusual occupational danger that is increased by the
acts of employees other than the injured worker.
Also termed extraordinary danger; extraordinary risk.
[Cases: Workers' Compensation 1-520,678.] imminent hazard. An immediate danger; esp., in envi
ron mental law, a situation in which the continued use
of a pesticide will probably result in unreasonable
adverse effects on the environment or will involve an
unreasonable danger to the survival of an endangered
species. 7 USCA 136(1). [Cases: Environmental Law
~423.1
occupational hazard. (1917) A danger or risk that
is peculiar to a particular calling or occupation.
Occupational hazards include both accidental injuries
and occupational diseases.
2. Insurance. The risk or probability of loss or injury,
esp. a loss or injury covered by an insurance policy.
moral hazard. A hazard that has its inception in
mental attitudes, such as dishonesty, carelessness,
and insanitv. -The risk that an insured will destroy
property or'allow it to be destroyed (usu. by burning)
in order to collect the insurance proceeds is a moral
hazard. Also, an insured's potential interest, if any,
in the burning of the property is sometimes called a
moral hazard. [Cases: Insurance 03055(2).]
physical hazard. A hazard that has its inception in
the material world, such as location, structure, occu
pancy, exposure, and the like.
3. Hist. An unlawful dice game in which the chances of
winning are complicated by arbitrary rules.
hazarder (haz-ar-dar), n. Hist. A player in an unlawful
game ofdice. -Also spelled hazardor.
hazardous, adj. Risky; dangerous.
hazardous cargo. See CARGO.
hazardous contract. See aleatory contract under
CONTRACT.
hazardous employment. See EMPLOYMENT.
hazardous negligence. See NEGLIGENCE.
hazardous substance. (1882) 1. A toxic pollutant; an
imminently dangerous chemical or mixture. [Cases:
Environmental Law 0413.] 2. See hazardous waste
under WASTE (2).
hazardous waste. See WASTE (2).
hazard pay. (1956) Special compensation for work done
under unpleasant or unsafe conditions.
hazing, n. (1850) The practice of phYSically or emotion
ally abUSing newcomers to an organization as a means
ofinitiation. _ In the early 19th century, hazing referred
to beating. Hazing was a well-established custom in
fraternities at Ivy League universities by the mid-19th
century. (One college magazine referred to "the absurd
and barbarous custom of haZing, which has long pre
vailed in the college." 1 Harvard Mag. 413 (1860)).
The first death from hazing was reported at Yale in
1892 (N.Y. Daily News, June 28, 1892). In the late 20th
century, many colleges and universities banned hazing
and many states passed antihazing statutes establishing
criminal penalties. See ANTIHAZING STATUTE.
hazing statute. See ANTIHAZING STATUTE.
787
H.B. See house bill under BILL (3).
H.C. abbr. 1. HOUSE OF COMMONS. 2. HABEAS CORPUS.
HDC. abbr. HOLDER IN DUE COURSE.
he. (bef. 12c) A pronoun of the mascul |
abbr. HOLDER IN DUE COURSE.
he. (bef. 12c) A pronoun of the masculine gender, tradi
tionally used and construed in statutes to include both
sexes, as well as corporations . It may also be read as
they. Because of the trend toward nonsexist language,
fastidious drafters avoid using the generic pronouns
he, him, and his unless the reference is only to a male
person.
head-and-master rule. Hist. The doctrine that the
husband alone is authorized to manage community
property . Some courts have held that the rule is
unconstitutional gender-based discrimination. -Also
termed lord-and-master rule. Cf. EQUAL-MANAGEMENT
RULE.
headborough. See BORSHOLDER.
heading. (17c) A brief title or caption of a section of a
statute, contract, or other writing.
"The headings prefixed to sections or sets of sections
in some modern statutes are regarded as preambles to
those sections. They cannot control the plain words of the
statute, but they may explain ambiguous words ...." P.
St. j. Langan, Maxwell on the Interpretation ofStatutes 11
(12th ed. 1969).
headlease. (1909) A primary lease under which a sublease
has been granted. -Also spelled head lease. -Also
termed primary lease; chieflease. [Cases: Landlord and
Tenant C= 75, 76, 80.]
headlessor. (1933) A lessor on a lease of property that
has been subleased.
head money. (16c) 1. A tax on people who fit within a
designated class; a poll tax. See capitation tax and poll
tax under TAX. [Cases: Taxation C'='2054.]2. A bounty
offered by a government for a prisoner taken at sea
during a naval engagement . This bounty is divided
among the officers and crew in the same manner as
prize money. See PRIZE MONEY. 3. A tax or duty on
shipowners, imposed by an 1882 federal statute, for
every immigrant brought into the United States.
Also termed head tax. 4. Hist. A bounty or reward paid
to a person who killed a band it or outlaw and produced
the head as evidence. See BOUNTY (1); REWARD.
headnote. (1855) A case summary that appears before
the printed judicial opinion in a law report, addresses a
point oflaw, and usu. includes the relevant facts bearing
on that point oflaw. -Also termed syllabus; synopsis;
reporter's syllabus. Cf. SYLLABUS.
"The syllabus or headnote is a brief statement of the propo
sitions of law decided in the case, being in the nature of
a table of contents of the case. The modern method is to
number each proposition in the syllabus, and to indicate,
by corresponding figures, the exact place in the decision
where the point mentioned in the syllabus can be found.
Sometimes, especially in the older reports, the syllabus
is inaccurate or misleading, and it is not safe to rely on
it without first verifying it from the decision." Frank Hall
Childs, Where and How to Find the Law 22 (1922).
headnote lawyer. See LAWYER. health
head of family. A person who supports one or more
people related by birth, adoption, or marriage and
with whom those persons maintain their permanent
domicile . The phrase head offamily appears most
commonly in homestead law. For a person to have the
status of head of family, there must, of necessity, be at
least two people in the family. Also termed head of
afami/y. Cf. HEAD OF HOUSEHOLD. [Cases: Homestead
(;:::J 18.]
head ofhousehold. (1847) 1. The primary income-pro
vider within a family. 2. For income-tax purposes, an
unmarried or separated person (other than a surviving
spouse) who provides a home for dependents for more
than one-half of the taxable year . A head of house
hold is taxed at a lower rate than a single person who is
not head of a household. Cf. HEAD OF FAMILY; HOUSE
HOLDER. [Cases: Internal Revenue (;::=3549.]
headright. (1930) In American Indian law, a tribemem
ber's right to a pro rata portion ofincome from a tribal
trust fund set up under the Allotment Act of 1906.
This type of trust fund is funded largely by mineral
royalties arising from land held or once held by the
tribemember's tribe. [Cases: Indians C=141(2), 192.]
headright certificate. Hist. A certificate issued under
authority of a Republic ofTexas law of 1839 proViding
that a person was entitled to a grant of640 acres if the
person (1) had immigrated to the Republic between I
October 1837 and 1 January 1840, (2) was a head of
household, and (3) actually resided within the Republic
with his or her family . The grant was to be held under
the certificate for three years and then conveyed by
absolute deed to the settler.
head shop. A retail establishment that sells items
intended for use with illegal drugs.
head-silver. See common fine under FINE (4).
head-start injunction. See INJUNCTION.
headstream. The source of a river.
head tax. 1. See poll tax under TAX. 2. HEAD MONEY
(3).
headwater. (18c) 1. (usu. pi.) The part ofa river or stream
that is closest to its source. 2. HEADSTREAM.
health. (bef. 12c) 1. The state ofbeing sound or whole
in body, mind, or souL 2. Freedom from pain or
sickness.
good health. See GOOD HEALTH.
public health. (17c) 1. The health of the community at
large. 2. The healthful or sanitary condition of the
general body of people or the community en masse;
esp., the methods of maintaining the health of the
community, as by preventive medicine and organized
care for the sick . Many cities have a "public health
department" or other agency responsible for main
taining the public health; federal laws dealing with
health are administered by the Department of Health
and Human Services. [Cases: Health C=>350.]
sound health. See SOUND HEALTH.
788 healthcare-insurance receivable
healthcare-insurance receivable. An interest in or claim
under an insurance policy, being a right to payment of
a monetary obligation for healthcare goods or services
provided. UCC 9-104(c).
healthcare lien. See LIEN.
healthcare proxy. See ADVANCE DIRECTIVE (1).
health insurance. See INSURANCE.
health-insurance order. Family law. An order requiring
a parent either to obtain health insurance for a child or
to add a child to an existing health-insurance policy.
Health-insurance orders often include dental insur
ance. [Cases: Child Support
Health Insurance Portability and Accountability Act.
A 1996 federal law that provides additional health
insurance protections to employees by limiting the
effect of preexisting conditions on an employee's
ability to obtain insurance; permitting an employee to
enroll a new dependent acquired by birth, adoption,
or marriage; making it easier for people to maintain
insurance coverage while changing jobs; and helping
businesses employing fewer than 50 workers to obtain
group insurance plans . The Act is codified in various
sections of 18 USCA, 26 USCA, 29 USCA, and 42
USCA. -Abbr. HIPAA. [Cases: Health 257;
Insurance C=1518,2460; Labor and Employment
424.]
health law. (l8c) A statute, ordinance, or code that pre
scribes sanitary standards and regulations for the
purpose ofpromoting and preserving the community's
health. [Cases: Health C=351, 355.]
health-maintenance organization. (1973) A group of
participating healthcare providers that furnish medical
services to enrolled members ofa group health-insur
ance plan. -Abbr. HMO. Cf. MANAGED-CARE ORGANI
ZATION; PREFERRED-PROVIDER ORGANIZATION. [Cases:
Health (;:::>294; Insurance C::::1252.]
health officer. A government official charged with exe
cuting and enforcing health laws. The powers of a
health officer (such as the Surgeon General) are regu
lated bylaw. [Cases: Health C=361.]
hearing. (l3c) 1. A judicial session, usu. open to the
public, held for the purpose ofdeciding issues offact or
oflaw, sometimes with witnesses testifying <the court
held a hearing on the admissibility ofDNAevidence in
the murder case>. 2. Administrative law. Any setting in
which an affected person presents arguments to a deci
sion-maker <a hearing on zoning variations>. [Cases:
Administrative Law and Procedure C=:>469.] 3. In leg
islative practice, any proceeding in which legislators
or their designees receive testimony about legislation
that might be enacted <the shooting victim spoke at
the Senate's hearing on gun control>. See PRELIMINARY
HEARING. [Cases: States 4. Equity practice. A
trial. 5. English law. ORAl. ARGUMENT.
adjudication hearing. (1947) 1. Administrative law.
An agency proceeding in which a person's rights and
duties are decided after notice and an opportunity to be heard. See procedural due process under DL'E
PROCESS. Cf. disposition hearing. [Cases: Administra
tive Law and Procedure G-'-::;;469.] 2. In child-abuse
and neglect proceedings, the trial stage at which the
court hears the state's allegations and evidence and
decides whether the state has the right to intervene
on behalf of the child. [Cases: Infants <>='203.] 3.
In a juvenile-delinquency case, a hearing at which
the court hears evidence ofthe charges and makes a
finding ofwhether the charges are true or not true.
Also termed adjudicatory hearing; adjudicatory pro
ceeding .
adjudicatory hearing (a-joo-di-ka-tor-ee). See adju
dication hearing.
certification hearing. See transfer hearing.
conformity hearing. See CONFORMITY HEARING.
contested hearing. A hearing in which at least one
of the parties has objections regarding one or more
matters before the court.
continued-custody hearing. See shelter hearing.
custody hearing. (1935) Family law. A judicial examina
tion ofthe facts relating to child custody, typically in
a divorce or separation proceeding . Child-neglect
and dependency matters are also often dealt with in
custody hearings. -Also termed custody proceeding.
[Cases: Child Custody (;:::>500; Infants C=:>203.]
Daubert hearing. See DAUBERT HEARING.
dependency hearing. See shelter hearing.
detention hearing. (1959) 1. Criminal law. A hearing
to determine whether an accused should be released
pending triaL See pretrial detention under DETEN
TION. 2. Family law. A hearing held by a juvenile court
to determine whether a juvenile accused ofdelinquent
conduct should be detained, continued in confine
ment, or released pending an adjudicatory hearing.
Cf. adjudication hearing; disposition hearing. [Cases:
Infants C=:>192,203. 3. See shelter hearing.
discharge hearing. See DISCHARGE HEARING.
dispositional hearing. See disposition hearing.
disposition hearing. (1960) Family law. L In child-abuse
and neglect proceedings, after an adjudication hearing
at which the state proves its allegations, a hearing at
which the court hears evidence and enters orders for
the child's care, custody, and control. Typically, the
judge determines a plan for services aimed at reunify
ing or rehabilitating the family. 2. In a juvenile-delin
quency case, after an adjudication hearing at which
the state proves its case against the juvenile or after
a juvenile's pleading true to the charges against him,
a hearing at which the court determines what sanc
tions, if any, will be imposed on the juvenile. At a
disposition hearing, the court balances the best inter
ests ofthe child against the need to sanction the child
for his or her actions. If the juvenile is adjudicated
a delinquent, the probation staff prepares a social
history ofthe youth and his family and recommends
a disposition. After reviewing the social history and
789
various recommendations, the court enters a dispo
sition. Among the possible juvenile sanctions are a
warning, probation, restitution, counseling, or place
ment in a juvenile-detention facility. Probation is the
most common sanction. Also termed dispositional
hearing. Cf. adjudication hearing. 3. See permanency
hearing. [Cases: Infants 0='203.J
evidentiary hearing. (1952) 1. A hearing at which
evidence is presented, as opposed to a hearing at
which only legal argument is presented. 2. See ADMIN
ISTRATIVE PROCEEDING.
exclusionary hearing. (1963) A pretrial hearing con
ducted to review and determine the admissibility of
alleged illegally obtained evidence. [Cases: Criminal
Law 0='394.6.]
fair hearing. (1831) A judicial or administrative hearing
conducted in accordance with due process. [Cases:
Constitutional Law 0='3881, 4027.]
Fatico hearing. See FATICO HEARING.
fitness hearing. See transfer hearing.
Franks hearing. See FRANKS HEARING.
full adversary hearing. See adjudication hearing.
full hearing. (I7c) 1. A hearing at which the parties are
allowed notice of each other's claims and are given
ample opportunity to present their positions with
evidence and argument. 2. See ADMINISTRATIVE
PROCEEDING.
Garcia hearing. See GARCIA HEARING.
|
See ADMINISTRATIVE
PROCEEDING.
Garcia hearing. See GARCIA HEARING.
hearing de novo (dee or di noh-voh). (18c) 1. A review
ing court's decision ofa matter anew, giving no defer
ence to a lower court's findings. [Cases: Appeal and
Error 0='892; Criminal Law C=:'1139; Federal Courts
C:)776.]2. A new hearing ofa matter, conducted as if
the original hearing had not taken place.
independent-source hearing. Criminal procedure. A
hearing to determine whether evidence was obtained
illegally, and ifso, whether the evidence is admissible.
See INDEPENDENT-SOURCE RULE. [Cases: Criminal
Law 0='339.11(2).]
Jackson-Denno hearing. See JACKSON-DENNO HEAR
ING.
Mapp hearing. See MAPP HEARING.
neglect hearing. (1952) Family law. A judicial hearing
involving alleged child abuse or some other situation
in which a child has not been properly cared for by
a parent or person legally responsible for the child's
care. At issue is the civil culpability of the parent
or responsible party and the possible loss of children
into foster care or in extreme cases -the termina
tion of parental rights. [Cases: Infants 0='203.]
omnibus hearing. (1969) Criminal procedure. A hearing
deSigned to bring judicial overSight to a criminal
case at an early stage to make certain that the case
is being handled expeditiously and properly . At an
omnibus hearing, the court is primarily interested in
ensuring that discovery is being conducted properly, hearing
that any necessary eVidentiary hearings have been
scheduled, and that all issues ripe for decision have
been decided.
permanency hearing. (1832) Family law. Under the
Adoption and Safe Families Act, a judicial proceeding
to determine the future, permanent status ofa child
in foster care . Under the Act, the term permanency
hearing replaces the term disposition hearing. 1he per
manency hearing must occur within 12 months of a
child's being placed in foster care. The purpose ofthe
hearing is to determine the final direction of the case,
whether that means going forward with termination
proceedings or continuing plans for family reunifica
tion. -Also termed permanency-planning hearing.
[Cases: Infants ~'=203.]
preliminary hearing. See PRELIMINARY HEARING.
preliminary protective hearing. See shelter hearing.
presentence hearing. See PRESENTENCE HEARING.
pretrial hearing. See PRETRIAL CONFERENCE.
probable-cause hearing. See shelter hearing.
public hearing. (18c) A hearing that, within reason
able limits, is open to anyone who wishes to observe .
Such a hearing is often characterized by the right
to appear and present evidence in a case before an
impartial tribunal. [Cases: Administrative Law and
Procedure
reaffirmation hearing. See REAFFIRMATION HEAR
ING.
review hearing. Family law. After a finding of child
abuse or neglect, a hearing to assess the progress in
the case plan. See CASE PLAN. [Cases: Infants 0='203,
231.]
revocation hearing. (1928) Criminal procedure. A
hearing held to determine whether a parolee should
be returned to prison for violating the terms ofparole.
[Cases: Pardon and Parole 0='85.]
sentencing hearing. See PRESENTENCE HEARING.
shelter hearing. Family law. A hearing shortly after
the state's removal of a child for suspected abuse
or neglect. The hearing, generally held within 24
to 72 hours after the removal, is for the purpose of
determining whether the state has adequate cause
to maintain the children in protective care. -Also
termed shelter-care hearing; continued- custody
hearing; preliminary protective hearing; probable
cause hearing; detention hearing; dependency hearing.
[Cases: Infants 0='192,203.]
suppression hearing. (1955) Criminal procedure. A
pretrial hearing in which a criminal defendant seeks
to prevent the introduction of evidence alleged to
have been seized illegally. [Cases: Criminal Law
394.6.]
termination-of-parental-rights hearing. Family law.
A trial or court proceeding, usu. initiated by a state
agency, that seeks to sever the legal ties between a
parent and child, usu. so that the child can be adopted.
790 hearing examiner
The standard of proof in a termination-of-paren
tal-rights hearing is clear and convincing evidence.
Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. l388
(1982). -Often shortened to termination hearing.
[Cases: Infants C=>203.]
transfer hearing. (1968) Criminal procedure. In a juve
nile-court case, a hearing to determine whether the
case should be transferred to adult criminal court so
that the juvenile may be tried as an adult. Every
state, as well as the District ofColumbia, has a transfer
statute. The United States Supreme Court defined
the due-process requirements for transfer hearings
in Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045
(1966). -Also termed certification hearing; waiver
hearing; fitness hearing. See TRANSFER STATUTE;
MANDATORY WAIVER; STATUTORY EXCLUSION. [Cases:
Infants C=>68.7.]
trial-type hearing. See ADMINISTRATIVE PROCEEDING.
uncontested hearing. A hearing in which either (1) the
parties are in agreement as to all matters before the
court, or (2) one of the parties has failed to appear
despite notice.
unfair hearing. (1915) A hearing that is not conducted
in accordance with due process, as when the defen
dant is denied the opportunity to prepare or consult
with counsel. [Cases: Constitutional Law C=>3879,
3886.]
Wade hearing. See WADE HEARING.
waiver hearing. See transfer hearing.
hearing examiner. See ADMINISTRATIVE-LAW JUDGE.
hearing officer. 1. ADMINISTRATIVE-LAW JUDGE. 2. See
judicial officer (3) under OFFICER (1).
hearsay. (16c) 1. Traditionally, testimony that is given
by a witness who relates not what he or she knows per
sonally, but what others have said, and that is therefore
dependent on the credibility of someone other than
the witness . Such testimony is generally inadmissible
under the rules of evidence. 2. In federal law, a state
ment (either a verbal assertion or nonverbal assertive
conduct), other than one made by the declarant while
testifying at the trial or hearing, offered in evidence
to prove the truth ofthe matter asserted. Fed. R. Evid.
801(c). -Also termed hearsay evidence; secondhand
evidence. Cf. original evidence under EVIDENCE. [Cases:
Criminal Law C=>419; Evidence C=>314-324.]
double hearsay. (1921) A hearsay statement that
contains further hearsay statements within it, none
of which is admissible unless exceptions to the rule
against hearsay can be applied to each level <the
double hearsay was the report's statement that Amy
had heard Joe admit running the red light>. Fed. R.
Evid. 805. -Also termed multiple hearsay; hearsay
within hearsay. [Cases: Criminal Law C=>419(l3);
Evidence C=>314-324.]
hearsay exception. Any of several deviations from the
hearsay rule, allowing the admission of otherwise
inadmissible statements because the circumstances surrounding the statements provide a basis for con
sidering the statements reliable. [Cases: Criminal Law
C=>419(1.10); Evidence C=>314.]
tender-years hearsay exception. A hearsay exception
for an out-of-court statement by a child ten years of
age or younger, usu. describing an act ofphysical or
sexual abuse, when the child is unavailable to testify
and the court determines that the time, content,
and circumstances of the statement make it reliable.
[Cases: Infants C=>20.]
hearsay rule. (1896) The rule that no assertion offered
as testimony can be received unless it is or has been
open to test by cross-examination or an opportunity
for cross-examination, except as provided otherwise
by the rules of evidence, by court rules, or by statute.
The chief reasons for the rule are that out-of-court
statements amounting to hearsay are not made under
oath and are not subject to cross-examination. Fed.
R. Evid. 802. Rule 803 provides 23 explicit exceptions
to the hearsay rule, regardless of whether the out-of
court declarant is available to testify, and Rule 804
provides five more exceptions for situations in which
the declarant is unavailable to testify. [Cases: Criminal
Law C=>419; Evidence C=>314-324.]
"[TJhe great hearsay rule ... is a fundamental rule of
safety, but one overenforced and abused, -the spoiled
child of the family, -proudest scion of our jurytrial rules
of evidence, but so petted and indulged that it has become
a nuisance and an obstruction to speedy and efficient
trials." John H. Wigmore, A Students' Textbook of the Law
ofEvidence 238 (1935).
hearsay within hearsay. See double hearsay under
HEARSAY.
heartbalm statute. A state law that abolishes the rights
ofaction for monetary damages as solace for the emo
tional trauma occasioned by a loss oflove and rela
tionship. The abolished rights of action include
alienation of affections, breach of promise to marry,
criminal conversation, and seduction of a person
over the legal age of consent. Many states today have
enacted heartbalm statutes primarily because of the
highly speculative nature ofthe injury and the poten
tial for abusive prosecution, as well as the difficulties
of determining the cause of a loss. The terminology
in this field is somewhat confusing, since a heartbalm
statute abolishes lawsuits that were known as heart
balm suits; some scholars therefore call the abolition
ary statutes anti-heartbalm statutes. But the prevailing
term is heartbalm statute. -Also written heart-balm
statute. -Also termed heartbalm act; anti-heartbalm
statute; anti-heartbalm act. [Cases: Breach ofMarriage
Promise C=>14; Husband and Wife C=>323, 341; Seduc
tion C=>3.]
"Under the English common law, a broken engagement
might be followed by a lawsuit for breach of promise to
marry .... [TJhe action came to look more like a tort action,
in which damages might be given for the injury to the plain'
tiff's feelings, health and reputation and for expenses such
as costs incurred in preparing for a wedding. Widespread
criticism of the suit for breach of promise to marry (as well
as related tort actions including seduction and alienation
of affections) led to the passage of 'heart balm' statutes
791 heir
abolishing these claims in many jurisdictions in the United
States beginning in the 1930's." Homer H. Clark Jr. & Ann
Laquer Estin, Domestic Relations: Cases and Problems 47
(6th ed. 2000).
hearth money. Hist. 1. A tax of two shillings levied on
every fireplace in England (14 Car. 2, ch. 10). This
extremely unpopular tax was enacted in 1662 during
the reign ofCharles II and abolished in 1688. 2. PETER
PENCE. -Also termed (in sense 1) chimney money.
heat ofpassion. (bef. 12c) Rage, terror, or furious hatred
suddenly aroused by some immediate provocation,
USll. another person's words or actions. At common
law, the heat of passion could serve as a mitigating
circumstance that would reduce a murder charge to
manslaughter. -Also termed sudden heat ofpassion;
sudden heat; sudden passion; hot blood; sudden heat
and passion;furor brevis. Cf. COLD BLOOD; COOL BLOOD.
[Cases: Homicide ~666.]
"To constitute the heat of passion included in this require
ment it is not necessary for the passion to be so extreme
that the slayer does not know what he is doing at the time;
but it must be so extreme that for the moment his action
is being directed by passion rather than by reason." Rollin
M. Perkins & Ronald N. Boyce, Criminal Law 99 (3d ed.
1982).
heavy work. See WORK (1).
hebote. See HEREBOTE.
hedagium (h;:l-day-jee-;:lm), n. [Law Latin] Hist. A toll or
custom due at a wharffor landing goods. The Crown
exempted particular persons and societies from this
tolL
hedge, vb. (l7c) To use two compensating or offsetting
transactions to ensure a position ofbreaking even; esp.,
to make advance arrangements to safeguard oneself
from loss on an investment, speculation, or bet, as when
a buyer of commodities insures against unfavorable
price changes by buying in advance at a fixed rate for
later delivery. [Cases: Commodity Futures Trading
Regulation (;:::":, 10.] -hedging, n.
hedgebote. See HAYBOTE.
hedge fund. (1967) A specialized investment group
usu. organized as a limited partnership or offshore
investment company that offers the possibility of
high returns through risky techniques such as selling
short or buying derivatives . Most hedge funds are not
registered with the SEC and are therefore restricted in
marketing their services to the public.
hedonic damages. See DAMAGES.
hedonistic damages. See hedonic damages under DAMA
GES.
hedonistic utilitarianism. See |
hedonistic damages. See hedonic damages under DAMA
GES.
hedonistic utilitarianism. See UTILITARIANISM.
heeding presumption. See PRESUMPTIO~.
heedlessness, n. (l6c) The quality ofbeing thoughtless
and inconsiderate; esp., conduct involving the disre
gard ofothers' rights or safety. Heedlessness is often
construed to involve the same degree of fault as reck
lessness. See RECKLESSNESS. heedless, adj. hegemonism (hi-jem-;:l-niz-am). (l9c) 1. A philosophical
position advocating hegemony. 2. All forms ofpolitical
extension by means of hegemony.
hegemony (hi-jem-;:l-nee), n. (l6c) 1. Influence, author
ity, or supremacy over others <the hegemony of capi
talism>. 2. The striving for leadership or predominant
authority ofone state ofaconfederacy or union over the
others; political domination <the former Soviet Union's
hegemony over Eastern Europe>. hegemonic (hej
a-mon-ik), adj.
heightened scrutiny. See INTERMEDIATE SCRUTINY.
heinous (hay-n;:ls), adj. (l4c) (Ofa crime or its perpetra
tor) shockingly atrocious or odious. [Cases: Sentencing
and Punishment 1684.] heinousness, n.
heir (air). (l3e) 1. A person who, under the laws of
intestacy, is entitled to receive an intestate decedent's
property. Also termed legal heir; heir at law; lawful
heir; heir general; legitimate heir. Cf. ANCESTOR. [Cases:
Descent and Distribution ~20-43; Wills C:::>SOS.J
"Laymen -and sometimes first-year law students taking
exams -wrongly assume that one who receives rea!
property by will is an heir. Technically, the word 'heir'
is reserved for one who receives real property by action
of the laws of intestacy, which operate today only in the
absence ofa valid will." Thomas F. Bergin & Paul G. Haskell,
Preface to Esrates in Land and Future Interests 14 n.32 (2d
ed.1984).
2. Loosely (in common-law jurisdictions), a person who
inherits real or personal property, whether by will or
by intestate succession. [Cases: Descent and Distribu
tion ~20-43; Wills ~S05.] 3. Popularly, a person
who has inherited or is in line to inherit great wealth.
4. Civil law. A person who succeeds to the rights and
occupies the place of, or is entitled to succeed to the
estate of, a decedent, whether by an act ofthe decedent
or by operation oflaw. The term heir under the civil
law has a more expansive meaning than under the
common law.
afterborn heir. (I8c) One born after the death of an
intestate from whom the heir is entitled to inherit.
See afterborn child under CHILD. [Cases: Descent and
Distribution
apparent heir. See heir apparent.
beneficiary heir (ben-;:!-fish-ee-er-ee). Civil law. An
heir who accepts an inheritance but whose liability
for estate debts is limited to the value of the inheri
tance. -Also termed heir beneficiary. See BENEFIT OF
INVENTORY. Cf. unconditional heir. [Cases: Descent
and Distribution ~119(2).]
bodily heir. See heir ofthe body.
coheir (koh-air). One oftwo or more persons to whom
an inheritance descends. [Cases: Descent and Distri
bution 72, 81, 82.]
collateral heir. (17c) One who is neither a direct descen
dant nor an ancestor of the decedent, but whose
kinship is through a collateral line, such as a brother,
sister, uncle, aunt, nephew, niece, or cousin. Cf.lineal
heir. [Cases: Descent and Distribution ~32,37.1
heir 792
expectant heir. (I7c) An heir who has a reversionary , heir male. Hist. The nearest male blood-relation of a
or future interest in property, or a chance ofsucceed
ing to it. -Also termed heir expectant. See REVER
SION (1); REMAINDER (1). Cf. prospective heir. [Cases:
Descent and Distribution 068.]
"The reader should be aware that one never has an 'heir'
until one is dead; one merely has an 'heir expectant' ....
Thus, to say that an heir 'owns' anything is conceptually
difficult. But ... some unborn heirs may be entitled to the
protection of the courts, and thus be said to have estates."
Thomas F. Bergin & Paul G. Haskell, Preface to Estates in
Land and Future Interests 26 n.13 (2d ed. 1984).
fideicommissary heir (fI-dee-I kom-i-sair-ee). Roman
& civil law. A beneficiary ofproperty who succeeds
the direct (original) heir. See FIDEICOMMISSUM.
fidUciary heir. Roman & civil law. An heir who takes
property as a trustee on behalf of a person who is
not eligible to receive the property immediately. See
FIDEICOMMISSUM.
forced heir. Civil law. (1813) A person whom the testator
or donor cannot disinherit because the law reserves
part ofthe estate for that person. -In Louisiana, only
descendants are forced heirs. La. Civ. Code art. 1493.
See LEGITIME. [Cases: Descent and Distribution
23.]
heir apparent. (14c) An heir who is certain to inherit
unless he or she dies first or is excluded by a valid
will. Also termed apparent heir. Cf. heir presump
tive. [Cases: Descent and Distribution 068.]
"Heirs apparent are such, whose right of inheritance is
indefeaSible, provided they outlive the ancestor; as the
eldest son or his issue, who must by the course of the
common law be heirs to the father whenever he happens
to die." 2 William Blackstone, Commentaries on the Laws
of Eng/and 208 (l766).
heir beneficiary. See beneficiary heir.
heir by adoption. A person who has been adopted by
(and thus has become an heir to) the deceased. -By
statute in most jurisdictions, an adopted child has
the same right ofsuccession to intestate property as a
biological child unless the deceased clearly expresses
a contrary intention. Jurisdictions differ on whether
an adopted child may also inherit from his or her
biological parents or family. The clear majority view,
however, is that upon adoption, a complete severance
ofrights and obligations occurs and the child forfeits
inheritance from all biological relatives.
heir by custom. Hist. In England, a person whose right
of inheritance depends on a particular and local
custom, such as gavelkind and borough English. See
GAVELKIND; BOROUGH ENGLISH.
heir by devise. (1842) One to whom lands are given
by will.
heir conventional. Civil law. One who takes a succes
sion because ofa contract or settlement entitling him
or her to it.
heir expectant. See expectant heir.
heir in tail. See heir special. decedent.
heir ofthe blood. (l6c) An heir who succeeds to an
estate because of consanguinity with the decedent,
in either the ascending or descending line.
heir ofthe body. Archaic. A lineal descendant of the
decedent, excluding a surviving spouse, adopted
children, and collateral relations. -'{he term of art
heirs of the body was formerly used to create a fee
tail <A conveys Blackacre to B and the heirs of his
body>. -Also termed bodily heir. [Cases: Descent
and Distribution 017,21.]
heir presumptive. (l7c) An heir who will inherit if
the potential intestate dies immediately, but who
may be excluded ifanother, more closely related heir
is born. -Also termed presumptive heir. Cf. heir
apparent. [Cases: Descent and Distribution (:::::;68.]
heirs and assigns. (16c) A term ofart formerly required
to create a fee simple <A conveys Blackacre to Band
his heirs and assigns>.
heir special. Hist. An heir who receives property
according to the nature ofthe estate held in fee tail.
Heirs special were said to receive property performam
doni ("by the form ofthe gift"). Also termed heir in
tail. [Cases: Descent and Distribution C-::>29.]
instituted heir. See testamentary heir.
irregular heir. Hist. Louisiana law. A person or entity
who has a statutory right to take property from an
estate in default of the testamentary or legal heirs.
[Cases: Descent and Distribution 074.]
joint heir. (16c) 1. A coheir. 2. A person who is or will
be an heir to both oftwo designated persons at the
death ofthe survivor of them, the word joint being
here applied to the ancestors rather than the heirs.
known heir. (l6c) An heir who is present to claim an
inheritance, the extent of which depends on there
being no closer relative.
laughing heir. (1943) Slang. An heir distant enough to
feel no grief when a relative dies and leaves an inheri
tance (generally viewed as a windfall) to the heir.
lineal heir. (16c) A person who is either an ancestor
or a descendant of the decedent, such as a parent or
a child. Cf. collateral heir. [Cases: Descent and Dis
tribution 020.]
natural heir. (16c) An heir by consanguinity as dis
tinguished from an heir by adoption or a statutory
heir (such as a person's spouse). [Cases: Descent and
Distribution C47(2).J
presumptive heir. See heir presumptive.
pretermitted heir (pree-t;:Jr-mit-id). (1841) A child or
spouse who has been omitted from a will, as when a
testator makes a will naming his or her two children
and then, sometime later, has two more children who
are not mentioned in the will. -Also termed (more
specif.) pretermitted child; pretermitted spouse. See
793
PRETERMITTED-HEIR STATUTE. [Cases: Descent and
Distribution
prospective heir. (1855) An heir who may inherit but
may be excluded; an heir apparent or an heir pre
sumptive. Cf. expectant heir. [Cases: Descent and Dis
tribution C::c68.]
right heir. 1. lUst. The preferred heir to an estate tail,
as distinguished from a general heir. An estate tail
would pass to a general heir only on the failure ofthe
preferred heir and his line. 2. HEIR (1).
testamentary heir (tes-td-men-td-ree or -tree). Civil
law. A person who is appointed as an heir in the dece
dent's wilL Also termed instituted heir.
unconditional heir. Civil law. A person who chooses
expressly or tacitly -to inherit without any reserva
tion or without making an inventory. Cf. beneficiary
heir.
heirdom. (Be) The state ofbeing an heir; succession by
inheritance.
heiress. (17c) 1. Archaic. A female heir. See HEIR (1). 2. A
woman or girl who has inherited or is in line to inherit
great wealth.
heir general. See HEIR (1).
heir-hunter. A person whose business is to track down
missing heirs.
heirless estate. See ESTATE (3).
heirloom. (l5c) 1. An item ofpersonal property that by
local custom, contrary to the usual legal rule, descends
to the heir along with the inheritance, instead ofpassing
to the executor or administrator ofthe last owner. Tra
ditional examples are an ancestor's coat ofarms, family
portraits, title deeds, and keys. Blackstone gave a false
etymology that many have copied: "The termination,
loom, is ofSaxon origin; in which language it signifies
a limb or member; so that an heirloom is nothing else,
but a limb or member of the inheritance." 2 William
Blackstone, Commentaries on the Law ofEngland 427
(1766). In fact, loom derives from Old English geloma
"utensil," and loom meant "implement, tool." 2. Popu
larly, a treasured possession ofgreat sentimental value
passed down through generations within a family.
"Heirlooms, strictly so cailed, are now very seldom to be
met with. They may be defined to be such personal chattels
as go, by force of a special custom, to the heir, along with
the inheritance, and not to the executor or administrator
of the last owner. The owner of an heir loom cannot by
his will bequeath the heirloom, if he leave the land to
descend to his heir; for in such a case the force of custom
will prevail over the bequest, which, not coming into opera
tion until after the decease of the owner, is too late to
supersede the custom .... In popular language the term
'heir-loom' is generally applied to plate, pictures or articles
of property which have been assigned by deed of settle
ment or bequeathed by will to trustees, in trust to permit
the same to be used and enjoyed by the persons for the
time being in possession. under the settlement or will, of
the mansionhouse in which the articles may be placed."
Joshua Williams, Principles ofthe Law ofPersonal Property
13-14 (11th ed. 1881).
heir portioner. See PORTIONER. Heralds' College
heirship. (l3c) 1. The quality or condition of being an
heir. 2. The relation between an ancestor and an heir.
[Cases: Descent and Distribution C::c20-41.J |
The relation between an ancestor and an heir.
[Cases: Descent and Distribution C::c20-41.J
hell-or-high-waterdause. (1980) A clause in a personal
property lease requiring the lessee to continue to make
full rent payments to the lessor even ifthe thing leased
is unsuitable, defective, or destroyed. [Cases: Bailment
C::c20.J
hell-or-high-water rule. (1960) 1. The principle that a
personal-property lessee must pay the full rent due,
regardless of any claim against the lessor, unless the
lessee proves unequal bargaining power or unconscio
nability. [Cases: Bailment C'"='20.J 2. Insurance. The
principle that an insured's automobile-liability policy
will cover the insured while using a vehicle owned by
another if the insured uses the vehicle in a manner
within the scope of the permission granted. [Cases:
Insurance ~2662.1
henceforth, adv. (l4c) From now on <the newly enacted
rule will apply henceforth>.
henfare. Hist. A fine for flight from an accusation of
murder.
Henricus Vetus (hen-n-bs vee-tas). [Law Latin] Henry
the Old (or Elder) . This term was used in early English
charters to distinguish King Henry I from later kings
ofthe same name.
heordpenny (h3rd-pen-ee), n. See PETER-PENCE.
Hepburn Act. A 1906 federal statute that amended
the Interstate Commerce Act to (1) increase the (now
defunct) Interstate Commerce Commission's jurisdic
tion to include pipelines, (2) prohibit free pass~s except
to employees, (3) prohibit common carriers from trans
porting any products (except timber) in which they had
an interest, and (4) require joint tariffs and a uniform
system of accounts. [Cases: Carriers 32(1);
Commerce C::c85.2.]
heptarchy (hep-tahr-kee). 1. A government by seven
rulers. 2. A nation divided into seven governments,
speci. the seven Anglo-Saxon kingdoms of Kent,
Sussex, Essex, Wessex, East Anglia, Mercia, and Nor
thumbria existing before the Norman Conquest.
herald, n. (l3c) 1. In England and Scotland, one of
several officers responsible for keeping genealogical
lists and tables, adjusting armorial bearings, and regu
lating the ceremonies at royal coronations and funerals.
There are six in England and three in Scotland. 2.
Hist. A messenger who announces royal or state proc
lamations, and who carries diplomatic messages (esp.
proclamations of war, peace, or truce) between kings
or countries.
Heralds' College. A royal corporation responsible in
England for granting and recording armorial insignia
and genealogies, and for dealing with matters of pre
cedence. The College was founded by Richard III in
1484, is governed by the Earl Marshal, and consists
of three kings ofarms, six heralds, and four pursuiv
ants. The heralds' books, based on family-lineage
794 herbage
inquiries made throughout England, are considered
good evidence of pedigrees. The heralds' office is still
allowed to make grants of arms and to grant name
changes. -Also termed College ofArms.
herbage (har-bij). (lSc) In England, an easement or
liberty of pasturage on another's land.
herdwerch (hard-wdrk), n. Hist. Herdsmen's work,
or customary labor, done by shepherds and inferior
tenants at the lord's wilL Also spelled heordwerch.
hereafter, adv. (bef. l2c) 1. From now on; henceforth
<because ofthe highway construction, she will hereaf
ter take the bus to work>. 2. At some future time <the
court will hereafter issue a ruling on the gun's admissi
bilitv>. 3. HEREINAFTER <the exhibits hereafter referred
to a~ Exhibit A and Exhibit B>.
here and there. See VALUE DATE.
herebannum (her-d-ban-dm), n. [Law Latin fr. Old
English here "army" + bann "proclamation"] Hist. 1.
A proclamation summoning the army into the field.
2. A mulct or fine for not joining that army when
summoned. 3. A tax or tribute for the support of that
army.
herebote (her-d-boht), n. [fro Old English here "army" +
bod "command"] Hist. In England, a royal edict sum
moning the people to the battlefield; an edict com
manding subjects into battle. Also spelled herebode;
hebote.
hereby, adv. (l3c) By this document; by these very
words <I hereby declare my intention to run for public
office>.
heredad (e-re-dahd), n. Spanish law. 1. An inheritance
or heirship. 2. A piece ofland under cultivation; a cul
tivated farm.
heredad yacente (e-re-dad yah-sen-te). An inheritance
not yet accepted. See hereditas jacens under HEREDI
TAS.
heredero (e-re-der-oh), n. Spanish law. I. An heir or
legatee. 2. An owner ofa cultivated farm.
heredes. See HERES.
heredes a/ioqui successuri (hd-ree-deez ay-lee-oh-kwI
sdk-ses-J-rr). [Latin] Hist. Heirs entitled otherwise to
succeed. -Also termed heredes alioquin success uri.
heredes nati et facti (hd-ree-deez nay-ti et fak-u). [Latin]
Hist. Heirs born and made.
heredes proximi (hJ-ree-deez prok-SJ-mI), n. [Latin]
Nearest or next heirs.
heredes proximi et remotiores (hd-ree-deez prok-sd-mi
et ri-moh-shee-or-eez). [Latin] Hist. Heirs nearer and
more remote.
heredes remotiores (ha-ree-deez ri-moh-shee-or-eez), n.
[Latin] Heirs more remote; relatives other than children
or descendants.
heredipeta (he-rd-dip-d-td), n. [Law Latin] Hist. A leg
acy-hunter; the seeker ofan inheritance. heredis institutio (hd-ree-dis in-sti-t[y]oo-shee-oh). See
INSTITUTIO HEREDIS.
hereditament (her-a-dit-;l-mdnt or hd-red-i-tJ-mJnt).
(lSc) I. Any property that can be inherited; anything
that passes by intestacy. [Cases: Descent and Distri
bution ~8.] 2. Real property; land. [Cases: Property
corporeal hereditament (kor-por-ee-dl). A tangible
item ofproperty, such as land, a building, or a fixture.
[Cases: Fixtures Property~4.J
incorporeal hereditament (in-kor-por-ee-al). An
intangible right in land, such as an easement. 1he
various types at common law were advowsons, annui
ties, commons, dignities, franchises, offices, pensions,
rents, tithes, and ways.
"There are two quite distinct classes of incorporeal her
editaments: 1. Those which may ripen into corporeal her
editaments. Thus a grant to A for life with remainder to
Bin fee simple gave Ban incorporeal hereditament which
becomes corporeal after A's death. 2. Those which can
never become corporeal hereditaments but are merely
rights over the land of another, e.g., rentcharges." Robert
E. Megarry & M. P. Thompson, A Manual of the Law of Real
Property 361 (6th ed. 1993).
hereditary, adj. (15c) Ofor relating to inheritance; that
descends from an ancestor to an heir.
hereditary succession. See intestate succession under
SUCCESSION (2).
hereditas (ha-red-i-tas), n. [Latin] 1. Roman law. An
inheritance by universal succession to a decedent.
This succession applied whether the decedent died
testate or intestate, and whether in trust (ex fideicom
missa) for another or not. The comparable right under
Praetorian law was bonorum possessio, possession of an
inheritance that could be the basis of a right to succeed.
2. Hist. An estate transmissible by descent; an inheri
tance. Also spelled haereditas.
hereditas damnosa (hd-red~i-tas dam-noh-sd). A bur
densome inheritance; an inheritance whose debts
exceed its assets.
hereditas jacens (hd-red-i-tas jay-senz). [Latin iaceo
"to lie"] 1. Property belonging to an estate before an
heir accepts it. This term had a similar meaning at
common law. See ABEYANCE (2).
"Hereditas jacens is the term applied to an inheritance
which has not yet vested, an inheritance, that is to say,
which has been 'delata' to a heres extraneus (i.e. vol un
tarius), but has not yet been acquired by him." Rudolph
Sohm, The Institutes: A Textbook of the History and System
of Roman Private Law 512 Uames Crawford Ledlie trans.,
3d ed. 1907).
2. Hist. A decedent's estate that has no heir or legatee
to take it; an escheated estate. -Also termed caduca.
See ESCHEAT. 3. Hist. An inheritance without legal
owner and thus open to the first occupant.
hereditas legitima (hd-red-i-tas ld-jit-i-md). A suc
cession or inheritance devolving by operation oflaw
rather than by wilL See INTESTACY.
hereditas luctuosa (ha-red-i-tas ldk-choo-oh-sa). A
sad or mournful inheritance; one that disturbs the
795
natural order of mortality (turbato ordine mortali
taUs), as that of a parent inheriting a child's estate.
This term is more literary than legal. Also termed
tristis successio.
hereditas paterna (h<)-red-i-tas p<)-t;lr-n<). [Latin] Hist.
A succession that descends through the father.
hereditas testamentaria (h<)-red-i-tas tes-t<)-men
tair-ee-<). Testamentary inheritance; succession to
an estate under a decedent's will.
heredity. (l6c) 1. Archaic. Intestate succession; the taking
of an inheritance by common-law succession. 2. The
genetic transmission of characteristics from a parent
to a child; the biological law by which characteristics of
a living being tend to repeat themselves in the being's
descendants.
herein, adv. (bef. 12c) In this thing (such as a document,
section, or paragraph) <the due-process arguments
stated herein should convince the court to reverse the
judgment>. _ This term is inherently ambiguous.
hereinafter, adv. (16c) Later in this document <the buyer
agrees to purchase the property described hereinaf
ter>. -Also loosely termed hereafter.
herenach (her-<)-nak), n. [fro Old Irish airchinnich "chief
man"] An archdeacon. -Also spelled erenach.
hereof, adv. (bef. 12c) Of this thing (such as a provi
sion or document) <the conditions hereof are stated
in section 3>.
heres (heer-eez), n. [Latin] Roman law. A successor to
the rights and liabilities of a deceased person; an heir.
-Because the heres succeeded to both the rights and
the debts of the decedent, the office combined that ofa
modern executor with that of an heir at law. The insti
tution of the heres was the essential characteristic of
a testament; if this was not done, the instrument was
called a codicil/us. Also spelled (in Law Latin) haeres.
Pl. heredes (hi:l-ree-deez) or (for haeres) haeredes.
heres actu (heer-eez ak-t[y]oo). [Law Latin] Hist. Heir
by appointment.
heres astrarius (as-trair-ee-<)s). [Law Latin "heir ofthe
hearth"] An heir who has received, by conveyance, an
ancestor's estate during the ancestor's lifetime.
heres de facto (di fak-toh). fLaw Latin "heir from fact"]
Hist. 1. An heir whose status arises from the disseisin
or other wrongful act of the heir's ancestor. See DIS
SEISIN. 2. An heir in fact, as distinguished from an
heir by law (de jure).
heres ex asse (as-ee). [Latin "sole heir"] Roman law. An
heir to the whole estate.
heres ex testamento (eks tes-ti:l-men-to). See heres
factus.
heres extraneus (ek-stray-nee-i:ls). [Latin "extraneous
heir"] Roman law. An external heir; one who had not
been subject to the testator's power (potestas) and
hence not bound to accept the inheritance. PI. heredes
extranei (h<)-ree-deez ek-stray-nee-r). heretofore
heres factus (fak-t<)s). [Latin "made heir"] An heir
appOinted by will; a testamentary heir. Also termed
heres ex testamento; heres institutus. Cf. heres natus.
heres fideicommissarius (fI-dee-r -kom -<)-sair-ee-<)s).
[Latin] Roman law. The person for whose benefit an
estate was given by will to a fiduciary heir. -This
office corresponds loosely to the cestui que trust ofthe
common law. Cf. heres fiduciarius.
heres fiduciarius (fi-d[y]oo-shee-air-ee-i:ls). [Latin
"fidu |
uciarius (fi-d[y]oo-shee-air-ee-i:ls). [Latin
"fiduciary heir"] Roman law. A person made heir by
will, in trust for the benefit ofanother; an heir subject
to a trust. Cf. heres fideicommissarius.
heres in mobilibus (heer-eez in moh-bil-i-b;}s). [Law
Latin] Hist. Heir in movables.
heres institutus (in-sti-t[y]oo-t<)s). See heres factus.
heres legitimus (li:l-jit-i-m<)s). [Latin "lawful heir"]
Roman law. An heir entitled to succeed (on intestacy)
by the laws ofthe Twelve Tables.
heres natus (nay-t<)s). [Latin "heir by birth"] An heir
by reason ofbirth; an heir at law or by intestacy. Cf.
heres factus.
heres necessarius (nes-<)-sair-ee-<)s). [Latin "necessarv
I heir"] Roman law. A slave freed on the testator's death
, and thus compelled to accept the inheritance.
i heres rectus (rek-ti:ls). [Law Latin] Hist. A right or
proper heir.
heres suus (s[y]oo-<)s). [Latin "one's own heir"] 1. A
decedent's proper or natural heir; a lineal descendant
ofthe deceased. 2. Roman law. A free person who was
subject to the testator's power (potestas) but who could
exercise full legal rights upon the testator's death.
heres suus etnecessarius (s[y]oo-<)s et nes-<)-sair-ee-<)s).
[Latin "one's own and necessary heir"] A free person
subject to the decedent's potestas. -These heirs were
called necessary because they became heirs by law, not
by the decedent's choice. But since this was also true
ofslaves, when named heirs in a will, the former class
was deSignated suus et necessarius by way ofdistinc
tion, the word suus denoting that the necessity arose
from the relationship to the decedent.
ultimus heres (;ll-ti-mas). The last or remote heir; the
lord.
heresy (her-<)-see), n. (l3c) 1. Opinion or doctrine
contrary to (usu. Roman Catholic) church dogma. 2.
Hist. In England, an offense against religion, consist
ing not in totally denying Christianity, but in publicly
denying some of its essential doctrines; an opinion on
divine subjects devised solely by human reason, openly
taught, and obstinately maintained. _ This offense is
now subject only to ecclesiastical correction and is
no longer punishable by the secular law. heretical, I
adj.
hereto, adv. (12c) To this document <the exhibits are
attached hereto>.
heretofore, adv. (l3c) Up to now; before this time <a
question that has not heretofore been decided>.
796 hereunder
hereunder, adv. (15c) 1. Later in this document <review
the provisions hereunder before signing the consent
form>. 2. In accordance with this document <notice
hereunder must be provided within 30 days after the
loss>.
herewith, adv. (bef. 12c) With or in this document
<enclosed herewith are three copies>.
herezeld. Hist. In a feudal system, a vassal's best animal
(esp. the best horse, ox, or cow), given in tribute to
the superior upon the vassal's death. Also spelled
hereyeld; herield.
herield. See HEREZELD.
heriot (her-ee-at), n. [fro Old English here "army" +
geatwa "trappings"] Hist. A customary tribute ofgoods
and chattels, payable to the lord of the fee on the tenant's
death. Heriot derives from an earlier feudal service
consisting of military equipment returned to the lord
on the tenant's death; over time it came to refer only to
the chattel payment due at the tenant's death.
"We are told that the ancient heriot (heregeatu, military
apparel) had at one time consisted ofthe horses and arms
lent by the lord to his man which on the man's death were
returned to the lord .... Turning to manorial surveys,
we find it among the commonest of customs that when
a tenant in villeinage dies, the lord shall have the best
beast; sometimes a similar due is taken from the goods of
the dead freeholder, and it is to these customary dues that
the name 'heriot' permanently attaches itself." 1 Frederick
Pollock & Frederic W. Maitland, The History ofEnglish Law
Before the Time ofEdward 1312,317 (2d ed. 1898).
heriot custom. A heriot due by custom . This term is
used primarily to distinguish a heriot service from an
ordinary heriot.
heriot service. A tribute arising from special reserva
tion in a grant or lease oflands, and thus amounting
to little more than rent.
herislit (her-a-sleet or hair-), n. [Old English] Hist. 1. The
act ofsurrendering; laying down ofarms. 2. The crime
ofdeserting from an army.
heritable (her-i-ta-b;Jl), adj. (14c) 1. (Of property) capable
of being inherited. [Cases: Descent and Distribution
(;:~~~8.] 2. (Of a person) capable of inheriting. Also
termed inheritable. [Cases: Descent and Distribution
heritable blood. See BLOOD.
heritable bond. See BOND (2).
heritable jurisdiction. Hist. Scots law. The power of a
laird to try his own people and hand down punish
ments, including death . The laird or dan chief tradi
tionally acted as a supreme court. There was no appeal
from decisions and sentences were usu. carried out
immediately. The Heritable Jurisdiction Act of 1748
abolished this power.
heritable obligation. See OBLIGATION.
heritable property. Scots law. See HERITAGE.
heritable security. See SECURITY.
heritage (her-i-tij), n. Scots law. Property that passed on
death to the owner's heir; esp., land and all the property connected to it (such as a house). Also termed heri
table property.
Her Majesty's Stationery Office. See STATIONERY
OFFICE.
hermeneutics (h<lr-m;J-n[y]oo-tiks), n. (I8c) The art of
interpreting texts, esp. as a technique used in critical
legal studies. hermeneutical, hermeneutic, adj.
Hermogenian Code. See CODEX HERMOGENIANUS.
hesia (hee-zhee-a or hee-shee-a), n. [Law Latin] An
easement.
hetaerarcha (het-ar-ahr-b), n. [Greek hetaera "asso
ciation" + archein "to rule"] Roman law. The head of a
society, corporation, or college.
hetaeria (ha-teer-ee-a), n. [Greek "association"] Roman
law. A society, guild, or college; a fraternity. Also
termed (in English) hetaery.
heterologous, adj. Patents. Of, relating to, or constituting
the DNA ofa foreign organism.
heterologous artificial insemination. See artificial
insemination by donor under ARTIFICIAL INSEMINA
TION.
heuristic (hyuu-ris-tik), adj. (1821) Ofor relating to a
method oflearning or problem-solving by using trial
and-error and other experimental techniques <heuris
tic discovery methods>.
HEW. abbr. The Department of Health, Education,
and Welfare, a former agency of the U.S. government
created in 1953. When the Department ofEducation
was created in 1979, the name of HEW was changed
to the Department of Health and Human Services
(HHS).
Heydon's case, rule in. See MISCHIEF RULE.
HGN test. abbr. HORIZONTAL-GAZE NYSTAGMUS TEST.
HHS. abbr. DEPARTMENT OF HEALTH AND HUMAN
SERVICES.
hiatus. Patents. A gap between the time when a parent
application ceases to be pending (by abandonment or
issuance) and the time a continuing application is filed.
A hiatus breaks the chain ofcontinuity, so that later
applications are not entitled to the effective filing date
of the parent application. Cf. CONTINUITY (2). [Cases:
Patents (;:::> 110.]
hidage (hId-ij), n. Hist. A tax, payable to the Crown,
based on every hide of land. -Also spelled hydage.
See HIDE.
"Of the same nature with scutages upon knights'-fees were
the assessments of hydage upon all other lands, and of
talliage upon cities and burghs. But they all gradually fell
into disuse, upon the introduction of subsidies, about the
time of king Richard II and king Henry IV." 1 William Black
stone, Commentaries on the Laws ofEngland 300 (1765).
hidalgo (hi-dal-goh or ee-dahl-goh), n. [fro Spanish hijo
"son" + algo "property"] In Spain, a man belonging to
the lower nobility; a gentleman of property.
hidalguia (ee-dahl-gee-ya), n. [Spanish] In Spain,
nobility by descent or lineage.
797
HIDC. abbr. HOLDER IN DUE COURSE.
hidden asset. See ASSET.
hidden defect. See DEFECT.
hidden fraud. See fraudulent concealment under CON~
CEALMENT.
hidden tax. See TAX.
hide, n. Hist. (bef. 12c) 1. In England, a measure of
land consisting in as much as could be worked with
one plow, variously estimated as from 30 to 120 acres
but probably determined by local usage . A hide was
anciently employed as a unit oftaxation. Cf. CARUCATE.
2. As much land as would support one family or the
dwellers in a mansion~house. -Also termed (in senses
1 & 2) hide land. 3. A house; a dweIling~house.
hidegild (hId-gild), n. [Old English] Hist. A sum ofmoney
paid by a villein or servant to avoid a whipping. -Also
spelled hidgild; hydegeld; hudegeld.
bidel (hId~;}1 or hid-all, n. [Old English] Hist. A hiding-
place; a place of protection or sanctuary.
hide land. 1. See HIDE (1). 2. See HIDE (2).
high bailiff. See BAILIFF.
High Commission Court. See COURT OF HIGH COMMIS
SION.
High Court. L See HIGH COURT OF JUSTICE. 2. See HIGH
COURT OF JUSTICIARY.
High Court ofAdmiralty. In England, a court exercis
ing jurisdiction in matters relating to shipping, colli~
sian, and salvage cases . The court dates from the 14th
century, and much of its early history concerns prize
and piracy cases. Its jurisdiction varied through the
centuries, sometimes extending into criminal matters
and other areas oflaw not related directly to maritime
issues. The Judicature Acts of 1873-1875 merged the
Court into the High Court as part of the Probate,
Divorce, and Admiraltv Division. The Administra
tion ofJustice Act of 1970 established a new Admi
ralty Court as part ofthe Queen's Bench Division ofthe
High Court. It is regulated by the Supreme Court Act of
1981. Also termed Court ofthe Lord High Admiral;
Court ofAdmiralty. Cf. ADMIRALTY (1).
"To the office of the Lord High Admiral (originally a naval
official concerned with the command of the fleet and the
suppression of piracy and wrecking) there was annexed
a court which acquired a jurisdiction over civil cases of
a maritime nature. Just how and when this happened is
too cloudy and controversial for simple or even accurate
summary, but by the time of Richard II (1377~1400) the
admiral and vice~admiral were transacting enough judicial
business to move Parliament to limit their jurisdiction by
statute to 'a thing done upon the sea,' and in Tudor times
the court was well established as a court of record, doing
a large civil business. It slowly but surely took away most
of their business from the local maritime courts in the
port towns, and attracted the easily aroused jealousy of
the common law courts, as well as the dislike of those who
feared it as a prerogative court .... These factors resulted
in the rather anticlimactic eclipse of the court for almost
two centuries." Grant Gilmore & Charles L. Black Jr., The
Law ofAdmiralty 1~4, at 9~10 (2d ed. 1975). high-probability rule
High Court ofChivalry. Hist. A court of honor having
jurisdiction over matters relating to deeds ofarms and
war, armorial insignia, and precedence. Also termed
Court ofChivalry; Court ofEarl Marshal. See COURT
OF HONOR.
"This Curia Marescalli, or High Court of Chivalry, was
revived by James I as a court of honour, which not only
tried the right to distinctions of honour and coat armour
but also redressed affronts to honour such as slander.
The slander jurisdiction was later denied, leaving it with
ajurisdiction probably confined to disputes over armorial
bearings, which are determined according to the law of
arms. The court, which has only sat once since 1737, is
the last English court to use the procedure of the civil law:'
J.H. Baker. An Introduction to English Legal History 142 (3d
ed. 1990).
High Court ofDelegates. See COURT OF DELEGATES.
High Court of Errors and Appeals. See COURT OF
ERRORS AND APPEALS.
High Court ofJustice. The superior dvil court ofEngland
and Wales. -Often shortened to High Court |
ALS.
High Court ofJustice. The superior dvil court ofEngland
and Wales. -Often shortened to High Court.
High Court of Justiciary (j;}-stish-ee-er~ee). Scots law.
The superior criminal court ofScotland, acting both as
a trial court and as a court offinal criminal appeaL -Its
judges are Lords Commissioners ofJusticiary. -Often
shortened to High Court.
high crime. See CRIME.
high degree ofcare. See great care under CARE.
high diligence. See great diligence under DILIGENCE.
higher court. See court above under COURT.
higher scale. See SCALE (4).
highest and best use. See USE (1).
highest court. See COURT.
highest degree ofcare. See CARE.
highest proved value. See VALUE (2).
high flier. Slang. A security that has strongly attracted
public interest so that investors pay an unusually high
price.
highgrade, vb. 1. To steal rich ore, as from a mine by
a miner. 2. To mine only esp. valuable ore (such as
gold).
high-grade security. See SECURITY.
high justice. See rUSTICE (3).
high-low agreement. (1980) A settlement in which
a defendant agrees to pay the plaintiff a minimum
recovery in return for the plaintiffs agreement to accept
a maximum amount regardless of the outcome of the
trial. Also termed hilo settlement. [Cases: Compro
mise and Settlement c-'104.]
highly prudent person. See REASONABLE PERSON.
high-managerial agent. See AGENT (2).
high misdemeanor. See MISDEMEANOR.
high-probability rule. Marine insurance. The princi~
pIe that an insured may abandon a vessel if it appears
extremely likely that a total loss is imminent. [Cases:
Insurance C::>2237.]
798 high seas
high seas. See SEA.
high sheriff. See SHERIFF (1).
high-test marriage. See covenant marriage under
MARRIAGE (1).
high treason. See TREASO:-.l.
high-water line. See high-water mark under WATER
MARK.
high-water mark. See WATER MARK.
highway. (bef. 12c) 1. Broadly, any main route on land,
on water, or in the air. 2. A free and public roadway
or street that every person may use. [Cases: Highways
"Every thoroughfare which is used by the public, and is,
in the language of the English books, 'common to all the
king's subjects,' is a highway, whether it be a carriage
way, a horse-way, a foot-way, or a navigable river. It is,
says Lord Holt, the genus of all public ways." 3 James Kent,
Commentaries on American Law *432 (George Comstock
ed., 11th ed. 1866).
3. The main public road connecting towns or cities. 4.
The entire width between boundaries of every publicly
maintained way when part is open to public use for
purposes ofvehicular traffic.
common highway. A highway for use by the public for
any purpose of transit or traffic.
public highway. A highway controlled and maintained
by governmental authorities for general use. [Cases:
Highways (;:;018.]
highway act. (usu. pl.) One of a body of statutes gov
erning the laying out, construction, repair, and use
of highways. Also termed highway law. [Cases:
Highways C::>21.]
highwayman. (17c) A highway robber; a person who robs
on a public road.
highway rate. Hist. In England, a tax for the mainte
nance and repair ofhighways.
highway robbery. See ROBBERY.
highway tax. See TAX.
high-yield bond. See BOND (3).
high-yield debt obligation. See high-yield bond under
BOND (3).
higuela (ee-gay-Iah), n. Spanish law. A receipt given by a
decedent's heir, setting forth what property the heir has
received from the estate, and kept as a record.
hijack, vb. (1923) 1. To commandeer (a vehicle or
airplane), esp. at gunpoint. See CARJACK; SKYJACK. 2.
To steal or rob from (a vehicle or airplane in transit).
[Cases: Aviation C::;; 16; Robbery C::;;1.] 3. Hist. To rob
by trickery or violence; esp., to rob (a smuggler or boot
legger) and take illegal goods.
Hilary Rules. (l9c) Hist. A collection of English pleading
rules designed to ease the strict pleading require
ments of the special-pleading system, esp. by limiting
the scope of the general issue in the formed actions
and by forCing the defendant to set up affirmatively
all matters other than a denial ofthe breach ofduty or of the wrongful act. -Promulgated in England in the
1834 Hilary Term, these rules followed an 1828 initia
tive to examine procedural laws and other subjects and
to report to Parliament changes that might be enacted.
The rules had the unintended effect of extending the
reach ofstrict-pleading requirements into new areas of
law. Widespread dissatisfaction with the Hilary Rules
led to the liberalization of the pleading system under
the 1873-1875 Judicature Acts. -Formerly also termed
New Rules.
"The failure of the Hilary Rules ... lay in their insistence on
special pleading as it was understood late in the eighteenth
century. That parties should plead precisely, and clarify
as far as possible the issue between them, is one thing;
that their endeavours to do so should be judged by the
extremely artificial standards of the old system, was quite
another." Theodore F.T. Plucknett, A Concise Hlstorv of the
Common Law416 (5th ed. 1956).
Hilary sittings. In England, a term of court beginning
on January 11 ofeach year and ending on the Wednes
day before Easter. _ The Hilary sittings were known as
Hilary term until 1875. Cf. EASTER SITTINGS; MICHAEL
MAS SITTINGS; TRINITY SITTINGS.
hilo settlement. See HIGH-LOW AGREEMENT.
Hilton doctrine. Civil procedure. The rule that in a
dispute between parties to an oil-and-gas lease, royalty
owners who would lose their rights if the defendant's
lease were terminated are regarded as indispensable
parties to a proceeding challenging the lease. Hilton
v. Atlantic Refining Co., 327 F.2d 217 (5th Cir. 1964).
[Cases: Mines and Minerals C=>78.7(2).]
Himalaya clause. Maritime law. A provision in a bill of
lading extending the carrier's defenses and limitations
under the Carriage of Goods by Sea Act to third parties,
typically employees, agents, and independent contrac
tors. -The Supreme Court has held that this type of
clause must be strictly construed. Robert C. Herd &
Co. v. Krawilllviachinery Corp., 359 U.S. 297, 79 S.Ct.
766 (1959). See CARRIAGE OF GOODS BY SEA ACT. [Cases:
Shipping C::;;, 140(1).]
"The plaintiff was injured while a passenger on the cruise
ship The Himalaya. She sued the master and the boatswain
for their negligence because the carrier was contractually
exempt from all liability. Because the contract did not have
a 'Himalaya clause,' she succeeded. The carrier, having
indemnified its employees, ultimately paid the damages.
It thus lost its contractual exemption indirectly." Michael
J. Sturley, International Uniform Law in National Courts, 27
Va.j. Int'l L. 729, 740 n.lOl (1987).
hinc inde (hink in-dee). [Law Latin] Scots law. On either
side. _ The phrase usu. refers to the respective claims
of parties to a lawsuit.
hine (hIn), 11. Hist. In England, a husbandry servant.
Also spelled hind.
hinefare (hIll-fair), n. Hist. In England, the loss or depar
ture of a servant from the master.
hinegeld (hIn-geld), n. Hist. A ransom for an offense
committed by a servant.
HIPAA (hip-;.}), abbr. HEALTH INSURANCE PORTABILITY
AND ACCOUNTABILITY ACT.
799
hipoteca (ee-poh-tek-ah), n. Spanish law. A mortgage of
real property. See HYPOTHECATION.
hire, vb. (bef. 12c) 1. To engage the labor or services of
another for wages or other payment. 2. To procure the
temporary use of property, usu. at a set price. 3. To
grant the temporary use of services <hire themselves
out>.
hired gun. (1971) Slang. 1. An expert witness who testi
fies favorably for the party paying his or her often
because of that financial relationship rather than
because of the facts. 2. A lawyer who stops at nothing
to accomplish the client's goals, regardless of moral
consequences.
hireling, n. A person who is hired or serves for wages,
esp. one who works only for the sake of payments.
[Cases: Labor and Employment ~23.]
hire-purchase agreement. See LEASE-PURCHASE AGREE
MENT.
hiring. See LOCATIO.
hiring at wilL See employment at will under EMPLOY
MENT.
his. (bef. 12c) A possessive pronoun of the masculine
gender but traditionally used and construed to include
both sexes. Because of the trend toward nonsexist
language, careful drafters now tend to avoid the generic
use of his (and the personal pronouns he and him)
unless the reference is only to a male person.
His Honor; Her Honor. (1827) L A third-person title
customarily given to a judge. 2. A third-person title
customarily given to the mayor of a city. 3. A third
person title given by the Massachusetts Constitution
to the lieutenant governor of the commonwealth. Cf.
YOUR HONOR.
his testibus (his tes-td-bds). [Law LatinI Hist. These
being witnesses . The concluding clause of deeds and
charters typically opened with these words, which
stated the names of the witnesses to the instrument.
This clause appeared in deeds and charters until
the 16th century. -Also spelled hijs testibus; hiis
testibus.
historian. Parliamentary law. An officer charged with
compiling or contributing to an organization's official
history.
historical cost. See acquisition cost (1) under COST (1).
historical jurisprudence. See JURISPRUDENCE.
historic bay. See BAY.
historic-preservation law. An ordinance prohibiting
the demolition or exterior alteration ofcertain historic
buildings or of all buildings in a historic district. [Cases:
Environmental Law C=.::>61-103.]
historic site. A building, structure, area, or property that
is Significant in the history, architecture, archaeology,
or culture of a country, state, or city, and has been so
deSignated by statute. _ A historic site usu. cannot
be altered without the permission of the appropriate
authorities. [Cases: Environmental Law (;-=>78.] hodgepodge act
hit, n. (bef. 12c) 1. A physical strike. 2. Criminal law.
A murder committed for money or on orders from a
gang leader. 3. Criminal law. An instance ofthe taking
ofa drug. 3. Intellectual property. A Single instance of
a computer's connection to a Web page . Counters
keep track of how many visitors a Web page attracts,
and a large number of hits is a major selling point for
advertising. 4. Intellectual property. A Web page identi
fied by an Internet search engine as containing words
matching a user's query. 5. A creative work that is a
popular or a commercial Sllccess.
hit-and-run statute. A law requiring a motorist involved
in an accident to remain at the scene and to give certain
information to the police and others involved. [Cases:
Automobiles ~336.]
hitherto, adv. (l3c) Until now; heretofore.
H.L. abbr. HOUSE OF LORDS.
HLA test. See HUMAN-LEUKOCYTE ANTIGEK TEST.
HMO. abbr. HEALTH-MAINTENANCE ORGANIZATION.
hoard, vb. (bef. 12c) To acquire and hold (goods) beyond
one's reasonable needs, usu. because of an actual or
anticipated shortage or price increase <hoarding food
and medical supplies during wartime>.
hohbler. Hist. In England, a light horseman or bowman;
a tenant bound by his tenure to maintain a small light
horse for military service.
Hobbs Act. A federal anti-racketeering act making it a
crime to interfere with interstate commerce by extor
tion, robbery, or phYSical violence. 18 USCA 1951.
See RACKETEER INFLUENCED AND CORRUPT ORGANI
ZATIONS ACT. [Cases: Extortion and Threats
Robbery ~1.]
hobby loss. See LOSS.
hoc. [Latin] This; with; by; in.
hoc intuitu (hok in-t[y]oO-;}-t[y]oo). [Law Latin] Scots
law. In this prospect. -The phrase appeared in refer
ence to deeds executed in expectation ofan event, such
as a marriage.
hoc loco (hok loh-koh). [Law Latin] Hist. In this place.
hoc nomine (hok nahm-<l-nee). [Law Latin] Hist. In this
name.
hoc ordine (hok or-di-nee). [Law Latin] Jlist. In this
order.
hoc titulo (hok tit-Y<l-loh ortich-d-loh). [Law Latin] Hist.
Under this title.
|
ok tit-Y<l-loh ortich-d-loh). [Law Latin] Hist.
Under this title.
hodgepodge. (l5c) 1. HOTCHPOT (1). 2. An unorganized
mixture.
hodgepodge act. (1883) A statute that deals with incon
gruous subjects.
"Hodge-Podge Act. ... Such acts, besides being evident
proofs of the ignorance of the makers of them, or of their
want of good faith, are calculated to create a confusion
which is highly prejudicial to the interests ofjustice, ...
In many states bills, except general appropriation bills,
can contain but one subject, which must be expressed in
the title." 1 John Bouvier, Bouvier's Law Dictionarv 1444
(8th ed. 1914).
800 hold
hold, n. l. An order to preserve something or to delay or
postpone an action.
litigation hold. A notice issued in anticipation of
a lawsuit or investigation, ordering employees to
preserve documents and other materials relevant to
that lawsuit or investigation. [Cases: Federal Civil
Procedure
2. Archaic. In England, tenure . This word occurs
most often in conjunction with others -for example,
freehold, leasehold and rarely in its separate form.
See HOLDING (4).
hold, vb. (bef. 12c) 1. To possess by a lawful title <Sarah
holds the account as her separate property>. 2. (Of
a court) to adjudge or decide as a matter of law (as
opposed to fact) <this court thus holds the statute to
be unconstitutional>. Cf. FI!'ID. 3. To direct and bring
about officially; to conduct according to law <we must
hold an election every two years>. 4. To keep in custody
or under an obligation <I will ask the judge to hold you
accountable>. 5. To take or have an estate from another;
to have an estate on condition of paying rent or per
forming service <James holds Hungerstream Manor
under lease>. 6. To conduct or preside at; to convoke,
open, and direct the operations of <Judge Brown holds
court four days a week>. 7. To possess or occupy; to be
in possession and administration of <Jones holds the
office of treasurer>.
holdback, n. An amount withheld from the full payment
of a contract pending the other party's completion
of some obligation, esp. to ensure that a contractor
finishes the work agreed on beforehand. The terms
of a holdback are typically expressed in the contract.
The device gives the contractor an incentive to finish
the work, and the other party security that the work
will be finished. hold back, vb.
holder. (14c) 1. A person who has legal possession of
a negotiable instrument and is entitled to receive
payment on it. [Cases: Bills and Notes G-~427(1).] 2.
A person with legal possession of a document of title
or an investment security. 3. A person who possesses
or uses property.
holder for value. (I8c) A person who has given value
in exchange for a negotiable instrument. Under the
UCC, examples of "giving value" include acquiring a
security interest in the instrument and accepting the
instrument in payment of an antecedent claim. UCC
3-303(a). -Also termed bona fide holder for value.
[Cases: Bills and Notes G-~352.1
holder in due course. (1882) A person who in good
faith has given value for a negotiable instrument that
is complete and regular on its face, is not overdue, and,
to the possessor's knowledge, has not been dishonored.
Under UCC 3-305, a holder in due course takes the
instrument free of all claims and personal defenses,
but subject to real defenses. -Abbr. HDC; HIDe.
Also termed due-course holder. [Cases: Bills and Notes
P327-384.] holder in good faith. (18c) One who takes property or
an instrument without knowledge of any defect in its
title.
holder of record. See STOCKHOLDER OF RECORD.
hold harmless, vb. (18c) To absolve (another party) from
any responsibility for damage or other liability arising
from the transaction; INDEMNIFY. -Also termed save
harmless. [Cases: IndemnityP25, 31(4).]
hold-harmless agreement. (1939) A contract in which
one party agrees to indemnify the other. Also termed
save-harmless agreement. See INDEMNITY. [Cases:
Indemnity (>~)25-33.1
hold-harmless clause. See INDEMNITY CLAUSE.
holding, n. (15c) 1. A court's determination of a matter of
law pivotal to its decision; a principle drawn from such
a decision. Cf. OBITER DICTUM. [Cases: Courts (;=:>88.]
2. A ruling on evidence or other questions presented
at trial. 3. (usu. pl.) Legally owned property, esp. land
or securities. 4. Hist. In feudal law, tenure.
holding cell. See JAIL.
holding charge. (1949) A criminal charge of some minor
offense filed to keep the accused in custody while pros
ecutors take time to build a bigger case and prepare
more serious charges.
holding company. See COMPA~Y.
holding-company tax. See TAX.
holding over. 1. A tenant's action in continuing to occupy
the leased premises after the lease term has expired.
Holding over creates a tenancy at sufferance, with
the tenant being referred to as a holdover. See tenancy
at sufferance under TENANCY. [Cases: Landlord and
Tenant (>:;;:090, 119(2).] 2. Parliamentary law. An offi
cer's continued tenure beyond the term for which he or
she was elected, usu. because a successor has not been
elected or cannot yet assume the office.
holding period. (1935) Tax. The time during which a
capital asset must be held to determine whether gain
or loss from its sale or exchange is long-term or short
term. [Cases: Internal Revenue 0.:::>3260; Taxation
3465-3469.]
holding zone. See ZONE.
hold order. (1945) A notation in a prisoner's file stating
that another jurisdiction has charges pending against
the prisoner and instructing prison officials to alert
authorities in that other jurisdiction instead of releas
ing the prisoner.
hold out, vb. (16c) I. To represent (oneself or another)
as having a certain legal status, as by claiming to be an
agent or partner with authority to enter into transac
tions <even though he was only a promoter, Schwartz
held himself out as the principal>. [Cases: Principal
and Agent P99.] 2. To refuse to yield or submit; to
stand firm <Womack held out for a higher salary and
better benefits>.
holdover clause. See TRAILER CLAUSE.
holdover tenancy. See tenancy at sufferance under
TENA:-.1CY.
holdover tenant. See TENANT.
hold pleas. Archaic. To hear or try cases.
holdup. See STICKUP.
holiday. See LEGAL HOLIDAY.
holograph (hol-<l-graf), n. (17c) A document (such as
a will or deed) that is handwritten by its author.
The majority rule is that a holographic will need not
be entirely handwritten -only the "material provi
sions" to take into account the popular use of fill
in-the-blank will forms. This is also the position of the
Uniform Probate Code. -Also termed olograph; auto
graph. Cf. ONOMASTIC; SYMBOLIC. [Cases: Wills
130-135.]- holographic, adj.
holographic will. See WILL.
holymote. See HALLMOTE (4).
homage (hom-ij). (14c) In feudal times, a ceremony that
a new tenant performed for the lord to acknowledge
the tenure. _ This was the most honorable service that
a free tenant might do for a lord. In the ceremony,
kneeling before the lord, the tenant placed his hands
between the lord's hands while saying, "I become your
man from this day forward, oflife and limb and earthly
honor, and to you will be faithful and loyal, and bear
you faith, for the tenements that I claim to hold ofyou,
saving the faith that lowe unto our sovereign lord the
king, so help me God."
"Homage is an oath of fidelity, acknowledging himself to be
the lord's man: wherein the tenant must be ungirt, uncov
ered, kneel upon both knees, and hold both his hands
together between the lord's hands Sitting before him. This
is to be done only to the lord himself." Sir Henry Finch, Law,
or a Discourse Thereof143 (1759).
homage ancestral (hom-ij an-ses-tr<ll). [Law French]
A type ofhomage in which a tenant and the tenant's
ancestors have held immemorially ofanother by the
service ofhomage. -This long-standing relationship
bound the lord to warrant the title and to hold the
tenant clear of all services to superior lords. -Also
spelled homage auncestral (aw-mahzh on-se-stral).
homage liege (hom-ij leej). Homage due the sovereign
alone as supreme lord, done without any saving or
exception ofthe rights ofother lords. Also termed
homagium ligium (h<l-may-jee-<lm II-jee-dm).
homage jury. See JURY.
homagio respectuando (h<l-may-jee-oh ri-spek-choo-an
doh), n. [Law Latin "homage to the respected"] Hist. A
writ to the escheator commanding the delivery ofseisin
oflands to the heir ofthe king's tenant, even though the
heir had not performed homage.
homagium (ha-may-jee-<lm), n. [Law Latin] A formal
ceremony in which a feudal tenant acknowledged the
tenure granted by a lord; HOMAGE.
homagium ligium. See homage liege under HOMAGE.
homagium planum (play-n<lm), n. [Law Latin "plain
homage"] Hist. A type of homage binding the homager to nothing more than fidelity, without obli
gation either of military service or of attendance in
the superior's courts.
homagium reddere (red-<l-ree), n. [Law Latin "to
renounce homage"] Hist. The process, prescribed
in feudal law by a set form and method, by which a
vassal disowns and defies the lord.
homagium simplex (sim-pleks), n. [Law Latin "simple
homage"] Hist. A type ofhomage that acknowledges
tenure, while reserving the rights ofother lords.
hombre bueno (awm-bray bway-noh), n. Spanish law.
I. An arbitrator chosen by the parties to a suit. 2. A
judge. 3. A citizen in good standing; esp., one who is
competent to testify in a suit.
home. (bef. 12c) A dwelling place. See FAMILY HOME.
manufactured home. Secured transactions. A struc
ture, transportable in one or more sections, that when
traveling is 8 body feet or more in width or 40 body
feet or more in length, or, when erected on site, is 320
or more square feet, and that is built on a perma
nent chassis and designed to be used as a dwelling
with or without a permanent foundation when con
nected to the required utilities, and that has within it
plumbing, heating, air-conditioning, and electrical
systems. UCC 9-102(a)(36). [Cases: Secured Trans
actions
matrimonial home. See matrimonial domicile under
DOMICILE.
tax home. See TAX HOME.
home-equity line ofcredit. See home-equity loan under
LOAN.
home equity loan. See I,OAN.
homeless shelter. See SHELTER.
home loan bank. See FEDERAL HOME LOAN BANK.
home office. 1. A corporation's principal office or head
quarters. 2. (cap.) In England, the Department of the
Secretary of State for Home Affairs, responsible for
overseeing the internal affairs of the country.
homeowners' association. See ASSOCIATION.
homeowner's equity loan. See LOAN.
homeowner's insurance. See INSURA::--lCE.
homeowner's policy. See INSURANCE POLICY.
Home Owners Warranty. A warranty and insurance
program that, among other coverage, insures a new
home for ten years against major structural defects.
_ The program was developed by the Home Owners
Warranty Corporation, a subSidiary ofthe National
Association of Home Builders. Builders often provide
this type of coverage, and many states provide similar
warranty protection by statute. Also spelled Home
Owners' Warranty. -Abbr. HOW. [Cases: Antitrust
and Trade Regulation C=>208.]
home port. See PORT.
home-port doctrine. Maritime law. The rule mandat
ing that a vessel engaged in interstate and foreign
802 home rule
commerce is taxable only at its home port, usu. where
the vessel is registered. [Cases: Taxation C:=>2212.J
home rule. (1860) A state legislative provision or action
allocating a measure of autonomy to a local govern
ment, conditional on its acceptance ofcertain terms.
Cf. LOCAL OPTION. [Cases: Municipal Corporations
(;:::::65.]
"Home rule in the United States was sometimes envisioned
in its early days as giving the cities to whom such rule was
granted full-fledged sovereignty over local affairs, thus
bringing about dual state and local sovereignty along the
national plan of federal and state governments. But such
local sovereignty has never delleloped, nor have any clear
cut distinctions between state and local power." Osborne
M. Reynolds Jr., Handbook of Local Government Law 35,
at 96 (1982). |
ne
M. Reynolds Jr., Handbook of Local Government Law 35,
at 96 (1982).
home-rule charter. See CHARTER (2).
homestall. Rist. Homestead.
home state. Family law. L 'Ihe state where a person is
domiciled. 2. In an interstate child-custody dispute
governed by the Uniform Child Custody Jurisdiction
and Enforcement Act, the state where a child has lived
with a parent or a person acting as a parent for at least
six consecutive months immediately before the pro
ceeding.lCases: Child CustodyC~'736.J
home-state jurisdiction. See rURISDICTION.
homestead. (bef. 12c) 1. The house, outbuildings, and
adjoining land owned and occupied by a person or
family as a residence. -As long as the homestead does
not exceed in area or value the limits fixed by law, in
most states it is exempt from forced sale for collection
of a debt. Also termed homestead estate. See HOME
STEAD LAW. [Cases: Homestead <:::=:>58-89.]
business homestead. (1882) The premises on which a
family's business is located . In some states, business
homesteads are exempt from execution or judicial sale
for most kinds of debt. [Cases: Homestead
constitutional homestead. (1851) A homestead, along
with its exemption from forced sale, conferred on the
head of a household by a state constitution. -Also
termed statutory homestead; pony homestead. [Cases:
Homestead (;::">3,30.)
pony homestead. See constitutional homestead.
probate homestead. (1881) A homestead created by a
probate court from a decedent's estate for the benefit of
the decedent's surviving spouse and minor children.
-Under most statutes providing for the creation of
a probate homestead, it is exempt from forced sale
for the collection of decedent's debts. The family can
remain in the home at least until the youngest child
reaches the age of majority. Many states allow the
surviving spouse to live in the home for life. In a few
states, such as Texas, the right to a probate home
stead is constitutional. See family allowance, spousal
allowance under ALLOWANCE; HOMESTEAD LAW. Cf.
life estate under ESTATE (4). Homestead
134-153.]
statutory homestead. See constitutional homestead. 2. A surviving spouse's right of occupying the family
home for life . In some states, the right is extended
to other dependents ofa decedent. [Cases: Homestead
140-143.]
homesteader. (1872) One who acquires or occupies a
homestead. [Cases: Homestead C:=> 16-29; Public Lands
C:~'35.J
homestead estate. See HOMESTEAD.
homestead exemption. See HOMESTEAD LAW.
homestead-exemption statute. See HOMESTEAD LAW.
homestead law. (1847) A statute exempting a home
stead from execution or judicial sale for debt, unless
all owners, usu. a husband and wife, have jointly mort
gaged the property or otherwise subjected it to credi
tors' claims. -Also termed homestead exemption;
homestead-exemption statute; homestead right. [Cases:
Homestead C:=> 1, lIB.]
"Almost all states also have legislative provisions,
commonly referred to as homestead laws, designed to
protect the family home from the reach of certain classes
of creditors.... The protection afforded by an exemption
statute is not absolute. A federal tax claim may be satisfied
from 'exempt property.' A number of states make Similar
exceptions for state taxes, claims for alimony and child
support, materialmen and mechanics' liens. By statute in
most states, case law in others, purchase money mort
gages and security interests are generally not affected by
an exemption statute." David G. Epstein & Steve H. Nickles,
Consumer Law in a Nutshell 384-85 (2d ed. 1981).
homestead right. See HOMESTEAD LAW.
home-study report. Family law. A summary ofan inves
tigation into a child's home, family environment, and
background, usu. prepared by a social worker when a
child has been removed from his or her home because of
abuse or neglect, but also prepared after a similar inves
tigation of the home of potential adoptive parents.
Often shortened to home study. Also termed custody
evaluation; social study. [Cases: Infants G:::>20B.J
home-style exemption. Copyright. A provision in the u.s. Copyright Act allOWing for the public airing of
radio and television broadcasts in public-accommo
dation establishments, such as bars and restaurants,
with immunity from liability for infringement. The
exemption is so named because the equipment used for
the airing must be a single receiver ofthe type typically
found in homes. 17 USCA l10(5). [Cases: Copyrights
and Intellectual Property C:=>67.1.]
homicide (hom-J-Sld), n. (14c) 1. The killing of one
person by another. [Cases: Homicide C:=>500.] 2. A
person who kills another. -homicidal, adj.
"The legal term for killing a man, whether lawfully or
unlawfully, is 'homicide.' There is no crime of 'homicide.'
Unlawful homicide at common law comprises the two
crimes of murder and manslaughter. Other forms of
unlawful homiCide have been created by statute: certain
new forms of manslaughter (homicide with diminished
responsibility, and suicide pacts), infanticide, and causing
death by dangerous drilling." Glanville Williams, Textbook
ofCriminal Law 204 (1978).
criminal homicide. (I850) 1. Homicide prohibited and
punishable by law, such as murder or manslaughter.
[Cases: Homicide C=>525, 656.] 2. The act of pur
posely, knowingly, recklessly, or negligently causing
the death ofanother human being. Model Penal Code
210.1.
"Criminal homicide is everywhere divided into categories
that reflect the historical distinction in English law between
murder and manslaughter. American statutory formations
have varied the terminology and the precise classifications;
many statutes create more than two forms of criminal
homicide, for purposes of definition and/or punishment.
These variations notwithstanding, it is usually possible to
discern a category that corresponds to the common-law
crime of murder, the paradigm of which is a deliberate
killing without legal justification or excuse, and a category
that corresponds to the common-law crime of manslaugh
ter and comprises killings that either are committed in cir
cumstances which substantially mitigate their intentional
aspect or are not intentional. In common speech as well
as in the law, murder refers to the most serious criminal
homicides, and manslaughterto those that may be serious
crimes for which a substantial penalty is imposed but lack
the special gravity of murder: Lloyd L. Weinreb, "Homicide:
Legal Aspects," in 2 Encyclopedia ofCrime and justice 855,
857 (Sanford H. Kadish ed., 1983).
criminally negligent homicide. See negligent
homicide.
culpable homicide. Scots law. A wrongful act that
results in a person's death but does not amount to
murder. Cf. MANSLAUGHTER.
excusable homicide. (18c) 1. Homicide resulting from
a person's lawful act, committed without intention
to harm another. [Cases: Homicide C=>750.] 2. See
justifiable homicide (1).
felonious homicide. (18c) Homicide committed unlaw
fully, without legal justification or excuse. -This is
the category into which murder and manslaughter
falL
homicide by abuse. (1989) Homicide in which the per
petrator, under circumstances showing an extreme
indifference to human life, causes the death of the
perpetrator's dependent -usu. a child or mentally
retarded person. [Cases: Homicide C=>533.]
homicide by misadventure. See ACCIDENTAL KILLING.
homicide per infortunium (par in-for-t[y]oo-nee-am).
[Latin "homicide by misfortune"] (1856) The uninten
tional killing ofanother while engaged in a lawful act;
ACCIDENTAL KILLING. See PER INFORTUNIUM. [Cases:
Homicide C=>762.]
innocent homicide. (1884) Homicide that does not
involve criminal guilt.
justifiable homicide. (18c) 1. The killing of another
in self-defense when faced with the danger ofdeath
or serious bodily injury. -Also termed excusable
homicide. See SELF-DEFENSE (1). 2. A killing mandated
or permitted by the law, such as execution for a capital
crime or killing to prevent a crime or a criminal's
escape. [Cases: Homicide C=>752-756.]
"It should be noted that a justifiable homicide is not
criminal, since it is a killing which the law has either com
manded or permitted: the actus in such a case is not legally
punishable, and therefore we may perhaps say that it is an
actus of killing which is not reus. As we shall see in most cases ofjustifiable homicide the killing is intentional, and
therefore the mental element of criminal responsibility
is clearly present: but there is no cri me com mitred since
there is no actus reus." J,W. Cecil Turner, Kenny's Outlines
ofCriminal Law 109 (16th ed. 1952).
"English lawyers once distinguished between 'excusable'
homicide (e.g. accidental non-negligent killing) and 'justifi
able' homicide (e.9-killing in self-defence or in the arrest
of a felon) and different legal consequences once attached
to these two forms of homicide. To the modern lawyer this
distinction has no longer any legal importance: he would
simply consider both kinds of homicide to be cases where
some element, negative or positive, required in the full
definition of criminal homicide (murder or manslaughter)
was lacking. But the distinction between these two differ
ent ways in which actions may fail to constitute a criminal
offence is still of great moral importance. Killing in self
defence is an exception to a general rule making killing
punishable; it is admitted because the policy or aims which
in general justify the punishment of killing (e.g. protection
of human life) do not include cases such as this. In the case
of 'justification' what is done is regarded as something
which the law does not condemn, or even welcomes." H.L.A.
Hart, "Prolegomenon to the Principles of Punishment," in
Punishment and Responsibility I, 13 (1968).
negligent homicide. (1859) Homicide resulting from
the careless performance of a legal or illegal act in
which the danger of death is apparent; the killing ofa
human being by criminal negligence. Also termed
criminally negligent homicide. See criminal negligence
under NEGLIGENCE. [Cases: Homicide C:~)708.1
"There is no common-law offense known as 'negligent
homicide.' As a matter of the common law of crimes
any killing below the grade of manslaughter is innocent
homicide. Some of the new penal codes have a classifica
tion scheme which (omitting degrees or other variations)
divides criminal homicide into murder, manslaughter
and criminally negligent homicide -or simply negligent
homicide. For the most part, however, this has been
achieved by removing from manslaughter the offense of
homicide by criminal negligence and using this to consti
tute the newly named offense. Thus, though there are a
few exceptions, most states will have no homicide offense
which would be below common-law manslaughter." Rollin
M. Perkins & Ronald N. Boyce, Criminal Law 116-17 (3d
ed. 1982).
nonfelonious homicide. A killing that is legally either
excusable or justifiable. See excusable homicide; jus
tifiable homicide.
reckless homicide. (1866) The unlawful killing of
another person with conscious indifference toward
that person's life. Cf. MANSLAUGHTER. [Cases:
Homicide C=>709.]
vehicular homicide. (1952) The killing of a person as
a result of the unlawful or negligent operation of a
motor vehicle. Also termed automobile homicide.
[Cases: Automobiles C=>342.1.]
victim-precipitated homicide. 1. See suicide-by-cop
under SUICIDE. 2. A killing provoked by the victim
who conSciously intended to die at the hands of
another person. _ This term applies loosely to any
assisted suicide. Unlike most types of homicide, the
victim bears some ofthe responsibility for causing
his or her own death.
willful homicide. (1860) The act ofintentionally causing
a person's death, with or without legal justification.
homicidium (hom+sI-dee-"m), n. [Latin "felling of a
person") Homicide.
homicidium ex casu (eks kay-s[y)oo). Homicide by
accident. See ACCIDENTAL KILLING.
homicidium ex justitia (eks j"s-tish-ee-,,). Homicide in
the administration of justice, or in the carrying out
ofa legal sentence. See justifiable homicide (2) under
HOMICIDE.
homicidium ex necessitate (eks nd-ses-i-tay-tee).
Homicide from inevitable necessity, such as protect
ing one's person or property. See justifiable homicide
(I |
Homicide from inevitable necessity, such as protect
ing one's person or property. See justifiable homicide
(I) under HOMICIDE.
homicidium ex voluntate (eks vol-dn-tay-tee). Volun
tary or willful homicide. See criminal homicide under
HOMICIDE.
homicidium in rixa (hom-a-sI-dee-dm in rik-s<l). [Law
Latin] Scots law. Homicide committed in the course
ofa brawl.
"Homicidium in rixa .... Such crime amounts only to
culpable homicide, and the pUnishment being in the dis
cretion of the judge, varies according to the particular
circumstances of each case. It is not punished capitally,
because this crime lacks the previous malice essential to
the crime of murder." John Trayner, Trayner's Latin Maxims
244 (4th ed. 1894).
hominatio (hom-a-nay-shee-oh), n. [Law Latin] Hist.
HOMAGE.
homine capto in withernamium (hom-d-nee kap-toh in
with-ar-nay-mee-dm). [Law Latin "for taking a man in
withernam"] Hist. A writ for the arrest ofa person who
had taken a bondman out of the country to prevent a
replevy. See WITHERNAM.
homine replegiando (hom-a-nee ri-plee-jee-an-doh).
[Law Latin "for replevying a man") Rist. A writ to
replevy a man out of prison, or out of the custody of a
private person.
homines (hom-a-neez), n. [Latin "men"] Hist. Feudal
tenants entitled to have their causes and other matters
tried only in their lord's court. See HOMO.
homines ligii (II-jee-I). [Latin] Hist. Liege men; feudal
tenants or vassals, esp. those who held immediately
of the sovereign.
homiplagium (hom-a-play-jee-am), n. [Law Latin] Hist.
The maiming ofa person.
hommes de fief (awm da feef), n. [French "men of the
fief"] Hist. Feudal tenants; peers in the lords' courts.
Also termed hommes feodaux.
homo (hoh-moh), n. [Latin] Hist. 1. A male human. 2. A
homo sapiens; a human being of either sex. 3. A slave.
4. A vassal; a feudal tenant. 5. A retainer, dependent,
or servant. PI. homines. See HOMINES.
homo alieni juris (ay-Iee-or al-ee-ee-m joor-is). See
FILIUSFAMILIAS.
homo chartularius (kahr-cha-Iair-ee-as). A slave man
umitted by charter. homo commendatus (kom-dn-day-t<ls). A man who
commends himself into another's power for protec
tion or support.
homo ecclesiasticus (e-klee-z[hlee-as-ti-kas). A church
vassal; one bound to serve a church, esp. in an agri
cultural capacity.
homo exercitalis (eg-zi3r-sh,,-tay-lis). A man of the
army; a soldier.
homo feodalis (fyoo-day-lis). A fee man; a vassal or
tenant who holds a fee.
homo fiscalis (fis-kay-lis). A servant or vassal belong
ing to the treasury (jiscus). Also termed homo fis
calinus.
homo francus (frangk-as). 1. In England, a freeman.
2. A Frenchman.
homo ingenuus (in-jen-yoo-as). A free and lawful man;
a yeoman.
homo tiber (II-bar). 1. A free man. 2. A freeman lawfully
competent to be a juror. 3. An allodial proprietor, as
distinguished from a feudal tenant. See ALLODIAL.
homo ligius (II-jee-as). A liege man, esp. the vassal of
a king.
homo novus (noh-vas). 1. A new tenant or vassal; one
invested with a new fee. 2. A tenant pardoned after
being convicted of a crime.
homo pertinens (p;lr-ta-nenz). A feudal bondman or
vassal; one belonging to the soil.
homo regius (ree-jee-as). A king's vassal.
homo Romanus (rd-may-nas). A Roman . A term used
in Germanic law codes to describe the Roman inhab
itants ofGaul and other former Roman provinces.
homo sui juris (S [y] 00-1 joor-i8). See PATERFAMILIAS.
homo trium litterarum (trI-"m lit-a-rair-am). [Latin
"a man ofthree letters") A thief. The "three letters"
refers to f, u, and r, for the Latin word fur ("thief").
homologacion. See HOMOLOGATION.
homologare (hom-a-Ia-gair-ee), vb. [Law Latin] Civil
law. 1. To confirm or approve; to consent or assent. 2.
To confess.
homologate (ha-mol-a-gayt), vb. Civil law. To approve or
confirm officially <the court homologated the sale>.
homologation (ha-mol-a-gay-sh<ln). Civil law. 1. Con
firmation, esp. of a court granting its approval to some
action. 2. The consent inferred by law from a party's
failure, for a ten-day period, to complain of an arbi
trator's sentence, of an appointment of a syndic (or
assignee) of an insolvent, or of a settlement ofsucces
sions. 3. A judge's approval of certain acts and agree
ments to render them more readily enforceable. Also
termed (in Spanish law) homologacion (oh-moh-Ioh
gah-syohn). See judgment homologating the tableau
under JUDGMENT.
homologous artificial insemination. See artificial
insemination by husband under ARTIFICIAL INSEMI
NATION.
homosexual marriage. See same-sex marriage under
MARRIAGE (1).
Hon. abbr. HONORABLE.
honest claim. See nAIM (3).
honeste vivere ([h]J-nes-tee VI-VJ-ree). [Latin] Roman
law. To live honorably. _ Ihis was one of the three
general precepts in which Justinian expressed the
requirements of the law. Cf. ALTERliM NON LAEDEREj
S1.JDM CUIQUE TRIBUERE.
honest-services doctrine. See INTANGIBLE-RIGHTS
DOCTRINE.
honesty clause. See FULL-REPORTING CLAUSE (1).
honesty defense. See DEFENSE (1).
honor, n. (l3c) 1. In the United States, a courtesy title
given to judges and certain other public officials. 2.
(usu. pl.) In England, those dignities or privileges,
degrees of nobility, knighthood, and other titles that
flow from the Crown. 3. Hist. In England, a seigniory
of several manors held under one baron or lord para
mount.
honor, vb. (l3c) 1. To accept or pay (a negotiable instru
ment) when presented. [Cases: Banks and Banking (;::;:>
140(3); Bills and Notes ~24, 388,428.] 2. To recog
nize, salute, or praise.
Honorable. (I5c) A title of respect given to judges,
members of the U.S. Congress, ambassadors, and the
like <The Honorable Ruth Bader Ginsburg>. -Abbr.
Hon.
honorable discharge. See DISCHARGE (8).
honorable-engagement clause. Reinsurance. An arbi
tration provision in a reinsurance contract allowing
the arbitrators to view the reinsurance arrangement
reasonably -in line with the agreement's general
purposes rather than strictly according to the rules
oflaw or an unduly technical interpretation of contrac
tuallanguage. [Cases: Insurance (;:::;)3626.]
honorarium (on-J-rair-ee-Jm), n. (17c) 1. A payment of
money or anything else of value made to a person for
services rendered for which fees cannot legally be or are
not traditionally paid. 2. A voluntary reward for that
for which no remuneration could be collected by law;
a voluntary donation in consideration of services that
admit of no compensation in money. 3. Roman law. A
gratuitous payment, esp. for professional services, as
distinguished from compensation for physical labor.
PI. honoraria; honorariums. Cf. MERCES.
honorary, adj. (I6c) (Of a title or status) conferred in rec
ognition ofmerit or service, but without the attendant
rights, powers, or dutiesj nominal <honorary member>.
-An honorary title or status may be granted without
regard to whether the honoree ever held the title or
status in fact. The honorarv title conferred on a former
officer who has honorably retired from office is often
"emeritus" or "emerita." See EMERITUS.
honorary canon. See CANON (5). honorary feud. Hist. In England, a title of nobility
descending to the eldest son only. See FEUD (1)-(3).
honorary services. Hist. Special services rendered to the
king by a person holding tenure of grand serjeanty.
The services usu. consisted of carrying the royal banner
or sword, or serving at the king's coronation as a butler,
as a champion, or in some other capacity.
honorary trust. See TRUST.
honor crime. See CRIME.
honor killing. See honor crime under CRIME.
hooligan. 1. An unruly or mischievous person who
causes trouble; a street-gang member. -This term is
often associated with boisterous fans of British sporting
events. 2. See HOOLIGAN TOOL.
hooligan tool. A steel bar used by police officers and fire
fighters to break open doors or windows. -Sometimes
shortened to hooligan. Also termed halligan tool.
horae juridicae (hor-ee juu-rid-i-see), n. pI. [Latin] Hist.
Juridical hours. -The time during which judges sat
in court to attend to judicial business. Also termed
horae judicii (hor-ee joo-dish-ee-ee).
horea (or-kah), n. Spanish law. 1. A gallows. 2. A stick for
administering corporal punishment. 3. A deSignated
place for administering corporal punishment.
hordera (hor-deer-::I), n. [Law Latin] Hist. In England, a
treasurer. -Also termed hordarius (hor-dair-ee-Js).
horderium (hor-deer-ee-::Im), n. [Law Latin] Hist. In
England, a hoard, treasury, or repOSitory.
horizontal agreement. See horizontal restraint under
RESTRAINT OF TRADE.
horizontal competition. See COMPETITION.
horizontal equality. In per capita distribution of an
estate, parity of distribution among members of
the same generation. See PER CAPITA. Cf. VERTICAL
EQUALITY.
horizontal-gaze nystagmus test (nis-tag-mJs). (1985)
Criminal law. A field-sobriety test for intoxication, in
which the suspect is told to focus on an object (such
as a pencil) and to track its movement, usu. from side
to side, by moving only the eyes. -Intoxication is
indicated if the eyes jerk or twitch while tracking the
object. -Abbr. HGN test. [Cases: Automobiles ~
411.1
horizontal integration. See horizontal merger under
MERGER.
horizontal merger. See MERGER.
horizontal nonprivity. See NONPRIVITY.
horizontal price-fixing. See PRICE-FIXING.
horizontal privity. See PRIVITY.
horizontal-property act. A statute dealing with coop
eratives and condominiums.
horizontal restraint. See RESTRAINT OF TRADE.
horizontal stare decisis. See STARE DECISIS.
horizontal union. See craft union under UNION.
hornbook. (16c) 1. A book explaining the basics of a
given subject. 2. A textbook containing the rudimen
tary principles ofan area oflaw. Cf. CASEBOOK.
"Hornbook . .. The first book of children, covered with horn
to keep it unsoiled." Samuel Johnson, A Dictionary of the
English Language (1755).
hornbook law. See BLACKLETTER LAW.
hornbook method. (1895) A method oflegal instruction
characterized by a straightforward presentation oflegal
doctrine, occasionally interspersed with questions .
The hornbook method predominates in civil-law coun
tries, and in certain fields oflaw, such as procedure and
evidence. -Also termed lecture method. Cf. CASEBOOK
METHOD; SOCRATIC METHOD.
horning, n. Hist. Scots law. 'Lhe denunciation ofa person
as an outlaw. The term comes from the old ceremony
of proclaiming a person outlawed in which the king's
messenger gave three blasts on a horn. Also termed
putting to the horn.
horn tenure. 1. See CORNAGE (1).2. See CORNAGE (2).
hors (or). [French]l. Out or out of. 2. Outside or outside
of.
hors de son fee (or d" son fee), n. [French "out ofhis fee"]
Hist. A defensive plea in an action for rent or services by
which the defendant alleged that the land in question
was outside the plaintiff's fee.
horse case. See WHITEHORSE CASE.
horsehead. See PUMPING UNIT.
horseshedding, n. (1931) The instructing of a witness
favorable to one's case (esp. a client) about the proper
method of responding to questions while giving testi
mony. -Also termed woodshed |
(esp. a client) about the proper
method of responding to questions while giving testi
mony. -Also termed woodshedding. Cf. SANDPAPER
ING. horseshed, vb.
hospitalaria. See HOSTILARIA.
Hospitallers (hos-pi-t"l-arz). A military and religiOUS
order founded in the 11th century and so called because
it built a hospital at Jerusalem to care for pilgrims .
The Crown seized all its lands and goods in England
under the Grantees ofReversions Act (1540). The Hos
pitallers still functions in several countries as a human
itarian society.
hospital lien. See LIEN.
hospitator (hos-p"-tay-t,,r), n. [Law Latin] A host or
entertainer.
hospitatorcommunis (b-myoo-nis). A common inn
keeper.
hospitator magnus (mag-nas). The marshal ofa camp.
hospitia (hah-spish-ee-a), n. [Latin] Inns.
hospitia cancellariae (kan-sa-Iair-ee-I). Inns of
chancery.
hospitia communia (b-myoo-nee-a). Common inns.
hospitia curiae (kyoor-ee-I). Inns ofcourt.
hospiticide (hah-spit-,,-sld), n. (l7e) 1. The murder ofa
host by a guest. 2. A host who murders a guest. hospitium (hah-spish-ee-am), n. [Latin] An inn; a house
hold.
hostage. (l3c) 1. An innocent person held captive by
another who threatens to kill or harm that person if
one or more demands are not met. Hostage-taking
is a federal crime. 18 USCA 1203. Cf. KIDNAPPING.
2. Int'llaw. A person who is given or taken into an
enemy's custody, in time ofwar, with his or her freedom
or life to stand as security for the performance ofsome
agreement made to the enemy by the belligerent power
giving the hostage. [Cases: War and National Emer
gency C=> 11.]
hostelagium (hos-ta-Iay-jee-"m), n. [Law Latin] Hist. A
right to receive lodging and entertainment, anciently
reserved by lords in their tenants' houses.
hosteler (hos-ta-Iar). (14c) 1. A person who stays in a
youth hostel. 2. A stableman. 3. Archaic. A person who
receives and entertains guests, esp. at a monastery. 4.
Archaic. An innkeeper. See HOSTLER.
hostes (hos-teez), n. pl. [Latin] Enemies. Sing. hostis
(hos-tis).
hostes humani generis (hyoo-may-m jen-a-ris).
Enemies ofthe human race; specif., pirates.
hosticide (hos-t,,-SId), n. (1848) 1. The killing of an
enemy. 2. A person who kills an enemy.
hostilaria (hos-ta-Iair-ee-,,), n. [Latin] A place or room
in a religiOUS house used to receive guests and strang
ers. -Also termed hospitalaria (hos-p,,-t,,-ler-[ee-]
a).
hostile, adj. (16c) 1. ADVERSE. 2. Showing ill will or a
desire to harm. 3. Antagonistic; unfriendly.
hostile act. See ACT OF HOSTILITY.
hostile amendment. See AMENDMENT (3).
hostile bidder. See CORPORATE RAIDER.
hostile embargo. See EMBARGO (1).
hostile-environment sexual harassment. See SEXUAL
HARASSMENT.
hostile possession. See POSSESSION.
hostile propaganda. See PROPAGANDA.
hostile takeover. See TAKEOVER.
hostile witness. See WITNESS.
hostility. (lSc) 1. A state ofenmity between individuals
or nations. 2. An act or series ofacts displaying antago
nism. 3. (usu. pl.) Acts ofwar.
hostler ([h]os-lar). [fro hosteler] (l4c) Archaic. L A stable
man; an ostler. 2. An innkeeper . By the 16th century,
this term had lost its "innkeeper" sense, and referred
exclusively to a stableman.
hot bench. See BENCH.
hot blood. See HEAT OF PASSION.
hot cargo. (1938) Labor law. Goods produced or handled
by an employer with whom a union has a dispute.
hot-cargo agreement. (1957) Labor law. A voluntary
agreement between a union and a neutral employer by
807
which the latter agrees to exert pressure on another
employer with whom the union has a dispute, as by
ceasing or refraining from handling, using, selling,
transporting, or otherwise dealing in any of the
products of an employer that the union has labeled as
unfair. -Most agreements ofthis type were prohibited
by the Landrum-Griffin Act of 1959. See LANDRUM
GRIFFIN ACT.
hot check. See bad check under CHECK.
hotchpot (hoch-pot), n. (16c) 1. The blending ofitems of
property to secure equality ofdivision, esp. as practiced
either in cases ofdivorce or in cases in which advance
ments of an intestate's property must be made up to the
estate by a contribution or by an accounting. Also
termed hotchpotch; hotchpot rule. [Cases: Descent and
Distribution ~108; Wills ~762.J
"In some states ... a child who has received his advance
ment in real or personal estate, may elect to throw the
amount of the advancement into the common stock, and
take his share of the estate descended, or his distributive
share of the personal estate, as the case may be: and this
is said to be bringing the advancement into hotchpot, and
it is a proceeding which resembles the collatio bonorum
in the civil law." 4 James Kent, Commentaries on American
Law"419 (George Comstock ed., 11th ed. 1866).
"[TJhe distribution of the property among the children is
subject to what is called the hotchpot rule, the purpose of
which is to ensure that the shares of all the children shall
be equal. The rule is that any money or property which
the intestate has paid to, or settled on, or covenanted to
settle on a child, either by way of advancement or in view
of marriage, shall be brought into account and deducted
from the share which is payable to that child under the
intestacy." G.c. Cheshire, Modern Law of Real Property
783-84 (3d ed. 1933).
2. In a community-property state, the property that
falls within the community estate. See COLLATIO
BONORUM. 3. MAIN POT.
hot court. See CO'C'RT.
hot document. See DOC'C'MENT.
hotel divorce. See DIVORCE.
hotelkeeper. See INNKEEPER.
hotelkeeper's lien. See LIEN.
hot issue. See ISSUE (2).
hot news. Intellectual property. Extremely time-sensitive
or transient information that is usu. reliable for very
brief periods, such as stock quotations.
hot-news test. Intellectual property. A judicial test for
determining whether a misappropriation claim is pre
empted by the Sears-Compeo doctrine, consisting in
analyzing whether, in addition to the elements ofcopy
right infringement, the claim also requires proof of (1)
time-sensitive information collected at a cost to the
plaintiff, (2) unfair use of that information by a directly
competing defendant who has made no similar invest
ment, and (3) a consequent threat to the plaintiff's com
mercial existence.
hot-potato rule. The principle that a lawyer may not
unreasonably withdraw from representing a client. _
The term comes from the rule's classic formulation: house bill
"a firm may not drop a client like a 'hot potato: espe
cially if it is in order to keep happy a far more lucra
tive client." Picker Int'l, Inc. v. Varian Assocs., Inc., 670
F. Supp. 1363, 1365 (N.D. Ohio 1987). An exception
may be allowed for a conflict of interest arising from
circumstances beyond the control ofthe lawyer or the
law firm. See thrust-upon conflict under CONFLICT OF
INTEREST. [Cases: Attorney and Client (::::>20.]
hot pursuit. (ISc) 1. See FRESH PURSUIT. 2. Int'llaw. The
legitimate chase ofa foreign vessel on the high seas just
after that vessel has violated the law of the pursuing
country while within that country's jurisdiction.
hot stock. See hot issue under ISSUE (2).
hot-water ordeal. See ordeal by water (2) under ORDEAL.
hour of cause. Scots law. The time at which a trial is to
begin.
housage (howz-ij). 1. A fee for storing goods. 2. The state
ofbeing housed or the action ofhousing.
house. (bef. 12c) 1. A home, dwelling, or residence.
ancient house. Hist. In England, a house that has stood
long enough to acquire an easement of support against
the adjoining land or building.
bawdy house. See DISORDERLY HOUSE (2).
disorderly house. See DISORDERLY HOUSE.
dwelling-house. See DWELLING-HOUSE.
house ofcorrection. 1. A reformatory. 2. A place for
the confinement of juvenile offenders or those who
have committed crimes oflesser magnitude. Also
termed house ofrefuge. [Cases: Infants ~271.1
house ofdetention. See JA I L.
house ofillfame. 1. See BROTHEL. 2. See DISORDERLY
HOUSE (2).
house ofprostitution. See DISORDERLY HOUSE (2).
house ofrefuge. See house ofcorrection.
house ofworship. A building or place set apart for and
devoted to the holding of religious services or exer
cises or public worship; a church or chapel, or a place
similarly used. [Cases: ReligiOUS Societies ~15.]
public house. See PUBLIC HOUSE.
2. A branch of a legislature or a quorum of such a
branch; esp., the lower chamber of a bicameral legis
lature. 3. HOUSE OF REPRESENTATIVES. 4. HOUSE OF
DELEGATES (1).
houseage (howz-ij). A fee paid for housing goods, as by
a carrier or at a wharf.
house arrest. (1936) The confinement of a person who
has been accused or convicted of a crime to his or her
home, usu. by attaching an electronically monitored
bracelet to the person. _ Most house-arrest programs
require the offender to work and permit leaVing the
home only for reasons such as work, medical needs, or
community-service obligations. [Cases: Sentencing and
Punishment ~2047.1
house bill. See BILL (3).
housebote 808
housebote. See BOTE (1).
housebreaking. (17c) The crime of breaking into a
dwelling or other secured building, with the intent to
commit a felony inside; BURGLARY . Burglary is now
used more frequently than housebreaking. In England,
for example, housebreaking was replaced in 1968 with
statutory burglary, though the term is still used in Scots
law. In some jurisdictions, housebreaking includes
"breaking out" of a house that was entered without a
breaking. [Cases: Burglary 1.] -housebreaker,
n.
"The oldest term for this purpose [i.e., of distinguishing
between common-law burglary and its statutory enlarge
ments], still encountered at times, is 'housebreaking'; a
more recent suggestion is 'breaking and entering,' and
peace officers sometimes speak of a 'breakin,''' Rollin
M. Perkins & Ronald N. Boyce, Criminal Law 270 (3d ed.
1982).
constructive housebreaking. A breaking made out by
construction oflaw, as when a burglar gains entry by
threat or fraud. -Also termed constructive breaking
into a house. [Cases: Burglary
houseburning. The common-law misdemeanor of inten
tionally burning one's own house that is within city
limits or that is close enough to other houses that they
might be in danger of catching fire (even though no
actual damage to them may result). -Also termed
combustio domorum. Cf. ARSON. [Cases: Arson
2.]
house counsel. See in-house counsel under COUNSEL.
house-duty. Hist. English law. A tax first imposed in 1851
on inhabited houses. 14 & 15 Viet., ch. 36 (repealed
1924). This tax replaced the window tax, which levied
a duty on houses with more than six windows. See
window tax under TAX.
household, adj. Belonging to the house and family;
domestic.
household, n. (14c) I. A family living together. 2. A
group of people who dwell under the same roof. Cf.
FAMILY. 3. The contents of a house.
householder. (14c) 1. A person who keeps house with
his or her family; the head or master of a family. 2. A
person who has a household. 3. An occupier of a house.
Cf. HEAD OF HOUSEHOLD. -householdership, n.
household goods. See GOODS.
house law. Hist. A regulatory code promulgated by
the head of a royal or noble family, or of a prominent
private family, governing intrafamily relationships and
acts concerning events such as marriage, disposition
of property, and inheritance . Such a code had no
legal authority but was enforced within the family by
personal and economic sanctions.
house mark. See house trademark under TRADEMARK.
house of assignation. See DISORDERLY HOUSE (2).
House of Commons. The lower chamber of the British
and Canadian parliaments. -Abbr. H.C.
|
2).
House of Commons. The lower chamber of the British
and Canadian parliaments. -Abbr. H.C.
house of correction. See HOUSE. house of delegates. (18c) 1. (often cap.) The convention
of many learned or profeSSional associations, includ
ing the American Bar Association <the ABA House
of Delegates>. Often shortened to House. -Also
termed house ofrepresentatives. See CONVENTION (4).
[Cases: Attorney and Client ~31.12. (cap.) The lower
chamber of the state legislature in Maryland, Virginia,
and West Virginia. [Cases: States ~26.1
house ofdetention. See JAIL.
house ofill fame. 1. See BROTHEL. 2. See DISORDERLY
HOUSE (2).
house of ill repute. See DISORDERLY HOUSE.
House of Lords. (l7c) The upper chamber of the British
Parliament, of which the ll-member judicial com
mittee provides judges who serve as the final court of
appeal in most civil cases . In practice, the Lords sit as
committees, usu. offive but occaSionally ofseven. Two
committees may sit Simultaneously. -Abbr. H.L.
Also termed Lords.
"'House of Lords' is an ambiguous expression. It refers {ll
to all the peers who choose to sit as the Upper House of the
legislature (Parliament), and also (2) to a court consisting
of the highest level of the judiciary." Glanville Williams,
Learning the Law 8 (l1th ed. 1982).
house of prostitution. See DISORDERLY HOUSE (2).
house ofrefuge. See house ofcorrection under HOUSE.
House of Representatives. (I8c) 1. The lower chamber
of the U.S. Congress, composed of 435 members
apportioned among the states on the basis of popu
lation who are eJected to two-year terms. [Cases:
United States 2. The lower house ofa state leg
islature. -Abbr. H.R.; (in senses 1 & 2) H. Often
shortened to House. [Cases: States ~26.] 3. HOUSE
OF DELEGATES (1): -Often shortened (in all senses) to
House. -Abbr. H.R.
house ofworship. See HOUSE.
house trademark. See TRADEMARK.
housing code. See BUILDING CODE.
housing court. See COURT.
hovering act. Int'l law. A statute applying to a coastal
country's criminal jurisdiction over ships, and persons
! aboard those ships, when the ships are outside the
country's territory.
'The notion of hovering acts evolved long before that of
a belt of uniform width in the form of territorial waters.
Great Britain's first antismuggling legislation to operate
at a stated distance seaward was in 1719, applying to the
master of any ship 'found at anchor or hovering within two
leagues from the shore.' Later enactments extended this
limit to three, then four, then eight leagues. A statute of
1794 gave power to seize and confiscate customable goods
in vessels 'found at anchor, or hovering' inside specific
straight lines drawn between lines on the British coasts,
thus resembling the 'King's Chambers' of the Stuart era.
In 1805 the British Parliament extended the seizure limit to
100 leagues (300 miles) from the coasts of Great Britain and
Ireland in respect of vessels 'belongi ng whOlly or in part to
His Majesty's subjects, or whereof one-half of the persons
on board shall be subjects of His Majesty,' Foreign-flag
vessels could have fallen within this category. In the case
of Le Louis (l 817) 165 E.R. 1464, the British Admiralty judge
809
Lord Stowell described these statutes as being permitted
by 'the (ommon courtesy of nations for their convenience.'''
Geoffrey Marston, "Hovering Acts," in 2 Encyclopedia of
Public Intemational Law 884-85 (1995).
HOW. abbr. HOME OWNERS WARRANTY.
How say you? Archaic. (Asked of a jury) how do you
find?
howsoever, adv. (14c) In whatever way; however.
H.R. abbr. HOUSE OF REPRESENTATIVES.
H.R. 10 plan. See KEOGH PLAN.
HSR Act. See HART-SCOTT-RODINO ANTITRUST IMPROVE
MENT ACT.
HTML. abbr. HYPERTEXT MARKUP LANGUAGE.
http. abbr. HYPERTEXT TRANSFER PROTOCOL.
hub-and-spoke conspiracy. See wheel conspiracy under
CONSPIRACY.
hue usque (h~k ~s-kwee), adv. [Latin] Hist. Hitherto.
This term commonly appeared in pleadings. -Also
spelled hucusque.
HUD. abbr. DEPARTMENT OF HOUSING AND URBAN
DEVELOPMENT.
hudegeld. See HYDEGELD.
hue and cry. (lSc) Hist. 1. 1he pUblic uproar that, at
common law, a citizen was expected to initiate after dis
covering a crime. Also termed vociferatio; clamor.
"Hue and Cry is the old Common Law mode of pursuing,
'with horn and voice: persons suspected of felony, or
having inflicted a wound from which death is likely to
ensue." 1Joseph Chitty, A Practical Treatise on the Criminal
Law26 (2d ed. 1826).
"All were obliged to pursue the criminal when the hue and
cry was raised. Neglect of these duties entailed an amerce
ment of the individual, the township or the hundred. The
sheriffs and the constables were under special obligations,
as conservatores pacis, to fulfil these duties." 1 William
Holdsworth, A History ofEnglish Law 294 (7th ed. 1956).
2. The pursuit of a felon accompanying such an uproar.
3. A written proclamation for the capture of a felon.
huggery. English law. Rare. A barrister's improperly
ingratiating actions to curry favor with a solicitor for
the purpose of gaining professional employment. _
Many consider huggery a breach of Bar etiquette, but
it is not expressly forbidden.
hui (hoo-ee), n. In Hawaiian law, an association of
persons who own land together, usu. as tenants in
common. [Cases: Associations (;:::> l; Sales 10;
Tenancy in Common
huissier (wee-syay), n. [French fro huis"door"] 1. French
law. An usher ofa court; an officer (such as a marshal)
who serves process. 2. Hist. In England, a ministerial
officer attached to a court, responsible for service of
process, issuing executions, and maintaining order
during court sessions.
hulk, n. (l7c) Hist. In England, a dismantled ship used as
a prison . Living conditions in hulks were notoriously
poor, and their use as prisons ended as part of the broad
prison-reform movements of the mid-19th century. hundredor
humanitarian doctrine. See LAST-CLEAR-CHANCE
DOCTRINE.
humanitarian intervention. See INTERVENTION.
humanitarian law. Int'l law. Law dealing with such
matters as the permissible use of weapons and other
means of warfare, the treatment of prisoners of war and
civilian populations in armed conflicts, and generally
the direct impact of war on human life and liberty .
Most existing rules composing humanitarian law are
codified in the Geneva Conventions and their proto
cols.
human-leukocyte antigen test. A medical process of
analyzing the blood sample of a man in a paternity
or legitimacy case by comparing certain indicators
with the child's blood. Abbr. HLA test. See BLOOD
GROUPING TEST. Cf. GENETIC-MARKER TEST. [Cases:
Children Out-of-Wedlock (;:::>45,58.]
human rights. (ISc) The freedoms, immunities, and
benefits that, according to modern values (esp. at an
international level), all human beings should be able to
claim as a matter of right in the society in which they
live. See UNIVERSAL DECLARATION OF HUMAN RIGHTS.
[Cases: Civil Rights (;::::::> 1026.]
human trafficking. See TRAFFICKING.
hundi. See HAWALA.
hundred. (bef. 12c) 1. Formerly, a county subdivision
that had its own local court.
'The hundred was a group of adjoining townships. It may
have consisted of an area taxed at one hundred hides.
Other explanations of the term 'hundred' are that the
unit may have consisted of one hundred households, or
the area had to supply one hundred fighting men for the
national defence." L.B. Curzon, English Legal History 7 (2d
ed. 1979).
2. The populace of such a subdivision. 3. See hundred
court under COURT. 4. In the United States, a politi
cal division derived from the English county division.
Hundreds existed in colonial Delaware, Maryland,
Pennsylvania, and Virginia. Today, they exist only in
Delaware. hundredal (hun-dri-d<ll), adj.
hundredarius (h~n-dri-dair-ee-~s), n. [Law Latin] Hist.
1. HUNDREDARY. 2. HUNDREDOR (1).
hundredary (him-dri-der-ee), n. [Law Latin] Hist. The
chief or presiding officer of a hundred. Also termed
hundredarius.
hundred court. See COURT.
hundredes earldor (h;m-dridz <lrl-d~r), n. [Latinized
Old English] Hist. The presiding officer in a hundred
court. -Also termed hundredes man.
hundred moot. See hundred court under COURT.
hundredor (h<lll-dri-d~r), n. Hist. l. A freeholder of a
hundred who can sue in, or act as judge of, a hundred
court. 2. A person who has been empaneled (or is fit
to be empaneled) on a hundred-court jury, and who
dwells within the hundred where the cause of action
arose. 3. An officer who has jurisdiction of a hundred
and who holds the hundred court. 4. The bailiff of a
hundred.
hundredpenny (han-drCld-pen-ee), n. Hist. A tax or due
that in medieval times was levied in a hundred. See
HUNDRED (1), (2).
hundred rolls. Hist. Records that list the various feudal
tenancies and feudal obligations existing among English
lords and tenants. The hundred rolls were compiled in
1274-1275 by royal commissioners from inquiries put
to hundred-court juries in order to alert the Crown to
the existence offeudal relationships that infringed on
royal prerogatives (and thereby royal revenue).
hungjury. See JURY.
Huntley hearing. In New York practice, a pretrial hearing
in a criminal case to determine the admissibility of a
defendant's statement. The hearing usu. follows a defen
dant's motion to suppress an involuntary statement.
The name derives from People v. Huntley, 204 N.E.2d
179 (N.Y. 1965), in which the court held that a judge in
a criminal trial must conduct a preliminary hearing
to determine whether, beyond a reasonable doubt, a
defendant's confession was made voluntarily. [Cases:
Criminal Law C-~414.]
hurto (oor-toh), n. Spanish law. Theft; larceny; stealing.
husband. (Bc) A married man; a man who has a lawful
spouse living . Etymologically, the word signified the
house bond, the man who, according to Saxon ideas
and institutions, held around him the family, for which
he was legally responsible. [Cases: Husband and Wife
C=>l.]
common-law husband. The husband in a common-law
marriage; a man who contracts an informal marriage
with a woman and then holds himself out to the com
munity as being married to her. See common-law
marriage under MARRIAGE (1). [Cases: Marriage
13.]
husbandlike and proper. (Ofland cultivation or man
agement) according to the locale's usual practices.
husbandman. Archaic. A farmer.
husbandria (h;n-bCln-dree-Cl), n. [Law Latin] Hist. HUS
BANDRY.
husbandry. (14c) 1. Agriculture or fanning; cultivation
of the soil for food . In some states, tools and equip
ment used in farming are exempt from forced sale for
collection of a debt. [Cases: Exemptions C=>45.] 2.
Generally, care of a household; careful management
of resources.
husband-wife immunity. See IMMUNITY (2).
husband-wife privilege. See marital privilege under
PRIVILEGE (3).
huscarle (hoos-kahrl), n. [Old English] Rist. L A house
servant or domestic; a man ofthe household. 2. A king's
vassal, thane, or baron; an earl's man or vassal.
husfastne (hoos-fas[t]-Cln), n. [Old English] Hist. A
person who holds house and land; a man bound to a
frankpledge. husgablum (hoos-gab-l;)m), n. [Old English) Hist. A tax
or tribute levied upon a house; house rent.
hush money. (l8c) Slang. A bribe to suppress the dis
semination ofcertain information; a payment to secure
silence.
husting. (usu. pl.) [Old English] (bef. 12c) 1. Hist. A delib
erative assembly, esp. one called by the king or other
leader. 2. Hist. COURT OF HUSTINGS. 3. Hist. The raised
platform used by officials of the Court ofHustings. 4.
Hist. The raised platform used to nominate candidates |
The raised
platform used by officials of the Court ofHustings. 4.
Hist. The raised platform used to nominate candidates
for Parliament. This practice ended after passage of
the Ballot Act in 1872. 5. Any place where political
campaign speeches are made.
hutesium et clamor (h[y]oo-tee-z[h]ee-Clm et klam-;)r).
[Law Latin] HUE AND CRY.
hybrid action. Labor law. A lawsuit in which a union
member asserts claims against the employer for breach
of a collective bargaining agreement, and against the
union for breach of the duty of fair representation.
[Cases: Labor and Employment C:~)1219(1), 1319.J
hybrid class action. See CLASS ACTION.
hybrid mark. See composite trademark under TRADE
MARK.
hybrid security. See SECURITY.
hybrid trademark. See composite trademark under
TRADEMARK.
Hyde Amendment. A federal law that prohibits the use
of Medicaid funds for abortions except when neces
sary to save the mother's life, and that prohibits feder
ally funded family-planning programs from providing
abortion counseling . The bill was sponsored by Rep
resentative Henry Hyde of Illinois. [Cases: Abortion
and Birth Control C=>126; Health C=>480.J
hydegeld (hId-geld), n. Rist. 1. In England, a discharge
for an assault on a trespassing servant. 2. HIDEGILD.
Also spelled hudegeld.
Hydraflow test. (1996) A principle for deciding when
an inadvertent disclosure of a privileged document is
a waiver ofthe attorney-client privilege, whereby the
court considers the reasonableness ofthe precautions
taken to prevent the inadvertent disclosure, the number
ofdisclosures involved, the extent ofthe disclosure, the
promptness ofany efforts to remedy the disclosure, and
whether justice would be best served by permitting the
disclosing party to retrieve the document. Hydraflow,
Inc. v. Enidine, Inc., 145 F.R.D. 626 (W.D.N.Y. 1993).
Also termed middle-of-the-road test. Cf. lenient test;
strict test. [Cases; Privileged Communications and
Confidentiality C=> 168.]
hyperlink. (l988) Intellectual property. An element on a
Web page usu. a word, phrase, or graphic, but some
times a Single pixel that, when clicked on, takes the
user to another part ofthe same website or to a differ
ent website. A copyright violation occurs ifa person
knows or has reason to know that a link will be used for
unauthorized copying, and creates a link to encourage
or contribute to wrongful copying. -Often shortened
811 hypothetical-person defense
to link. [Cases: Copyrights and Intellectual Property
<::-::;::'67.3.] -hyperlink, vb.
hypertext markup language. The programming code
used on websites to format text and provide links
between resources. -Abbr. HTML.
hypertext transfer protocol. The set of programmed
rules that enable computers to exchange information
over the Internet . Browsers use http to contact other
computers. Abbr. http.
hypobolum (hi-pob-a-Iam), n. [Latin fro Greek] Civillaw.
A legacy given to a wife, in addition to her dowry, on
the death ofher husband. PI. hypobola.
hypothec (hI -poth-ek or hi-). (16c) Civil law. A mortgage
given to a creditor on property to secure a debt;
HYPOTHECA.
landlord's hypothec. Scots law. The lessor's right of
security for rent in articles, furniture, and equip
ment (other than tools ofthe tenant's trade) that the
tenant brought onto the leased premises. -Unlike
the English remedy of distress, the right of security
is effected only by the lessor's application to the court
for a decree of sequestration. Until 1880, a landlord
could assert the lien against a tenant's crops and stock
as well as personal property. See SEQUESTRATION FOR
RENT.
mariner's hypothec. 1. A lien that a seaman, freighter,
or repairer can assert against a ship for payment of
wages or other sums due. 2. A shipowner's lien against
the ship's cargo for the freight costs.
solicitor's hypothec. A legal agent's lien for costs in
excess of the costs recovered from an opposing
party. The lien may also apply to the retention of
some documents, such as title deeds, as security for a
client's outstanding account.
hypotheca (hI-prl-thee-krl or hip-a-), n. [Latin fro Greek]
Roman law. A mortgage ofproperty in which the debtor
was allowed to keep, but not alienate, the property.
"Yet another mode of creating a security is possible, by
which not merely the ownership of a thing but its posses
sion also remains with the debtor. This is called by the
Roman lawyers and their modern followers 'hypotheca.'
Hypothecs may arise by the direct application of a rule
of law, by judicial decision, or by agreement." Thomas
E. Holland, The Elements ofJurisprudence 235 (13th ed.
1924).
hypothecaria actio (hI-poth-rl-kair-ee-a ak-shee-oh).
[Latin] Roman law. A hypothecary action; an action
to enforce a mortgage or to obtain the surrender ofthe
thing mortgaged. Also termed actio hypothecaria.
See hypothecary action under ACTION.
hypothecarii creditores (hI-poth-a-kair-ee-I kred-a-tor
eez). [Latin] Roman law. Hypothecary creditors; those
who lent money on the security of a hypotheca.
hypothecary (hI-poth-rl-ker-ee), adj. (I7c) Of, relating
to, or involving a hypothec or hypothecation.
hypothecary action. See ACTION (4).
hypothecary debt. See DEBT. hypothecate (hI-poth-a-kayt), vb. (l7c) To pledge
(property) as security or collateral for a debt, without
delivery oftitle or possession.
hypothecation (hr-potha-kay-sh,m), n. (l7c) The
pledging of something as security without delivery of
title or possession. [Cases: Pledges C-:J 1-26; Secured
Transactions C-::> 1.] -hypothecator (hI-poth-rl-kay
tar), n.
general hypothecation. 1. A debtor's pledge to allow
all the property named in the security instrument to
serve as collateral and to be used to satisfy the out
standing debt. 2. See tacit hypothecation (I), (2).
tacit hypothecation. 1. Civil law. A type of lien or
mortgage that is created by operation of law and
without the parties' express agreement. -Also termed
tacit mortgage. 2. See maritime lien under LIEN.
hypothecation bond. See BOND (2).
hypotheque (ee-poh-tek), n. French law. Hypothecation;
the right vested in a creditor by the assignment to the
creditor ofreal estate as security for a debt, whether or
not accompanied by possession . Hypotheque may be
legale, as the charge that the state has over the lands of
its accountants, or that a married woman has over the
lands ofher husband;judiciaire, when it is the result of
a judgment ofa court ofjustice; or conventionelle, when
it is the result ofthe parties' agreement.
hypothesis (hl-poth-;J-srls). (16c) 1. A supposition based
on evidence but not proven; a proposed explanation,
supported by evidence, that serves as a starting point
for investigation. 2. A theory or supposition proposed
for the sake ofdebate.
hypothetical, adj. (16c) 1. Involving tentative theory or
supposition adopted proviSionally; assumed or postu
lated merely for the sake ofargument.
hypothetical, n. (17c) A proposition or statement that is
presumed true for the sake oflogical analysis or debate.
Hypotheticals are often used as teaching tools to
illustrate the application oflegal principles or to explore
the potential consequences of words and actions. See
HYPOTHETICAL QUESTION.
hypothetical contract. See conditional contract under
CONTRACT.
hypothetical creditor. See CREDITOR.
hypothetical lien creditor. See hypothetical creditor
under CREDITOR.
hypothetical negotiation. A judicial construct used to
calculate damages in a patent-infringement suit by
arriving at a figure that would have been reasonable
royalty acceptable to both parties. [Cases: Patents
318(4.1).]
hypothetical-person defense. (1979) An entrapment
defense in which the defendant asserts that an under
cover law-enforcement officer (or person acting at the
law-enforcement officer's direction) encouraged the
defendant to engage in the criminal conduct either by
making false representations deSigned to convince the
defendant that the conduct was not prohibited, or by
812 hypothetical pleading
using persuasive methods that created a substantial I hypothetical question. (1826) A trial device that
risk that the charged offense would be committed by a
person who was not otherwise inclined to commit it.
This defense has been adopted by a minority ofstates
and by the Model Penal Code. -Also termed objective
method. See Model Penal Code 2.13. Cf. SHERMAK
SORRELLS DOCTRINE. [Cases: Criminal Law
hypothetical pleading. See PLEADING (1). solicits an expert witness's opinion based on assump
tions treated as facts established by evidence. -Also
termed abstract question. [Cases: Criminal Law
485; Evidence C=551; Witnesses C=237.J
hypothetical tenant. Hist. A fictional person used for
assessing property taxes, which are based on what the
person would pay to lease the property.
I
IABA. abbr. INTER-AMERICAN BAR ASSOCIATION.
IAF. abbr. INTER-AMERICAN FOUNDATION.
IAIP. abbr. INFORMATION ANALYSIS AND INFRASTRUC
TURE PROTECTION DIRECTORATE.
ibi. [Latin] There and then.
ibid. (ib-id). abbr. [Latin ibidem] (17c) In the same place.
This abbreviation, used in citations (mostly outside
law), denotes that the reference is to a work cited imme
diately before, and that the cited matter appears on the
same page ofthe same book (unless a different page is
specified). Also termed lb. Cf. ID.
ICANN. abbr. INTERNET CORPORATION FOR ASSIGNED
NAMES AND :-lUMBERS.
ICC. abbr. 1. I:-ITERSTATE COMMERCE COMMISSION. 2.
INTERNATIONAL CRIMINAL COURT.
ICJ. abbr. INTER:-IATIONAL COURT OF JUSTICE.
ICPC. abbr. INTERSTATE COMPACT ON THE PLACEMENT
OF CHILDREN.
ICSID (ik-sid). abbr. INTERNATIONAL CENTRE FOR SET
TLEMENT OF INVESTMENT DISPUTES.
ICWA. abbr. INDIAN CHILD WELFARE ACT.
id. (id). abbr. [Latin idem] (17c) The same . ld. is used
in a legal citation to reter to the authority cited imme
diately before <Id. at 55>. Cf. IBID.
IDA. abbr. INVESTMENT-DIRECTION AGREEMENT.
IDEA. abbr. INDIVIDUALS WITH DISABILITIES EDUCA
TION ACT.
idea-expression dichotomy. Copyright. The fundamen
tal rule that copyright law protects only specific expres
sions ofan idea, not the idea itself. [Cases: Copyrights
and Intellectual Property C=4.5.]
idem per idem (I-dem par I-dem). [Latin) The same for
the same . This phrase refers to an illustration that
adds nothing to a matter under consideration.
idem sonans (I-dem soh-nanz), adj. [Latin] (1856) (Of
words or names) sounding the same, regardless of
spelling <the names Gene and Jean are idem sonans>.
In trademark law, the term designates a name that
sounds close enough to a registered trademark to create
confusion among consumers and infringe that mark, so
the Steinway company was able to prevent a competitor
from registering "Steinberg" for the name ofits pianos.
[Cases: Names C=16; Trademarks (~J1098.]
'The names of parties should be correctly spelled, but
misspelling which does not change the sound works no
harm; it matters not how incorrectly names are spelled, if
they are idem sonans (the same sound)." Edwin E. Bryant,
The Law of Pleading Under the Codes of Civil Procedure
186 (2d ed. 1899). idem sonans (I-dem soh-nanz), n. [Latin] (1848) A legal
doctrine preventing a variant spelling of a name in a
document from voiding the document ifthe misspell
ing is pronounced the same way as the true spelling.
[Cases: NamesC=16.]
identification interrogatory. See INTERROGATORY.
identification of goods. (1887) A process that enables
a buyer to obtain an identifiable (and therefore insur
able) interest in goods before taking possession from
the seller . The goods are identified in any manner
agreed to by the parties. UCC 2-501. [Cases: Sales
~199,208.]
identification parade. See LINEUP.
identified adoption. See private adoption under
ADOPTION.
identify, vb. (I8c) L To prove the identity |
ified adoption. See private adoption under
ADOPTION.
identify, vb. (I8c) L To prove the identity of(a person or
thing) <the witness identified the weapon>. 2. To look
upon as being associated (with) <the plaintiff was iden
tified with the environmental movement>. 3. To specify
(certain goods) as the object ofa contract <identify the
appliances to the contract>. See IDENTIFICATION OF
GOODS. [Cases: Sales C=199,208.]
identifying material. Copyright. A portion or represen
tation of an entire work deposited with the U.S. Copy
right Office . A copyright registrant is required to
deposit at least one complete copy of the work, and often
two. If a trade secret would be disclosed by a deposit
or the work's nature (e.g., a holograph) makes deposit
difficult, a substitution is acceptable. Common forms
of identifying material are drawings, photocopies, and
selected pages ofsoftware code and databases. [Cases:
Copyrights and Intellectual Property C-::: 50.10.]
identikit. A collection ofpictures offacial features, used
by police to create a composite image ofa suspect from
witnesses' descriptions . In Great Britain, the result
ing image is called a photofit.
identitate nominis (I-den-ti-tay-tee nom-a-nis). See DE
IDENTITATE NOMINIS.
identity. (16c) 1. The identical nature of two or more
things; esp., in patent law, the sameness in two devices
ofthe function performed, the way it is performed, and
the result achieved . Under the doctrine of equiva
lents, infringement may be found even if the accused
device is not identical to the claimed invention. See
DOCTRINE OF EQUIVALENTS. [Cases: Patents
234-237.] 2. Evidence. The authenticity of a person or
thing. [Cases: Criminal Law 339.5; Evidence
C=102.]
identity of interests. (18c) Civil procedure. A relation
ship between two parties who are so close that suing
one serves as notice to the other, so that the other may
be joined in the suit. Fed. R. Civ. P. 15(c)(l)(c). [Cases:
Limitation ofActions C=> 127.]
identity ofparties. (1803) Civil procedure. A relationship
between two parties who are so close that a judgment
against one prevents later action against the other
because ofres judicata. [Cases: Judgment C=>624-631,
665-678.]
identity theft. The unlawful taking and use of another
person's identifying information for fraudulent
purposes. Cf. GHOSTING. [Cases: False Pretenses
19.]
ideo (I-dee-oh), adv. [Latin] "Therefore: for that reason.
ideo consideratum est (I-dee-oh k;m-sid-d-ray-tdm est).
[Latin] Hist. Therefore it is considered . "These words
often prefaced a judgment at common law, and came
to refer to the judgment itself. Cf. CONSIDERATUM EST
PER CURIAM.
ideological aggression. 1. See hostile propaganda under
PROPAGANDA. 2. See subversive propaganda under PRO
PAGANDA.
Ides (Idz), n. [fr. Latin idus (pl.)] Roman law. In the
Roman calendar, the ninth day after the Nones, being
the 15th ofMarch, May, July, and October, and the 13th
of the other months . In the calculation of the day,
Nones is the first day counted. Cf. CALENDS; NONES.
idiochira (id-ee-oh-kI-ra). [Greek "one's own hand"]
Hist. An instrument executed privately, rather than
before a public officer; esp., a deed written in one's
own hand.
idiocy. Archaic. The condition of a person who, from
birth, has never had any glimmering of reasoning
or intellectual faculties. Also termed idiopathic
insanity.
idiot. A person afflicted with profound mental retarda
tion. This term has largely fallen out ofuse in modern
legal and medical contexts. Cf. IMBECILE.
idiota (id-ee-oh-ta). [Latin] Civil law. 1. An unlearned,
simple person. 2. A private person; one not in public
office.
idiota inquirendo (id-ee-oh-ta in-kwI-ren-doh or
in-kw<l-ren-doh). See DE IDIOTA INQUIRENDO.
id non agebatur (id non aj-d-bay-t<lr). [Law Latin] Scots
law. That was not done.
"The meaning of the words as they occur here is this: the
deceased, when he valued the subjects, did not intend to
depreciate their value for the purpose of benefiting the
executor, -this was not in his consideration at all this
was not what he did (id nan agebatur) by the valuation;
therefore, the executor is bound for the true value of the
subjects." John Trayner, Trayner's Latin Maxims 245 (4th
ed. 1894).
idoneis argumentis (l-doh-nee-is ahr-gyoo-men-tis).
[Law Latin] Hist. By suitable arguments.
idoneitas (I-doh-nee-;>-tas). [fro Latin idoneus "suitable"]
Hist. A person's ability or fitness. ~Also termed
idoneity. idoneum sefacere; idoneare se (I-doh-nee-am see fay-sa
ree; r-doh-nee-air-ee see). [Law Latin "to make oneself
sufficient; to clear oneself"] Hist. To purge oneself, by
oath, ofa crime that one is accused of committing.
idoneus (I-doh-nee-;)s), adj. [Latin] Roman law. (Of a
person or thing) appropriate or suitable . A respon
sible or solvent man, for example, was known as an
idoneus homo, while a pledge of sufficient security
was termed idonea cautio. Also spelled (in English)
idoneous.
IDP. abbr. INTERNALLY DISPLACED PERSON.
IDS. abbr. INFORMATION-DISCLOSURE STATEMENT.
i.e. abbr. [Latin id est] (17c) That is <the federal govern
ment's highest judicial body, i.e., the Supreme Court>.
Cf.E.G.
IEP. abbr. See lKDIVIDUALIZED EDGCATION PROGRAM.
IFP. abbr. IN FORMA PAUPERIS.
IFP affidavit. See poverty affidavit under AFFIDAVIT.
ignis judicium (ig-nis joo-dish-ee-<lm). [Latin] Hist. Trial
by fire. See fire ordeal under ORDEAL.
ignominy (ig-na-min-ee). Public disgrace or dishonor.
ignominious, adj.
ignoramus (ig-na-ray-mds). [Law Latin] Hist. We do not
know . This notation, when written on a bill ofindict
ment, indicated the grand jury's rejection ofthe bill. See
NOT FOUND; NO BILL. Cf. TRUE BILL.
'When the grand jury have heard the evidence, if they think
it a groundless accusation, they used formerly to endorse
on the back of the bill, 'ignoramus;' or, we know nothing
of it; intimating, that, though the facts might possibly
be true, that truth did not appear to them: but now they
assert in English, more absolutely, 'not a true bill;' and
then the party is discharged without farther answer." 4
William Blackstone, Commentaries on the Laws ofEngland
301 (1769).
ignorantia (ig-na-ran-shee-<}). [Latin] Ignorance; esp.,
ignorance of the law.
"Ignorantia . ... Divided in the civil law, into ignorantia facti
(ignorance of fact) and ignorantia juris (ignorance of law).
lord Coke accepts this division ...." 2 Alexander M. Burrill,
A Law Dictionary and Glossary 40 (2d ed. 1867).
ignorantia facti (ig-n;>-ran-shee-;> fak-tI). [Latin] Igno
rance of fact.
ignorantia jacti excusat (ig-na-ran-shee-a fak-tI ek
skyoo-sat or -zat). [Latin] Ignorance of fact is an
excuse; whatever is done under a mistaken impression
of a material fact is excused or provides grounds for
relief. This maxim refers to the principle that acts
done and contracts made under mistake or ignorance
of a material fact are voidable. [Cases: Criminal Law
C=>33.]
"'Ignorantia facti excusat,' however, is obviously too
sweeping even for a general statement of law, because it
is clear (to mention only one point for the moment) that
if a certain deed would constitute exactly the same crime
under either of two factual situations, it will be no excuse
that one was mistaken for the other." Rollin M. Perkins &
Ronald N. Boyce, Criminal Law 1044 (3d ed. 1982).
815
ignorantia juris (ig-n;)-ran-shee-;) joor-is). [Latin] 1.
Ignorance of law. -Under Roman law, this type of
ignorance was less likely than ignorantia facti to excuse
mistaken conduct, except in the case of minors and
people, such as women, under some legal disability. 2.
IG;'>IORANTIA JURIS NON EXCUSAT.
ignorantia juris non excusat (ig-n;)-ran-shee-~ joor-is
non ek-skyoo-sat or -zat). [Latin] Lack of knowledge
about a legal requirement or prohibition is never an
excuse to a criminal charge. _ In English, the idea is
commonly rendered ignorance ofthe law is no excuse.
Often shortened to ignorantia juris. Also termed
ignorantia juris neminem excusat (ignorance ofthe law
excuses no one); ignorantia legis non excusat: ignorantia
juris haud excusat. [Cases: Criminal Law C=:>32.]
"Almost the only knowledge of law possessed by many
people is that ignorance of it is no excuse (ignoYantiajuris
non excusat), This maxim was originally formulated at a
time when the list of crimes, broadly speaking, represented
current morality (mala in se), but we now have many other
crimes that are the result of administrative or social regula
tion (mala prohibita), which are equally governed by the
maxim, The rule is, then, that whereas ignorance of fact
can excuse, to the extent that it negatives mens rea or
fault, ignorance of the law generally does not." Glanville
Williams, Textbook ofCriminal Law40S (1978),
ignoratio elenchi (ig-n~-ray-shee-oh e-leng-kI or ig-n~
rab-tee-oh i-Ieng-kee). [Law Latin "ignorance of the
conclusion to be proved"] (l6c) An advocate's misun
derstanding of an opponent's position, manifested by
an argument that fails to address the opponent's point;
the overlooking of an opponent's counterargument.
This fallacy oflogic often involves an advocate's trying
to prove something that is immaterial to the point to
be decided.
ignore, vb. (lB01) 1. To refuse to notice, recognize, or
consider, 2. (Of a grand jury) to reject (an indictment)
as groundless; to no-bill (a charge).
ignoring, n. Family law. A parent's or caregiver's pattern
of depriving a child of essential intellectual or emo
tional stimulation or ofotherwise stifling a child's emo
tional growth and intellectual development, essentially
by being unavailable. Cf. ISOLATING; REJECTING.
lIED. abbr. INTENTIONAL INFLICTION OF EMOTIONAL
DISTRESS.
ill, adj. (Of a pleading) defective, bad, or null.
illation (i-lay-sh~n), (16c) l. The act or process of infer
ring, 2. An inference; that which is inferred.
il1egal, adj. Forbidden by law; unlawful <illegal
dumping> <an illegal drug>.
illegal alien. See ALIEN.
illegal bargain. See BARGAIN,
illegal consideration. See CONSIDERATION (1).
illegal contract. See CONTRACT, illicit
2. Immigration. The unauthorized entrance ofan alien
into the United States by arriving at the wrong time or
place, by evading inspection, or by fraud.
illegal interest. See USURY.
illegality, n. (l7c) l. An act that is not authorized by law.
2. The state of not being legally authorized.
"A contract made ultra vires is void; but not [strictly
speaking] on the ground of illegality. Lord Cairns .. , takes
exception to the use of the term 'illegality,' pointing out
that it is not the object of the contracting parties, but the
incapacity of one of them, that avoids the contract." William
R, Anson, Principles of the Law ofContract 190 (Arthur L
Corbin ed., 3d Am. ed, 1919).
"It must not be thought that illegality in the law of contract
is co-terminous with illegality in the criminal law, for a
contract may be illegal without involving any breach of the
criminal law at all." p.s. Atiyah, An Introduction to the Law
ofContract 257 (3d ed, 1981).
3. The state or condition ofbeing unlawfuL. The affir
mative defense of illegality must be expressly set forth
in the response to the opponent's pleading. Fed. R. Civ,
P.8(c).
illegally obtained evidence. See EVIDENCE.
illegal per se. Unlawful in and ofitself.
illegal rate. See INTEREST RATE.
illegal search. See unreasonable search under SEARCH.
illegal strike. See STRIKE.
illegal subdivision |
illegal search. See unreasonable search under SEARCH.
illegal strike. See STRIKE.
illegal subdivision. See SUBDIVISION.
illegal tax. See TAX,
illegal tax protester. See TAX PROTESTER.
illegal vote. See VOTE (1).
illegitimacy. (17c) 1. Unlawfulness. 2. The status of a
person who is born outside a lawful marriage and who
is not later legitimated by the parents. Also termed
bastardy. Cf. LEGITIMACY. [Cases: Children Out-of-
Wedlock 1.]
illegitimate, adj. (l6c) 1. (Ofa child) born out oflawful
wedlock and never having been legitimated <illegiti
mate son> . Under modern ecclesiastical law, a child
born out of wedlock may be automatically legitimated
ifthe parents later marry. A child conceived while the
mother is married but born after she is divorced or
widowed is considered legitimate. [Cases: Children
Out-of-Wedlock 1.] 2. Against the law; unlawful
<illegitimate contract for the sale of contraband>.
3. Improper <illegitimate conduct>. 4. Incorrectly
inferred <illegitimate conclusion>. 5. Ecclesiastical law.
(Ofa child) born within a marriage that is regarded as
an invalid sacrament from its inception,
illegitimate child. See CHILD,
ill fame. Evil repute; notorious bad character. Cf. FAMA
PUBUCA,
illicenciatus (il-h-sen-shee-ay-t~s). [Law LatinI Without illegal entry. (IBc) 1. Criminal law. The unlawful act i license.of going into a building with the intent to commit a
crime. _ In some jurisdictions, illegal entry is a lesser illicit (i[l]-lis-;)t), adj. (16c) Illegal or improper <illicit
included offense of burglary. [Cases: Burglary relations>.
illicit cohabitation. See COHABITATION.
illicitum collegium (i-lis-<l-t<lm b-Iee-jee-<lm). [Latin]
Roman law. An illegal association; a collegium engaging
in illegal activity . Members ofan illicitum collegium
were subject to prosecution.
Illinois land trust. See land trust under TRUST.
illiquid asset. See ASSET.
illusory (i-Ioo-s<)-ree), adj. (17c) Deceptive; based on a
false impression.
illusory appointment. See APPOINTMENT (4).
Illusory Appointment Act. An 1830 English statute
providing that no appointment of property is to be
declared invalid on grounds that it is illusory . This
statute was repealed and reissued in 1925 as part ofthe
Law ofProperty Act.
illusory contract. See CONTRACT.
illusory promise. See PROMISE.
illusory tenant. See TE::-IANT.
illusory-transfer doctrine. The rule that the law disre
gards an inter vivos gift over which the donor retains so
much control that there is no good-faith intent to relin
quish the transferred property. The illusory-transfer
doctrine is usu. applied to inter vivos trusts in which
the settlor retains an excessive control or an interest
for instance, one in which the settlor retains the income
for life, the power to revoke, and substantial managerial
powers. The leading case on this doctrine is Newman
v. Dore, 9 N.E.2d 966 (N.Y. 1937). See colorable transfer
under TRANSFER. [Cases: Trusts (;::::>34(1).]
illusory trust. See TRUST.
illustrative evidence. See demonstrative evidence under
EVIDENCE.
imaginary damages. See punitive damages under
DAMAGES.
imagining. See COMPASSING.
imbargo. Archaic. See EMBARGO (1).
imbecile (im-ba-sal or -sil). A person afflicted with severe
mental retardation. Cf. IDIOT.
imbezzle. Archaic. See EMBEZZLE.
imbracery. See EMBRACERY.
IMCO. abbr. INTERGOVERNMENTAL MARITIME CONSUL
TATIVE ORGANIZATION.
IME. abbr. 1. INDEPENDENT MEDICAL EXAMINATION. 2.
INDEPENDENT MENTAL EVALUATION.
IMF. abbr. INTERNATIONAL MONETARY FUND.
imitation. Trademarks. An item that so resembles a
trademarked item as to be likely to induce the belief
that it is genuine. See SIMILARITY. [Cases: Trademarks
(::::::'1095.J
"The law of trade marks is of recent origin, and may be
comprehended in the proposition that a dealer 'has a
property in his trade mark.' The ownership is allowed to
him. that he may have the exclusive benefit of the reputa
tion which his skill has given to articles made by him. and
that no other person may be able to sell to the public. as his. that which is not his. An imitation of his mark, with
partial differences such as the public would not observe,
does him the same harm as an entire counterfeit. If the
wholesale buyer, who is most conversant with the marks,
is not misled, but the small retailer or the consumer is, the
injury is the same in law. and differs only in degree." Clark
v. Clark. 25 Barb. 76 (N.Y. 1857).
"It is no excuse that one using the trade-marks of another
informs his dealers of the imitation. for succeeding sellers
may not make similar disclosures." James Kent, 2 Com
mentaries on American Law *372 n. 8 (George Comstock
ed., 11 th ed. 1866).
IMLS. abbr. I::-ISTITUTE OF MUSEUM AND LIBRARY
SERVICES.
immaterial, adj. (1893) (Of evidence) tending to prove
some fact that is not properly at issue; lacking any
logical connection with the consequential facts. Cf.
IRRELEVANT. [Cases: Criminal Law (;::::>338; Evidence
(;::::>143.] immateriality, n.
''The rules of substantive law and of pleading are what
determine immateriality; and if the probandum is imma
terial, of course no evidence to prove it is wanted." John
H. Wigmore, A Students' Textbook of the Law of Evidence
37 (1935).
immaterial averment. See AVERMENT.
immaterial evidence. See EVIDENCE.
immaterial fact. See FACT.
immaterial issue. See ISSUE (1).
immaterial variance. See VARIANCE (1).
immatriculation. Int'llaw. The grant of nationality to
and enrollment on the national registry ofa merchant
ship, thereby giving the ship the right to fly the regis
tering nation's flag.
immaturity. See MINORITY (1).
immediate, adj. (15c) L Occurring without delay; instant
<an immediate acceptance>. 2. Not separated by other
persons or things <her immediate neighbor>. 3. Having
a direct impact; without an intervening agency <the
immediate cause of the accident>. Cf. PROXIMATE.
[Cases: Negligence (;::::>385.] -immediacy, immedi
ateness, n.
immediate annuity. See ANNUITY.
immediate breach. See BREACH OF CONTRACT.
immediate cause. See CAUSE (1).
immediate control. (1962) Criminal procedure. 1. The
area within an arrestee's reach . A police officer may
conduct a warrantless search ofthis area to ensure the
officer's safety and to prevent the arrestee from destroy
ing evidence. [Cases: Arrest (;::::>71.1(5); Automobiles
(;::::>349.5(10).) 2. Vehicular control that is close enough
to allow the driver to instantly govern the vehicle's
movements . A driver's failure to maintain immedi
ate control over the vehicle could be evidence of neg
ligence.
immediate death. See DEATH.
immediate descent. See DESCENT.
immediate family. See FAMILY.
811
immediate intent. See INTENT (1).
immediately-apparent requirement. (1978) Criminal
procedure. The principle that a police officer must have
probable cause to believe that an item is contraband
before seizing it . This plain-view exception to the
warrant requirement was first announced in Coolidge v.
New Hampshire, 403 U.S. 443, 91 S.Ct. 2022 (1971).
"An object may not be seized from a car merely because the
police plain view of it was lawfully acquired; there must be
probable cause that the object is a fruit, instrumentality or
evidence of crime. And under the 'immediately apparent'
requirement of Coolidge v. New Hampshire, this probable
cause must be determined without examination of the
object other than is justified by the purpose underlying
police entry of the vehicle." Wayne R. LaFave & Jerold H.
Israel, Criminal Procedure 3.7, at 201 (2d ed. 1992).
immediately harmful behavior. See HARMFUL BEHA
VIOR.
immediately pending motion. See MOTION (2).
immediate notice. See NOTICE.
immediate-notice clause. Insurance. A provision in
many insurance policies obligating the insured to notify
the insurer as soon as possible after a claim arises . A
requirement in a policy for "prompt" or "immediate"
notice or that notice must be given "immediately,"
"at once," "forthwith," "as soon as practicable," or "as
soon as possible" -generally means that the notice
must be given within a reasonable time under the cir
cumstances. [Cases: Insurance ~3154.]
immediate past president. 1. See PRESIDENT. 2. See
EMERITUS.
immediate possession. See POSSESSION.
immemorial (im-a-mor-ee-al), adj. (l7c) Beyond
memory or record; very old. See TIME IMMEMORIAL.
immemorial possession. See POSSESSION.
immemorial usage. See USAGE.
immigrant. (l8c) A person who enters a country to
settle there permanently; a person who immigrates.
Cf. EMIGRANT.
alien immigrant. An immigrant who has not yet been
naturalized.
immigration, n. (17c) The act ofentering a country with
the intention of settling there permanently. Cf. EMI
GRATION. [Cases: Aliens, Immigration, and Citizenship
(,..~ 100-430.] -immigrate, vb. immigrant, n.
Immigration and Nationality Act. A comprehensive
federal law regulating immigration, naturalization, and
the exclusion of aliens. 8 USCA 1101-1537. -Also
termed Nationality Act. [Cases: Aliens, Immigration,
and Citizenship ~102.]
Immigration and Naturalization Service. A former U.S.
Department ofJustice agency that administered the
Immigration and Nationality Act and operates the U.S.
Border Patrol. -Abbr. INS. See UNITED STATES CITI
ZENSHIP AND IMMIGRATION SERVICES. [Cases: Aliens,
Immigration, and Citizenship ~140-155.] immunity
Immigration Appeals Board. See BOARD OF IMMIGRA
TION APPEALS.
imminent danger. See DANGER.
imminent hazard. See HAZARD (1).
imminently dangerous. See DANGEROUS.
imminent-peril doctrine. See EMERGENCY DOCTRINE
(1).
immiscere (i-mis-a-ree), vb. [Latin] Roman law. To mix
or mingle with; to meddle with . This term took on the
figurative sense of meddling in another's affairs (e.g.,
acting as ifone were an heir), for which a person could
be held accountable.
immobilia (im-<l-bil-ee-<l). Immovables. -Also termed
res immobiles (reez i-moh-b<l-leez).
immobilia situm sequuntur (im-a-bil-ee-<l sl-tam
sa-kwan-tar). [Latin] Immovable things follow their
site. This principle means that immovables are
governed by the law ofthe place where they are fixed.
Sometimes shortened to immobilia situm.
immobilis, adj. (i-moh-b<l-lis). [Latin] Immovable.
immobilize, vb. (1871) To make immobile; esp., to turn
(movable property) into immovable property or to turn
(circulating capital) into fixed capital.
immoral consideration. See CONSIDERATION (1).
immoral contract. See CONTRACT.
immoral subject matter. 1. Patents. Inventions that do
not have a socially beneficial use . In the past, patents
were denied for some categories of inventions, such
as gambling devices and fraudulent products, esp.
medicines. The doctrine is rarely used today. [Cases:
Patents ~46.] 2. Trademarks. SCANDALOUS SUBJECT
MATTER.
immovable, n. (usu. pl.) (16c) Property that cannot be
moved; an object so firmly attached to land that it is
regarded as part ofthe land. Also termed immovable
thing. See FIXTURE. Cf. MOVABLE. [Cases: Fixtures
1; Property (::::'4.] immovable, adj.
"Considered in its legal aspect, an immovable, that is to
say, a piece of land, includes the following elements: -1.
A determinate portion of the earth's surface. 2. The ground
beneath the surface down to the centre of the world. All the
pieces of land in England meet together in one terminable
point at the earth's centre. 3. Possibly the column of space
above the surface ad infinitum." John Salmond, Jurispru
|
's centre. 3. Possibly the column of space
above the surface ad infinitum." John Salmond, Jurispru
dence 428 (Glanville L. Williams ed., 10th ed. 1947).
immovable fixture. See FIXTURE.
immune, adj. Having immunity; exempt from a duty
or liability.
immunity. (14c) 1. Any exemption from a duty, liability,
or service of process; esp., such an exemption granted to
a public official or governmental unit. Cf. IMPUNITY.
"An immunity is a defense to tort liability which is con
ferred upon an entire group or class of persons or entities
under circumstances where considerations of public policy
are thought to require special protection for the person,
activity or entity in question at the expense of those injured
by its tortious act. Historically, tort litigation against units
of government, public officers, and charities, and between
818 immunity
spouses, parents and children, has been limited or pro
hibited on this basis." Edwardj. Kionka, Torts in a Nutshell
341 (2d ed. 1992).
absolute immunity. (17c) A complete exemption from
civil liability, usu. afforded to officials while perform
ing particularly important functions, such as a rep
resentative enacting legislation and a judge presiding
over a lawsuit. Cf. qualified immunity. [Cases: Officers
and Public Employees~;:, 114.]
congressional immunity. (1969) Either of two special
immunities given to members of Congress: (1) the
exemption from arrest while attending a session of
the body to which the member belongs, excluding an
arrest for treason, breach of the peace, or a felony,
or (2) the exemption from arrest or questioning for
any speech or debate entered into during a legislative
session. U.S. Const. art. I, 6, cl. 1. See SPEECH AND
DEBATE CLAUSE. [Cases: United States C::;) 12.]
constitutional immunity. (1852) Immunity created by
a constitution.
diplomatic immunity. (1911) 1he general exemption of
diplomatic ministers from the operation oflocallaw,
the exception being that a minister who is plotting
against the security ofthe host nation may be arrested
and sent out of the country. A minister's family
shares in diplomatic immunity to a great, though ill
defined, degree. [Cases: Ambassadors and Consuls
C=>3.]
discretionary immunity. (1965) A qualified immunity
for a public official's acts, granted when the act in
question required the exercise of judgment in carrying
out official duties (such as planning and policy-mak
ing). 28 USCA 2680(a). [Cases: Municipal Corpora
tions (:=)728.]
"Probably no one test will control the decision on discre
tionary immunity. Although the fact that the government
has omitted to act is not in itself a defense, the discretion
ary immunity is frequently emphasized in nonfeasance
cases. On the other hand, where the government's activity
is affirmative, specific, and in violation of a statute, regu
lation, or constitutional provision imposing a duty upon
government, courts are often willing to say there is no
room for discretion." Prosser and Keeton on the Law of Torts
131, at 1041-42 (W. Page Keeton ed., 5th ed. 1984).
executive immunity. (1941) 1. The absolute immunity
of the U.S. President or a state governor from civil
damages for actions that are within the scope of
official responsibilities. lCases: United States ~;)
26.] 2. The qualified immunity from civil claims
against lesser executive officials, who are liable only
iftheir conduct violates dearly established constitu
tional or statutory rights . Executive immunity gen
erally protects an official while carrying out clearly
established responsibilities about which a reasonable
person would know. Cf. executive privilege under
PRIVILEGE (3).
foreign immunity. The immunity of a foreign sover
eign, its agents, and its instrumentalities from liti
gation in U.S. courts. [Cases: International Law
10.31-10.39.] government immunity. See sovereign immunity.
intergovernmental immunity. (1935) The immunity
between the federal and state governments based on
their independent sovereignty. See I:>ITERGOVERN
MENTAL-IMMUNITY DOCTRINE.
judicial immunity. (1850) The immunity of a judge
from civil liability arising from the performance of
judicial duties. [Cases: Judges C=>36.]
legislative immunity. (1890) The immunity ofa legisla
tor from civil liability arising from the pertormance of
legislative duties. See congressional immunity. [Cases:
Municipal Corporations ~~,170.]
prosecutorial immunity. The absolute immunity of
a prosecutor from civil liability for decisions made
and actions taken in a criminal prosecution. [Cases:
District and Prosecuting Attorneys C=> 10;]
qualified immunity. (1877) Immunity from civillia
bility for a public official who is performing a dis
cretionary function, as long as the conduct does not
violate clearly established constitutional or statu
tory rights. Also termed prima facie privilege. Cf.
absolute immunity. [Cases: Civil Rights C=> 1376;
Officers and Public Employees (:=.) 114.]
sovereign immunity. (1857) 1. A government's
immunity from being sued in its own courts without
its consent. Congress has waived most ofthe federal
government's sovereign immunity. See FEDERAL
TORT CLAIMS ACT. [Cases: United States C=> 125.] 2.
A state's immunity from being sued in federal court
by the state's own citizens. Also termed government
immunity; governmental immunity.
work-product immunity. See WORK-PRODUCT RULE.
2. Torts. A doctrine proViding a complete defense to a
tort action. Unlike a privilege, immunity does not
negate the tort, and it must be raised affirmatively or it
will be waived. Cf. PRIVILEGE (2).
charitable immunity. (1935) The immunity ofa chari
table organization from tort liability. -This immunity
has been eliminated or restricted in most states.
Also termed eleemosynary defense. [Cases: Charities
C=>45(2).]
corporate immunity. A corporate officer's immunity
from personal liability for a tortious act committed
while acting in good faith and within the course of
corporate duties.
husband-wife immunity. (1951) The immunity of
one spouse from a tort action by the other spouse
for personal injury . The immunity arose from the
age-old notion that a husband and wife were one in
the eyes of the law, so that one could not injure the
other there being no "other." Most states and the
District ofColumbia have abolished interspousal tort
immunity either by judicial opinion or by statute.
Some states have abolished the rule only in specific
instances such as intentional or vehicular torts.
Also termed interspousal immunity; interspousal tort
819
immunity; marital immunity. [Cases: Husband and
Wife (::::>205(2).]
interspousal immunity. See husband-wife immunity
judgmental immunity. See ERROR-OF-JUDGMENT
RULE.
marital immunity. See husband-wife immunity.
parental immunity. (1930) 1. The principle that children
cannot sue their parents, and that parents cannot sue
their children, for tort claims. This tort immunity
did not exist at English common law; it was created
by American courts, first appearing in Hewellette v.
George, 9 So. 885 (Miss. 1891). Many courts have abol
ished the doctrine for some purposes, such as actions
by unemancipated minors against parents to recover
for injuries sustained in motor-vehicle accidents.
See, e.g., Merrick v. Sutterlin, 610 P.2d 891 (Wash.
1980) (en bane). Nor does the immunity apply when
an injury is inflicted by the parent or child through
willful, wanton, or criminal conduct. See, e.g., Nudd v.
Matsoukas, 131 N.E.2d 525 (Ill. 1956). Also termed
parent-child immunity; parental-immunity doctrine.
[Cases: Parent and Child ~'")1l.]2. The principle
that parents are not liable for damages caused by the
ordinary negligence oftheir minor child. Cf. PAREN
TAL-LIABILITY STATUTE. [Cases: Parent and Child
(;::J 13.5(2).]
3. Criminal law. Freedom from prosecution granted
by the government in exchange for the person's testi
mony. By granting immunity, the government can
compel testimony despite the Fifth Amendment
right against self-incrimination -because that testi
mony can no longer incriminate the witness. [Cases:
Criminal Law (::::>42.]
pocket immunity. (I983) Immunity that results from
the prosecutor's decision not to prosecute, instead
offrom a formal grant ofimmunity. -Also termed
informal immunity. [Cases: Criminal Law (::::>42.]
testimonial immunity. (1938) Immunity from the use
ofthe compelled testimony against the witness. Any
information derived from that testimony, however,
is generally admissible against the witness. [Cases:
Criminal Law (::::>42; Witnesses (::::>304.]
'Testimonial immunity is a logical corollary to a person's
fifth amendment right not to 'be compelied in any criminal
case to be a witness against himself.' It provides that when
a witness is compelled to testify for any reason, his testi
mony cannot be used against him in a subsequent criminal
proceeding. It also follows that the immunity is not avail
able where the witness testifies voluntarily, and that the
protection applies only in a subsequent criminal prosecu
tion in which the witness is subject to prosecution for an
offense related to his earlier testimony." 2 Paul H. Robinson,
Criminal Law Defenses 205, at 482-83 (1984).
transactional immunity. (1966) Immunity from pros
ecution for any event or transaction described in the
compelled testimony . This is the broadest form of
immunity. [Cases: Criminal Law (::::>42.]
use immunity. (1970) Immunity from the use of the
compelled testimony (or any information derived
from that testimony) in a future prosecution against imparl
the witness. After granting use immunity, the gov
ernment can still prosecute ifit shows that its evidence
comes from a legitimate independent source. -Also
termed use/derivative-use immunity; derivative-use
immunity. [Cases: Criminal Law (""::>42.]
4. Freedom of a person against having a given legal
relation altered by someone else's act or omission.
immunize, vb. (1892) To grant immunity to <the new
legislation immunized the police officers from liabil
ity>.
impacted area. A region that is affected by some event;
esp., a region in which the school population increases
due to an influx offederal employees who are working
on a federal project or activity, but the tax revenue
declines due to the U.S. government's immunity from
local taxes.
impact rule. (1865) Torts. The common-law require
ment that physical contact must have occurred to allow
damages for negligent infliction ofemotional distress .
This rule has been abandoned in most jurisdictions.
Also termed physical-impact rule. [Cases: Damages
57.16(2).]
impair, vb. (17c) To diminish the value of(property or a
property right) . This term is commonly used in refer
ence to diminishing the value ofa contractual obliga
tion to the point that the contract becomes invalid or a
party loses the benefit ofthe contract. See CONTRACTS
CLAUSE.
impaired capital. See CAPITAL.
impairing the morals ofa minor. (1931) The offense of
an adult's engaging in sex-related acts, short of inter
course, with a minor. Examples of this conduct are
fondling, taking obscene photographs, and showing
pornographic materials. -Also termed unlawful
sexual conduct with a minor; corrupting; corruption of
a minor. Cf. CONTRIBUTI"'G TO THE DELINQUENCY OF
A MI"'OR. [Cases: Infants 13.]
impairment, n. (14c) The fact or state ofbeing damaged,
weakened, or diminished <impairment of collat
eral>. -impair, vb.
severe impairment. In social-security or disability
law, a physical or mental impairment that greatly
restricts a person's ability to perform ordinary, neces
sary tasks ofdaily life. See DISABIUTY (2); MAJOR LIFE
ACTIVITY. [Cases: Social Security and Public Welfare
C=140.20.]
impalement, n. (l7c) Hist. An ancient mode of inflict
ing punishment by thrusting a sharp pole through the
body. Formerly also spelled empalement. -impale,
vb.
impanel, vb. See EMPANEL.
impaneled jury. See JURY.
imparcare (im-pahr-kair-ee), vb. [Law Latin "to enclose"]
Hist. To impound; to confine in prison. See CAReER.
imparl (im-pahrl), vb. 1. Hist. To request or obtain an
imparlance. 2. To confer with the opposing party in
820 imparlance
an effort to settle a dispute amicably; to discuss settle
ment.
imparlance (im-pahr-l~nts). Hist. 1. A continuance
granted for the purpose ofgiving the requesting party
(usu. the defendant) further time to answer the adver
sary's last pleading (esp. the plaintiff' |
(usu. the defendant) further time to answer the adver
sary's last pleading (esp. the plaintiff's writ, bill, or
count), often so that the parties will have time to settle
the dispute. -Imparlances were abolished in England
in 1853.2. A petition for such a continuance. 3. The per
mission granting such a continuance. -Formerly also
spelled emparlance. -Also termed licentia loquendi.
"After defence made, the defendant must put in his plea.
But, before he pleads, he is entitled to demand one impar'
lance, or licentia loql.lendi, and may have more granted
by consent of the plaintiff; to see if he can end the matter
amicably without farther suit, by talking with the plain
tiff ...." 3 William Blackstone, Commentaries on the Laws
ofEngland 298 (1768).
"An imparlance is the time allowed by the court to
either party, upon request, to answer the pleading of
his opponent. Imparlance, from the French 'parler' -to
speak in its most common signification, means time to
plead. Formerly the parties, in the course of oral pleadings,
were allowed time to speak or confer with one another, so
that they might endeavor to settle the matters in dispute,
and later, when the pleadings came to be in writing, the
court permitted a certain time for each to plead to or
answer the pleading of his opponent. In modern practice
the term is rarely used ...." BenjaminJ. Shipman, Handbook
of CommonLaw Pleading 234, at 405 (Henry Winthrop
Ballantine ed., 3d ed. 1923).
general imparlance. The allowance of time until the
court's next term, without reserving to the defen
dant the benefit of any exception. -With this type
ofimparlance, the requesting defendant cannot later
object to the jurisdiction of the court or plead any
matter in abatement.
general special imparlance. The allowance of time
with a saving of all exceptions, so that a defendant
might later plead not only in abatement but also to
the jurisdiction.
special imparlance. The allowance of time with a
saving only of exceptions to the writ, bill, or count,
but not to the court's jurisdiction.
impartial, adj. (16c) Unbiased; disinterested.
impartial chair. (1993) 1. ARBITRATOR. 2. MEDIATOR.
Also termed impartial chairman.
impartial expert. See EXPERT.
impartial jury. See JURY.
impartible (im-pahr-t;J-b;Jl), adj. (14c) Indivisible <an
impartible estate>.
impartible feud. See FEUD (1).
impasse (im-pas). A point in negotiations at which
agreement cannot be reached. - A neutral third party
(such as a mediator) is often called in to help resolve
an impasse.
"Not only is the employer free after impasse to implement
changes already offered to the union, but either party is
free after impasse to decline to negotiate further. Since
impasse signifies that the parties have exhausted (at least
temporarily) the avenues of bargaining, termination of bargaining at that point cannot be thought to demon
strate a cast of mind against reaching agreement." Robert
A. Gorman, Basic Text on Labor Law: Unionization and Col
lective Bargaining 447 (1976).
impeach, vb. (14c) 1. To charge with a crime or miscon
duct; esp., to formally charge (a public official) with a
violation of the public trust <President Nixon resigned
from office to avoid being impeached>. _ Impeaching
a federal official, such as the President, the Vice Presi
dent, or a judge, requires that a majority of the U.S.
House of Representatives vote to return at least one
article of impeachment to the U.S. Senate, itemizing
the charges and explaining their factual grounds. Even
if an official is impeached, removal from office does
not occur unless two-thirds of the senators who are
present vote for conviction. 2. To discredit the veracity
of (a witness) <the lawyer hoped that her star witness
wouldn't be impeached on cross-examination>. [Cases:
Witnesses (;::>311-409.]3. To challenge the accuracy or
authenticity of (a document) <the handwriting expert
impeached the holographic will>.
impeachable offense. An offense for which a public
official may legally be impeached, during the first step
in a two-step process that may, depending on the vote
in the U.S. Senate, lead to the official's removal from
office. -The U.S. Constitution states that "[tlhe Presi
dent, Vice President and all civil Officers ofthe United
States, shall be removed from Office on Impeachment
for, and Conviction of, Treason, Bribery, or other high
Crimes and Misdemeanors." The meaning of this
language was much debated during the impeachment
and trial of President Bill Clinton, against whom two
articles ofimpeachment were returned by the House of
Representatives. 1he question arose concerning what
type of misdemeanor will suffice, and whether the
high in high crimes modifies misdemeanors as well. No
definitive answer resulted from the proceedings.
impeachment. (l6c) 1. The act (by a legislature) ofcalling
for the removal from office ofa public official, accom
plished by presenting a written charge of the official's
alleged misconduct; esp., the initiation ofa proceeding
in the U.S. House of Representatives against a federal
official, such as the President or a judge. Also termed
formal impeachment. _ Congress's authority to remove
a federal official stems from Article II, Section 4 of
the Constitution, which authorizes the removal of an
official for "Treason, Bribery, or other high Crimes and
Misdemeanors." The grounds upon which an official
can be removed do not, however, have to be criminal in
nature. They usu. involve some type of abuse of power
or breach of the public trust. Articles of impeach
ment which can be approved by a simple majority in
the House serve as the charging instrument for the
later trial in the Senate. Ifthe President is impeached,
the ChiefJustice of the Supreme Court presides over the
Senate trial. The defendant can be removed from office
by the vote of a two-thirds majority ofthe senators who
are present. In the United Kingdom, impeachment is
by the House of Commons and trial by the House of
Lords. But no case has arisen there since 1801, and
821 imperitia
many British scholars consider impeachment obsolete.
[Cases: United States <:>35.] 2. The act of discredit
ing a witness, as by catching the witness in a lie or by
demonstrating that the witness has been convicted of
a criminal offense. [Cases: Witnesses C::::)31l-409.] 3.
The act of challenging the accuracy or authenticity of
evidence.
formal impeachment. 1. The discrediting ofa witness's
testimony by confronting the witness with his or her
specific untruthful acts, prior convictions, prior
inconsistent statements, or the like. 2. See IMPEACH
MENT (1).
impeachment court. See COURT FOR THE TRIALS OF
IMPEACHMENT.
impeachment evidence. See EVIDENCE.
impeachment ofverdict. (1821) A party's attack on a
verdict, alleging impropriety by a member of the jury.
[Cases: New Trial <:>44, 143; Trial <:>344.]
impeachment ofwaste. Hist. An action for waste against
the tenant of the harmed property.
"[FIor above five hundred years past, all tenants for life
or for any less estate, have been punishable or liable
to be impeached for waste, both voluntary and permis'
sive; unless their leases be made, as sometimes they are,
without impeachment of waste ... :. 2 William Blackstone,
Commentaries on the Laws ofEngland 283 (1766).
impechiare (im-pee-chee-air-ee), vb. [fro Law French
empescher "to impeach"] Hist. To impeach; to accuse.
impediens (im-pee-dee-enz). [Law Latin] Hist. A person
who hinders. _ The defendant (or deforciant) in a fine of
conveyance was sometimes so called. See FINE (1).
impediment (im-ped-;:l-m;:lnt). (14c) A hindrance or
obstruction; esp., some fact (such as legal minority)
that bars a marriage ifknown beforehand and, if dis
covered after the ceremony, renders the marriage void
or voidable.
canonical impediment. A ground for annulment recog
nized by canon law and developed by the ecclesiastical
courts of the Roman Catholic Church. -Canonical
impediments include affinity, impotence, disparity of
worship, and previous religious profession.
civil impediment. A ground for annulment recognized
by civil law ofcontracts, such as minority, unsound
ness of mind, fraud, and duress. _ The defects of
fraud and duress may be waived, and the parties may
confirm the marriage.
diriment impediment (dir-Cl-m<Jnt im-ped-;:l-m;:lnt), n.
[fro Latin dirimens impedimentum "nullifying impedi
ment"] A fact that raises an absolute bar to marriage
and renders a contracted marriage void. -Diriment
impediments include consanguinity within a prohib
ited degree and a prior undissolved marriage. Also
termed impedimenta dirimentia.
impedimenta dirimentia. See diriment impediment
under IMPEDIMENT. impedimentum rebus agendis (im-ped-;:l-men-t;:lm
ree-b;:ls <l-jen-dis). [Law Latin] Hist. A hindrance to
the transaction ofbusiness.
impeditor (im-ped-;:l-t;:lr). [Law Latin] Hist. A person
who interferes with a patron's right of advowson, i.e.,
the right to appoint a clerk to a benefice. -Also termed
disturber. See DE CLERICO ADMITTENDO.
impensae (im-pen-see), n. pl. [Latin] Roman law. Expen
ditures made on a thing.
impensae necessariae (im-pen-see nes-;:l-sair-ee-ee).
Expenditures necessary to prevent deterioration,
destruction, or loss of a thing -such as money
expended for building repair or maintenance.
impensae utiles (im-pen-see yoo-t;:l-leez). Useful
expenditures that improve something and increase
its selling value.
impensae voluptariae (im-pen-see vol-;:lp-tair-ee-ee).
Expenditures made on a thing for ornamental
purposes only.
imperative authority. See AUTHORITY (4).
imperative law. See LAW.
imperative theory of law. (1909) The theory that law
consists ofthe general commands issued by a country or
other political community to its subjects and enforced
by courts with the sanction ofphysical force. -Impera
tive theorists believe that if there are rules predating
or independent ofthe country, those rules may closely
resemble law or even substitute for it, but they are not
law. See POSITIVE LAW. C[ NATURAL LAW.
imperfect defense. See DEFENSE (1).
imperfect duty. See DUTY (1).
imperfect grant. See GRANT.
imperfect justification. See JUSTIFICATION.
imperfect obligation. See moral obligation under OBLI
GATION.
imperfect ownership. See OWNERSHIP.
imperfect right. See RIGHT.
imperfect self-defense. See SELF-DEFENSE.
imperfect statute. See STATUTE.
imperfect title. See TITLE (2).
imperfect trust. See executory trust under TRUST.
imperfect usufruct. See quasi-usufruct (1) under usu-
FRUCT.
imperfect war. See WAR.
imperial state. See STATE.
imperitia (im-p;:l-rish-ee-<l), n. [Latin] Roman law. Lack
of skill or competence; inexperience. -The Romans
considered imperitia to be a type of culpa that gave rise
to liability in tort or liability under a contract calling
for the rendering ofservices (such as a locatio conductio
operis). Imperitus could denote a person, such as a judge
who was incompetent in what he undertook.
imperium 822
imperium (im-peer-ee-dm), n. [Latin] Roman law.
Power or dominion; esp., the legal authority wielded by
superior magistrates under the Republic, and later by
the emperor under the Empire . Imperium implied the
right ofmilitary command, and the powers ofcorporal
punishment, and oflife and death over citizens. It was
symbolized by the lictors who carried the fasces and
an ax, which symbolized those powers. Imperium was
also used less technically; it applied to lesser types
of authority under Roman law, and thus had differ
ent meanings. For example, imperium domesticum
described the power of the head ofa household.
imperium merum (im-peer-ee-dm meer-dm). [Latin
"bare power" or "absolute executive power"] Roman
law. A higher magistrate's power to use force to
repress crime.
imperium mixtum (im-peer-ee-dm miks-tdm). [Latin
"mixed power"] Roman law. A magistrate's authority
to make and enforce decisions in civil and criminal
matters.
impermissible comment on the evidence. See COMMENT
ON THE EVIDENCE.
impersonal. See IN REM.
impersonation. (18c) The act of impersonating
someone. Also termed personation.
false impersonation. (1878) The crime offalsely repre
senting oneself as another person, usu. a law-enforce
ment officer, for the purpose of deceiving someone.
See 18 USCA 912-917. Also termed false person
ation. (Cases: False Personation ~~1.]
impertinent, adj. |
-917. Also termed false person
ation. (Cases: False Personation ~~1.]
impertinent, adj. See IRRELEVANT.
impertinent evidence. See EVIDENCE.
impertinent matter. (18c) Procedure. In pleading,
matter that is not relevant to the action or defense.
A federal court may strike any impertinent matter
from a pleading. Fed. R. Civ. P. 12(f). Cf. SCANDAL
ous MATTER. [Cases: Federal Civil Procedure (;:"::>1127;
Pleading 364(4).]
''The court will not strike out the matter unless its imperti
nence clearly appears; for if erroneously stricken out, the
error is irremediable; if left to stand, the court may set the
matter right in taxing the costs. Matter which is scandalous
is also impertinent." William C. Anderson. A Dictionary Of
Law 526 (1889).
impescare (im-pd-skair-ee), vb. (fr. Law French empe
scher "to impeach"] Hist. To impeach; to accuse.
impetitio vasti (im-p.Hish-ee-oh vas-tT). See IMPEACH
MENT OF WASTE.
impetrare (im-pd-trair-ee), vb. [Latin] Roman law. To
obtain by request . This word often appeared in peti
tions requesting a formula for an action from a praetor.
It performed a similar function under English law for
those seeking a writ from Chancery. The English word
impetrate derives from this Latinism. Cf. FORMULA.
impetration (im-pd-tray-shdn). 1. Hist. The act ofpeti
tioning for a writ. 2. Hist. Eccles. law. The act ofobtaining a papal benefice for bestowal by the king or other
lay patron. -impetrate, vb.
impignorata (im-pig-n<'l-ray-td). [Law Latin] Hist. Given
in pledge; pledged or mortgaged.
impignoration (im-pig-nd-ray-sh<ln), n. Hist. The act of
pawning or putting to pledge. -impignorate, vb.
impinge, vb. (17c) To encroach or infringe (on or upon)
<impinge on the defendant's rights>.
implacitare (im-plas-<'l-tair-ee), vb. [fro Latin placitum
"plea"] Hist. To implead; to sue.
implead, vb. (14c) 1. To bring (someone) into a lawsuit;
esp., to bring (a new party) into the action. Cf. INTER
PLEAD. 2. Hist. To bring an action against; to accuse.
Formerly also spelled emplead; empleet. Federal
Civil Procedure c>281-297; Parties
impleader, n. (1918) A procedure by which a third party
is brought into a lawsuit, esp. by a defendant who seeks
to shift liability to someone not sued by the plaintiff.
Fed. R. Civ. P. 14. -Also termed third-party practice;
vouching-in. Cf. INTERPLEADER; INTERVENTION (1).
[Cases: Federal Civil Procedure C=)281-297; Parties
(;:"::>49.]
implementation plan. Environmental law. A detailed
outline ofsteps needed to meet enVironmental-quality
standards by an established time.
implicate, vb. (15c) 1. To show (a person) to be involved
in (a crime, misfeasance, etc.) <when he turned state's
evidence, he implicated three other suspects>. 2. To be
involved or affected <three judges were implicated in
the bribery>.
implication. (15c) 1. The act ofshowing involvement in
something, esp. a crime or misfeasance <the implication
of the judges in the bribery scheme>. 2. An inference
drawn from something said or observed <the implica
tion was that the scheme involved several persons> .
necessary implication. (18c) An implication so strong
in its probability that anything to the contrary would
be unreasonable.
implicit cost. See opportunity cost under COST (1).
implied, adj. (16c) Not directly expressed; recognized by
law as existing inferentially <implied agreement>. See
IMPLY (1). Cf. EXPRESS.
implied abandonment. See ABANDONMENT (10).
implied acceptance. See ACCEPTANCE (4).
implied acquittal. See ACQUITTAL.
implied actual knowledge. See actual knowledge (2)
under KNOWLEDGE.
implied admission. See ADMISSION (1).
implied agency. See AGENCY (1).
implied amnesty. See AMNESTY.
implied assent. See ASSENT.
implied assertion. See assertive conduct under
CONDUCT.
implied assumption. See ASSUMPTION.
823 import
implied assumption of the risk. See ASSUMPTION OF
THE RISK.
implied authority. See AUTHORITY (1).
implied bias. See BIAS.
implied coercion. See UNDUE INFLUENCE (1).
implied color. See COLOR.
implied condition. See CONDITION (2).
implied confession. See CONFESSION.
implied consent. See CONSENT (1).
implied consideration. See CONSIDERATION (1).
implied contract. See CONTRACT.
implied contractual indemnity. See INDEMNITY.
implied covenant. See COVENANT (1).
implied covenant ofgood faith and fair dealing. See
COVENANT (1).
implied crime. See constructive crime under CRIME.
implied dedication. See DEDICATION.
implied duty ofcooperation. See DUTY (1).
implied easement. See EASEMENT.
implied indemnity. See INDEMNITY.
implied in fact, adj. Inferable from the facts ofthe case.
implied-in-fact condition. See CONDITION (2).
implied-in-fact contract. See CONTRACT.
implied in law, n. (1806) Imposed by operation oflaw
and not because of any inferences that can be drawn
from the facts of the case.
implied-in-Iaw condition. See constructive condition
under CONDITION (2).
implied-in-Iaw contract. See CONTRACT.
implied intent. See INTENT (1).
implied license. See LICENSE.
implied license by acquiescence. See LICENSE.
implied license by conduct. See LICENSE.
implied license by equitable estoppel. See LICENSE.
implied license by legal estoppel. See LICENSE.
implied-license doctrine. 1. The principle that a person's
specific conduct may be tantamount to a grant ofper
mission to do something. 2. The principle that in some
specified circumstances a statute can be construed as
supplying a necessary authority by operation oflaw.
implied malice. See MALICE.
implied negative covenant. See COVENANT (1).
implied notice. See NOTICE.
implied obligation. See obediential obligation under
OBLIGATION.
implied partnership. See partnership by estoppel under
PARTNERSHIP.
implied permission. See PERMISSION.
implied power. See POWER (3). implied promise. See PROMISE.
implied reciprocal covenant. See COVENANT (4).
implied reciprocal servitude. See implied reciprocal
covenant under COVENANT (4).
implied repeal. See REPEAL.
implied reservation. See RESERVATION.
implied-reservation-of-water doctrine. A legal doctrine
permitting the federal government to use and control,
for public purposes, water appurtenant to federal
lands. See EMINENT DOMAIN. [Cases: Waters and Water
Courses
implied term. See TERM (2).
implied trust. 1. See constructive trust under TRUST. 2.
See resulting trust under TRUST.
implied waiver. See WAIVER (1).
implied warranty. See WARRANTY (2).
implied warranty of fitness for a particular purpose.
See WARRANTY (2).
implied warranty of habitability. See WARRANTY (2).
implied warranty of merchantability. See WARRANTY
(2).
imply, vb. (I4c) 1. To express or involve indirectly;
to suggest <the opinion implies that the court has
adopted a stricter standard for upholding punitive
damages awards>. Cf. INFER. 2. (Of a court) to impute
or impose on equitable or legal grounds <the court
implied a contract between the parties>. 3. To read
into (a document) <citing grounds of fairness, the court
implied a condition that the parties had not expressed>.
See implied term under TERM (2). implication, n.
"Anglo-American judges, who continually evaluate facts,
often use the phrase by implication (= by what is implied,
though not formally expressed, by natural inference), along
with its various cognates. Judges (by implication) draw
'natural inferences' and thereby decide that something
or other was, in the circumstances, 'implied.' Through
the process of hypallage a semantic shift by which the
attributes of the true subject are transferred to another
subject the word imply has come to be used in reference
to what the judges do, as opposed to the circumstances.
This specialized use of imply runs counter to popular lay
use and is not adequately treated in English-language
dictionaries.
'The lawyer's imply has directly encroached on the word
infer. Whereas nonlawyers frequently use inferfor imply,
lawyers and judges conflate the two in the opposite direc
tion, by using imply for infer. In analyzing the facts of a
case, judges will imp/yone fact from certain others. (From
is a telling preposition.) Nonlawyers believe they must be
inferring an additional fact from those already known; if
contractual terms are implied, they must surely be implied
by the words or circumstances of the contract and not by
the judges." Bryan A. Garner, A Dictionary ofModern Legal
Usage 423, 424 (2d ed. 1995).
import, n. (16c) 1. A product brought into a country from
a foreign country where it originated <imports declined
in the third quarter>. See PARALLEL IMPORTS. 2. The
process of bringing foreign goods into a country <the
import of products affects the domestic economy in
significant ways>. Cf. EXPORT (1), (2). 3. The meaning;
esp., the implied meaning <the court must decide the
import ofthat obscure provision>. 4. Importance; sig
nificance <time will tell the relative import ofJudge
Posner's decisions in American law>.
importation. (l7c) The bringing ofgoods into a country
from another country.
import duty. See nCTY (4).
imported litigation. (1927) One or more lawsuits brought
in a state that has no interest in the dispute.
importer. (lSc) A person or entity that brings goods into
a country from a foreign country and pays customs
duties.
Import-Export Clause. (1945) U.S. Const. art. I, 10,
cl. 2, which prohibits states from taxing imports or
exports. _ The Supreme Court has liberally interpreted
this clause, allowing states to tax imports as long as the
tax does not discriminate in favor of domestic goods.
Also termed Export Clause. [Cases: Customs Duties
~1,2.]
import letter of credit. See LETTER OF CREDIT.
import quota. See QUOTA.
import recording. See BOOTLEG RECORDING (1).
importune (im-por-t[y]oon), vb. (l6c) To solicit force
fully; to request persistently, and sometimes irk
somely.
impose, vb. (l7c) To levy or exact (a tax or duty).
imposition. (l4c) An impost or tax.
impositive fact. See FACT.
impossibility. (l4c) 1. The fact or condition ofnot being
able to occur, exist, or be done. 2. A fact or circumstance
that cannot occur, exist, or be done. 3. Contracts. A fact
or circumstance that excuses performance because (1)
the subject or means of performance has deteriorated,
has been destroyed, or is no longer available, (2) the
method ofdelivery or payment has failed, (3) a law now
prevents performance, or (4) death or illness prevents
performance. _ Increased or unexpected difficulty and
expense do not usu. qualify as an impossibility and
thus do not excuse performance. Also termed impos
sibility ofperformance. [Cases: Contracts 0309.] 4.
The doctrine bv which such a fact or circumstance
excuses contra~tual performance. Cf. FRUSTRATION
(2); IMPRACTICABILITY. [Cases: Contracts ~309.] 5.
Criminal law. A fact or circumstance preventing the
commission of a crime. [Cases: Criminal Law 031,
44.]
factual impossibility. (1932) Impossibility due to the
fact that the illegal act cannot physically be accom
plished, such as trying to pick an empty pocket.
Factual impossibility is not a defense to the crime of
attempt. -Also termed physical impossibility; impos
sibility offact. [Cases: Criminal Law 44.]
legal impossibility. (1831) 1. Impossibility due to
the fact that what the defendant intended to do is
not illegal even though the defendant might have believed that he or she was committing a crime.
A legal impossibility might occur, for example, if a
person goes hunting while erroneously believing that
it is not hunting season. This type oflegal impossibil
ity is a defense to the crimes of attempt, conspiracy,
and solicitation. -Also termed impossibility oflaw;
true legal impossibility. [Cases: Criminal Law 031,
2. ImpOSSibility due to the fact that an element
required for an attempt has not been satisfied. _ This
type oflegal impossibility might occur, for example, if
a person pulls the trigger ofan unloaded gun pointed
at another when the crime of attempt requires that
the gun be loaded. This |
a person pulls the trigger ofan unloaded gun pointed
at another when the crime of attempt requires that
the gun be loaded. This is a defense to the crime of
attempt. [Cases: Criminal Law~'=>44.J
objective impossibility. Impossibility due to the nature
of the performance and not to the inability of the indi
vidual promisor. [Cases: Contracts 0309.]
subjective impossibility. Impossibility due wholly to
the inability of the individual promisor and not to
the nature of the performance. [Cases: Contracts
309.J
supervening impossibility. Impossibility arising after
the formation ofa contract but before the time when
the promisor's performance is due, and arising
because of facts that the promisor had no reason to
anticipate and did not contribute to the occurrence
of. [Cases: Contracts C== 309.]
"Contracting parties constantly take a voluntary risk, and
it would make the whole basis of contract insecure if they
were allowed to plead every and any kind of supervening
impossibility. Moreover, a man need not undertake this
kind of risk unless he chooses. He can deliberately exclude
it by stipulations in his contract, if the other party is willing
to contract with him on those terms." 2 Stephen's Commen
taries on the Laws ofEngland 82-83 (L. Crispin Warmington
ed., 21st ed. 1950).
impossibility-of-performance doctrine. (1960) The
principle that a party may be released from a contract
on the ground that uncontrollable circumstances have
rendered performance impossible. Cf. FRUSTRATION
(2); IMPRACTICABILITY. [Cases: Contracts C'" 309(1).]
impossible consideration. See CONSIDERATION (1).
impossible contract. See CONTRACT.
impost (im-pohst). (16c) A tax or duty, esp. a customs
duty <the impost was assessed when the ship reached
the mainland>. See DUTY (4).
impostor (im-pos-t~r). (l6c) One who pretends to be
someone else to deceive others, esp. to receive the
benefits of a negotiable instrument. -Also spelled
imposter. [Cases: Banks and Banking c..~147; Bills and
Notes C==201, 279.]
impostor rule. Commercial law. The principle that an
impostor's indorsement of a negotiable instrument is
not a forgery, and that the drawer or maker who issues
the instrument to the impostor is negligent and there
fore liable to the holder for payment. -If a drawer or
maker issues an instrument to an impostor, any result
ing forgery of the payee's name will be effective in favor
of a person paying on the instrument in good faith or
825
taking it for value or collection. UCC 3-404. [Cases:
Banks and Banking (;=> 147; Bills and Notes (;=>201,
279.]
impotence (im-p;H;;mts). (lSc) 1. A man's inability to
achieve an erection and therefore to have sexual inter
course . Because an impotent husband cannot con
summate a marriage, impotence has often been cited
as a ground for annulment. -Also termed impotency;
physical incapacity; erectile dysfunction. 2. Hist. Steril
ity. 3. Rare. A woman's physical inability to engage in
sexual intercourse.
impound, n. The portion of a monthly mortgage payment
that is earmarked to pay property taxes and the prop
erty-insurance premiums. See impound account under
ACCOUNT.
impound, vb. (lSc) 1. To place (something, such as a
car or other personal property) in the custody of the
police or the court, often with the understanding that
it will be returned intact at the end of the proceeding.
2. To take and retain possession of (something, such
as a forged document to be produced as evidence) in
preparation for a criminal prosecution.
impound account. See ACCOUNT.
impoundment. (17c) 1. The action of impounding; the
state of being impounded. See IMPOUND. 2. Constitu
tionallaw. The President's refusal to spend funds appro
priated by Congress . Although not authorized by the
Constitution and seldom used, impoundment effec
tively gives the executive branch a line-item veto over
legislative spending. [Cases: United States <8::)82(1).]
impracticability (im-prak-ti-b-bil-<l-tee). (17c) Con
tracts. 1. A fact or circumstance that excuses a party
from performing an act, esp. a contractual duty,
because (though possible) it would cause extreme and
unreasonable difficulty . For performance to be truly
impracticable, the duty must become much more dif
ficult or much more expensive to perform, and this
difficulty or expense must have been unanticipated.
[Cases: Contracts (;=>309(1).] 2. The doctrine by which
such a fact or circumstance excuses performance. Cf.
FRUSTRATION (2); IMPOSSIBILITY (4).
commercial impracticability. (1913) The occurrence of
a contingency whose nonoccurrence was an assump
tion in the contract, as a result of which one party
cannot perform. -Also termed (in the UCC) excuse
byfailure ofpresupposed conditions. [Cases: Contracts
(;=>309(1).]
"The doctrines of Impossibility, Commerciallmpracticabil
ity or as the Uniform Commercial Code knows it, Excuse
by Failure of Presupposed Conditions, comprise unclimbed
peaks of contract doctrine. Clearly, all of the famous early
and mid-twentieth century mountaineers, Corbin, Williston,
Farnsworth and many lesser men have made attempts on
this topic but none has succeeded in conquering the very
summit.... In spite ofattempts by all of the contract buffs
and even in the face of eloquent and persuasive general
statements, it remains impossible to predict with accuracy
how the law will apply to a variety of relatively common
cases. Both the cases and the Code commentary are full of
weasel words such as 'severe' shortage, 'marked' increase,
'basic' assumptions, and 'force majeure.'" James J. White improbation
& Robert S. Summers, Uniform Commercial Code 3-9. at
155 (3d ed. 1988).
imprescriptible (im-pm-skrip-t;}-b;:,l), adj. (16c) Not
subject to prescription; not capable of being acquired
by prescription.
imprescriptible right. See RIGHT.
impressment (im-pres-m<lnt), n. (18c) 1. The act of
forcibly taking (something) for public service. 2. A
court's imposition of a constructive trust on equitable
grounds. See constructive trust under TRUST. 3. Archaic.
The method by which armed forces were formerly
expanded, when so-called press-gangs seized men off
the streets and forced them to join the army or navy.
Cf. CRIMPING. impress, vb.
imprest fund. See FUND (1).
imprest money (im-prest). A payment made to a soldier
or sailor upon enlistment or impressment.
imprimatur (im-pri-may-t<lr or -mah-t<lr). [Latin "let
it be printed"] (l7c) 1. A license required to publish a
book. Once reqUired in England, the imprimatur is
now encountered only rarely in countries that censor
the press. 2. A general grant of approval; commenda
tory license or sanction.
imprimis (im-prI-mis), adv. [fro Latin in prim is "in
the first"] (ISc) In the first place. -Also termed in
primis.
imprison, vb. (14c) To confine (a person) in prison.
imprisonment, n. (14c) 1. The act ofconfining a person,
esp. in a prison <the imprisonment of Jackson was
entirely justified>. 2. The state of being confined; a
period of confinement <Jackson's imprisonment lasted
14 years>. See FALSE IMPRISONMENT.
"Imprisonment, by whatever name it is called, is a harsh
thing, and the discipline that must be exerCised over
human beings in close confinement can never be wholly
agreeable to those subject to it. When an attempt is made
to hide the harsh realities ofcriminal justice behind euphe
mistic descriptions, a corrupting irony may be introduced
into ordinary speech that is fully as frightening as Orwell's
'Newspeak.''' Lon L. Fuller, Anatomy ofthe Law 57 (1968).
imprisonment for debt. Hist. Detention of a debtor by
court order to force the debtor to pay certain civil obli
gations . The remedy was usu. available only when
the debt arose from nonpayment of taxes or fines
owed to the Crown, or from the debtor's failure to pay
court-ordered support or alimony, or from the debtor's
failure to obey a decree ad factum praestandum. -Also
termed civil imprisonment. See decree ad factum prae
standum under DECREE.
improbation. Scots law. An action to prove that a
document is forged or otherwise false. -Also termed
proper improbation.
reduction improbation. Scots law. An action in which a
person who may be hurt or affected by a document can
demand the document's production in court. The
person bringing the action may ask the court either
to determine the document's effects or to nullify the
826 improper
document. Ifthe document is not produced, the court
can automatically declare it false or forged.
improper, adj. (ISc) 1. Incorrect; unsuitable or irregular.
2. f;raudulent or otherwise wrongful.
improper cumulation ofactions. Hist. Under the com
mon-law pleading system, the joining of inconsistent
causes ofaction in one proceeding . This is permitted
under most modern pleading systems.
improperfeud. See FEUD (1).
improper influence. See UNDUE INFLUENCE (2).
improper means ofdiscovery. Trade secrets. A wrongful
way of figuring out a competitor's trade secret, as by
misrepresentation, eavesdropping, or stealing. [Cases:
Antitrust and Trade Regulation C:::=-414.J
improper motion. See MOTION (2).
impropriate rector. See RECTOR (1).
impropriation (im-proh-pree-ay-sh;m). Eccles. law.
The grant of an ecclesiastical benefice to the use of a
lay person, whether individual or corporate. See LAY
IMPROPRIATOR. Cf. APPROPRIATION (5).
"A church might also be appropriated to a layman, and the
proper word to denote this was impropriation as distinct
from appropriation, which was confined to the case of an
allocation to a spiritual body." G,c. Cheshire, Modern Law
ofRea! Property 333 (3d ed. 1933),
improve, vb. (16c) 1. To increase the value or enhance
the appearance of something. 2. To develop (land),
whether or not the development results in an increase
or a decrease in value. -improver, n.
improved land. See LAND.
improved value. (1834) Real estate. In the appraisal of
property, the value of the land plus the value of any
improvements.
improvement. (16c) An addition to real property,
whether permanent or not; esp., one that increases
its value or utility or that enhances its appearance.
Also termed land improvement. Cf. FIXTURE. [Cases:
Improvements C:::=-l.J
beneficial improvement. See valuable improvement.
general improvement. (17c) An improvement whose
primary purpose or effect is to benefit the public gen
erally, though it may incidentally benefit property
owners in its vicinity.
local improvement. (1831) A real-property improve
ment, such as a sewer or sidewalk, financed by special
assessment, and specially benefiting adjacent property.
[Cases: Municipal Corporations (;.':;)265.]
necessary improvement. (17c) An improvement made
to prevent the deterioration ofproperty.
public improvement. An improvement made to
property owned by the state or any other political
entity, such as a municipality. [Cases: Municipal Cor
porations C:::=-26S; States C:::=-83.]
valuable improvement. (I8c) An improvement that
adds permanent value to the freehold . Because ofits
nature, a valuable improvement would not typically be made by anyone other than the owner. A valuable
improvement may be slight and of small value, as
long as it is both permanent and beneficial to the
property. Also termed beneficial improvement.
voluntary improvement. An improvement whose only
purpose is ornamental. [Cases: Improvements C:::=-l.
improvement bond. See revenue bond under BOND (3).
improvement claim. See Jepson claim under PATENT
CLAIM.
improvement invention. See INVENTION.
improvement patent. See PATENT (3).
improvidence (im-prahv-a-d.mts). (1Sc) A lack of fore
sight and care in the management of property, esp. as
grounds for removing an estate administrator.
improvident (im-prahv-a-d;:mt), adj. (16c) 1. Lacking
foreSight and care in the management ofproperty. 2. Of
or relating to a judgment arrived at by using misleading
information or a mistaken assumption.
impruiare (im-proo-ee-air-ee), vb. [Law Latin] Hist. To
improve land.
impubes (im-pyoo-beez), n. [Latin] Roman law. A child
under the age of puberty . Under Roman law, this term
referred to a male under 14 and a female under 12. PI.
impuberes (im-pyoo-ba-reez). Cf. INFANS.
impugn (im-pyoon), vb. (14c) To challenge or call into
question (a person's character, the truth of |
n (im-pyoon), vb. (14c) To challenge or call into
question (a person's character, the truth ofa statement,
etc.). -impugnment, n.
impulse, 11. (17c) A sudden urge or inclination that
prompts an unplanned action.
uncontrollable impulse. (1844) An impulse so over
whelming that it cannot be resisted . In some juris
dictions, an uncontrollable impulse serves as a defense
to criminal conduct committed while in the grip of
the impulse. See IRRESISTIBLE-IMPULSE TEST. [Cases:
Criminal Law C::::> 50.]
impunity (im-pyoo-na-tee). (16c) Exemption from pun
ishment; immunity from the detrimental effects of one's
actions <because she was a foreign diplomat, she was
able to park illegally with impunity>. Cf. IMMUNITY
(1).
imputation, n. (16c) The act or an instance of imputing
something, esp. fault or crime, to a person; an accusa
tion or charge <an imputation of negligence>.
imputation ofpayment. Civil law. The act ofapplying or
directing a payment to principal or interest on a debt,
or to a particular debt when there are two or more. La.
Civ. Code arts. 1864, 1866.
impute (im-pyoot), vb. (14c) To ascribe or attribute; to
regard (usu. something undesirable) as being done,
caused, or possessed by <the court imputed malice
to the defamatory statement>. imputation, n.
imputable, adj.
"The word 'impute' comes from im (in) and putare (reckon),
It means to bring into the reckoning, to attribute or to
ascribe, It is sometimes used to attribute vicariously, -to
ascribe as derived from another. This is included properly
827 in arrears
within the general import of the term but it is not its
primary meaning. It may be used in many senses. Thus
we may impute (ascribe) intent, knowledge, guilt, and so
forth. Here it is used in the basic sense of imputing (ascrib
ing) the fact itself. Harm has been done. Did the defendant
do it? Usually such an inquiry is purely factual. What really
happened? At times, however, when all the facts are known
we have to ask: Will the law impute (attribute or ascribe)
what happened to the defendant? That is what is meant
here by 'imputability.'" Rollin M. Perkins &Ronald N. Boyce,
Criminal Law 605 (3d ed. 1982).
imputed disqualification. See vicarious disqualification
under DISQUALIFICATION.
imputed income. See INCOME.
imputed interest. See INTEREST (3).
imputed knowledge. See KNOWLEDGE.
imputed negligence. See NEGLIGENCE.
imputed notice. See NOTICE.
in, prep. Under or based on the law of<to bring an action
in contract>.
in absentia (in ab-sen-shee-<l or ab-sen-sh<l). [Latin]
(1886) In the absence of (someone); in (someone's)
absence <tried in absentia>.
inaccuracy rejection. See REJECTION.
in acquirenda possessione (in ak-w<l-ren-d<l p<l-zes[h]
ee-oh-nee). [Latin] Hist. In the course ofacquiring pos
session.
in action. (ISc) (Of property) attainable or recoverable
through litigation. See chose in action under CHOSE.
inactive case. See CASE.
inactive stock. See STOCK.
inadequate assistance of counsel. See ineffective assis
tance ofcounsel under ASSISTANCE OF COUNSEL.
inadequate consideration. See CONSIDERATION (1).
inadequate damages. See DAMAGES.
inadequate remedy at law. (lS17) A remedy (such as
money damages) that does not suffidently correct
the wrong, as a result ofwhich an injunction may be
available to the disadvantaged party. See IRREPARABLE
INJURY RULE. [Cases: Injunction (;::::> 15, 13S.9.]
inadmissible, adj. (18c) 1. (Ofa thing) not allowable or
worthy ofbeing admitted. 2. (Of evidence) excludable
by some rule ofevidence. [Cases: Federal Civil Proce
dure (;::::>2011: Trial C::'43.] 3. (Ofan alien) ineligible
for admission into a country or (if the alien has already
entered illegally) subject to removal.
inadmissible alien. See ALIEN.
in adversum (in ad-v3r-s<lm). [Law Latin] Against an
adverse party.
"Where a decree is obtained against one who resists, it is
termed 'a decree not by consent but in adversum,'" 1 John
Bouvier, Bouvier's Law Dictionary 1518 (8th ed. 1914).
inadvertence, n. (ISc) An accidental oversight: a result
ofcarelessness.
inadvertent discovery. (1971) Criminal procedure.
A law-enforcement officer's unexpected finding of incriminating evidence in plain view. Even though
this type of evidence is obtained without a warrant, it
can be used against the accused under the plain-View
exception to the warrant requirement. [Cases: Searches
and Seizures (;::::>48.]
inadvertent negligence. See NEGLIGENCE.
inaedificatio (in-ee-di-fi-kay-shee-oh), n. [Latin] Roman
law. The act ofbuilding on another's land with one's
own materials, or on one's own land with another's
materials . 1his was a form ofaccessio. Regardless of
the source of the materials, the building became the
landowner's property. See ACCESSIO.
in aemulationem (in ee-mY<l-lay-shee-oh-nJm). [Latin]
Hist. With a desire to injure; with an intent to annoy.
in aemulationem vicini (in ee-mY<l-lay-shee-oh
n<lm vI-sl-nr). [Latin] Hist. To the annoyance of a
neighbor.
in aequali jure (in ee-kway-h joor-ee). [Law Latin] In
equal right.
in aequali manu (in ee-kway-lr man-yoo). [Law Latin]
In equal hand. This phrase refers to property held
indifferently between two parties, as when the parties
to an instrument deposit it in the hands of a neutral
third person. -Also termed in aequa manu.
in aequo (in ee-kwoh). [Law Latin] Hist. In equity. Cf.
EX AEQUO ET BONO.
inalienable, adj. (l7c) Not transferable or assignable
<inalienable property interests>. -Also termed
unalienable.
inalienable interest. See INTEREST (2).
inalienable right. See RIGHT.
in alieno solo (in ay-lee-or al-ee-ee-noh soh-loh). [fro
Law French en auter soile] In another's land.
in alio loco (in al-ee-oh loh-koh). [Latin] In another's
place. See CEPIT IN ALiO LOCO.
in ambiguo (in am-big-yoo-oh). [Law Latin] In doubt.
in apicibus juris (in <l-pis-<l-b<ls joor-is). [Latin] Among
the extremes (or most subtle doctrines) ofthe law.
inarbitrable, adj. (lSc) 1. (Of a dispute) not capable of
being arbitrated; not subject to arbitration. [Cases:
Alternative Dispute Resolution C::O118.] 2. Not subject
to being decided.
in arbitrio alieno (in ahr-bi-tree-oh ay-Iee-ee-noh or
al-ee-). [Law Latin] According to the judgment of
another . This term refers to property bequeathed to
a trustee for the benefit of others, to be used in the
trustee's discretion.
in arbitrium judicis (in ahr-bi-tree-<lm joo-di-sis).
[Latin] At the decision or discretion ofthe judge.
in arcta et salva custodia (in ahrk-t<l et sal-v<l b-stoh
dee-<l). [Latin] In dose and safe custody.
in arrears (in <l-reerz), adj. & adv. (17c) 1. Behind in the
discharging of a debt or other obligation <the tenants
were in arrears with the rent>. 2. At the end of a term
or period instead ofthe beginning <the interests, fees,
and costs are payable in arrears>.
in articulo mortis (in ahr-tik-ya-Ioh mor-tis). [Law
Latin] At the point ofdeath. Cf. IN EXTREMIS.
inaudita altera parte (in-aw-di-ta or in-aw-dJ-ta al-ta-ra
pahr-tee). [Latin "without hearing the other party"] Ex
parte. Ihe term is sometimes used in decisions of the
European Court ofJustice. See EX PARTE.
inauguration (i-naw-gya-ray-sh;m), n. (16c) 1. A formal
ceremony inducting someone into office. 2. A formal
ceremony introducing something into public use. 3. The
formal commencement ofa period oftime or course of
action. inaugurate (i-naw-gya-rayt), vb. inau
guratory (i-naw-gya-ra-tor-ee), adj. inaugurator
(i-naw-gya-ray-tJr), n.
in autre droit (in oh-tra droyt). [Law French] See EN
AUTRE DROIT.
in bane. See EN BANC.
in banco. See EN BANC.
in bank. See EN BANC.
in being. (17c) Existing in life dife in being plus 21
years>. In property law, this term includes children
conceived but not yet born. -Also termed in esse. See
LIFE IN BEL'-IG.
"The intentional killing of one not 'in being,' i.e. an unborn
child, was until 1929 punishable neither as murder nor as
infanticide. There can be no murder nor manslaughter of
a child which dies before being born or even whilst being
born, only of one that has been born and, moreover, been
born alive," j.W. Cecil Turner, Kenny's Outlines of Criminal
Law 104 (16th ed, 1952),
in blank. (1836) (Of an indorsement) not restricted to
a particular indorsee. See blank indorsement under
INDORSEMENT.
inboard, adj. Maritime law. (Of cargo) stowed between
the boards (Le., sides) of the vessel; esp., stowed inside
or near the vessel's centerline.
in bonis defuncti (in boh-nis di-fangk-tI). [Latin] Hist.
Among the property ofthe deceased.
in bonis esse (in boh-nis es-ee or es-ay). [Latin "to be
among the goods"] Roman law. 1. To be someone's
property. 2. (Of property) held in possession without
benefit ofa solemn act (such as mancipatio) required to
transfer ownership, until ownership might be acquired
by the passage of time. See bonitary ownership under
OWNERSHIP.
in bonis habere (in boh-nis hJ-beer-ee). See bonitary
ownership under OWNERSHIP.
Inc. abbr. Incorporated.
in cahoots. See CAHOOTS.
in camera (in kam-a-ra), adv. & adj. [Law Latin "in a
chamber"] (1872) 1. In the judge's private chambers. 2.
In the courtroom with all spectators excluded. 3. (Ofa
judicial action) taken when court is not in session.
Also termed (in reference to the opinion ofone judge)
in chambers. in camera inspection. (1953) A trial judge's private con
sideration ofevidence. [Cases: Pretrial Procedure
411; Privileged Communications and Confidentiality
(;::::>31.]
in camera proceeding. See PROCEEDING.
in camera sitting. See SITTING.
in campo (in kam-poh). [Latin] Hist. In the field; before
the court.
incapacitated person. (1834) A person who is impaired
by an intoxicant, by mental illness or deficiency, or by
physical illness or disability to the extent that personal
decision-making is impossible.
incapacitation, n. (18c) 1. The action of disabling or
depriving oflegal capacity. 2. The state ofbeing disabled
or lacking legal capacity. incapacitate, vb.
incapacity. (17c) 1. Lack of physical or mental capabili
ties. 2. Lack ofability to have certain legal consequences
attach to one's actions . For example, a five-year-old
has an incapacity to make a binding contract. 3. DIS
ABILITY (2).4. DISABILITY (3). Cf. INCOMPETENCY.
testimonial incapacity. (1867) The lack of capacity to
testify. [Cases: Witnesses (;:::;'35.]
incapax doli (in-kay-paks doh-h). See CAPAX DOLI.
in capita. Individually. See PER CAPITA.
in capite (in kap-a-tee). [Law Latin "in chief"] Hist. A
type of tenure in which a person held land directly of
the Crown. -Also termed tenure in capite.
incarceration, n. (16c) The act or process of confin
ing someone; IMPRISONMENT. Cf. DISIMPRISONMENT;
DECARCERATION. -incarcerate, vb. incarcerator,
|
. DISIMPRISONMENT;
DECARCERATION. -incarcerate, vb. incarcerator,
n.
shock incarceration. (1985) Incarceration in a mili
tary-type setting, usu. for three to six months, during
which the offender is subjected to strict discipline,
phYSical exercise, and hard labor. See 18 USCA
4046. After successfully completing the program,
the offender is usu. placed on probation. See BOOT
CAMP. Cf. shock probation under PROBATION.
in casu consimili. See CASU CONSIMILI.
in casu proviso (in kay-s[y]oo prJ-vI-zoh). See CASU
PROVISO.
in causa (in kaw-za). [Latin] Hist. In the cause <the
record in causa Abercromby v. Graham is dosed>.
incendiarius (in-sen-dee-air-ee-as), n. Roman law. A
fire-starter; arsonist.
incendiary (in-sen-dee-er-ee), n. (15c) 1. One who delib
erately and unlawfully sets fire to property. Also
termed arsonist;firebug. 2. An instrument (such as a
bomb) or chemical agent deSigned to start a fire.
incendiary, adj.
incendium (in-sen-dee-am), n. [Latin] 1. Roman law.
Fire. 2. Hist. Arson.
incentive pay plan. (1948) A compensation plan in which
increased productivity is rewarded with higher pay.
829
incentive stock option. See STOCK OPTION (2).
incentive theory. Intellectual property. The proposition
that society grants creators exclusive rights to their
intellectual property in order to stimulate further cre
ativity. -The Patent and Copyright Clause ofthe U.S.
Constitution declares that the purpose ofexclusive
right protection is "to Promote the Progress ofScience
and useful Arts." U.S. Const. art. 1, 8, cl. 8.
incentive-to-commerciaJize theory. Patents. The
economic theory justifying the grant of patent rights
based on how efficient the patent system is at bringing
together diverse resources such as commercial backing,
manufacturing capacity, marketing know-how, and
other skills that the inventor alone would be unable
to handle. Also termed incentive-to-invest theory;
incentive-to-innovate theory; prospect theory. Cf. INCEN
TlVE-TO-DESIGN-AROUND THEORY; INCENTIVE-TO-DIS
CLOSE THEORY; INCENTIVE-TO-INVENT THEORY.
incentive-to-design-around theory. Patents. The
economic theory justifying the grant of patent rights
based on their tendency to encourage others to design
substitutes and improvements that are better or
cheaper. Cf. INCENTlVE-TO-COMMERCIALIZE THEORY;
INCENTIVE-TO-DISCLOSE THEORY; INCENTIVE-TO
INVENT THEORY.
incentive-to-disclose theory. Patents. The economic
theory justifying the grant of patent rights based on
the social benefit ofhaVing the information enter the
public domain. _ Without the incentive, the argument
goes, the technical advancements would remain trade
secrets and the duplication ofresearch efforts would be
a waste to society. Cf. INCENTIVE-TO- COMMERCIAL
IZE THEORY; INCENTIVE-TO-DESIGN-AROUND THEORY;
INCENTIVE-TO-INVENT THEORY.
incentive-to-innovate theory. See INCENTIVE-TO-COM
MERCIALlZE THEORY.
incentive-to-invent theory. Patents. The economic
theory justifying the grant of patent rights based on
their tendency to encourage new inventions that henefit
society and that may not otherwise be developed. Cf.
INCENTIVE-TO-COMMERCIALlZE THEORY; INCENTIVE
TO-DESIGN-AROUND THEORY; INCENTIVE-TO-DISCLOSE
THEORY.
incentive-to-invest theory. See INCENTIVE-TO-COMMER
CIALIZE THEORY.
incentive zoning. See ZONING.
incerta persona (in-s,n-td p<:>r-soh-n<:. [Latin "uncer
tain person"] Roman law. A person (or corporate body)
that could not inherit property, such as a person whose
existence was uncertain or whom the testator could not
identify by name (such as the first person to appear at
the testator's funeral). PI. incertae personae.
"Another change under Justinian was of much greater
importance. Gifts of all kinds could now be made to
incertae personae . ..." W.W. Buckland, A TextBook of
Roman Law from Augustus to Justinian 363 (Peter Stein
ed., 3d ed. 1963). Inchmaree clause
incerto patre (in-s;}r-toh pay-tree). [Latin] Hist. From an
uncertain father . The phrase appeared in reference to
illegitimate children.
incest, n. (l3c) 1. Sexual relations between family
members or close relatives, including children related
by adoption . Incest was not a crime under English
common law but was punished as an ecclesiastical
offense. Modern statutes make it a felony. [Cases: Incest
"Although incest under both English and American law is
a distinct crime, its commission may involve any of eight
different offenses: illegal marriage, consensual cohabi
tation by unmarried persons, fornication (consensual
intercourse), forcible rape, statutory rape, child abuse,
and juvenile delinquency (sexual relations between minor
siblings or cousins).... The choice of crime charged is
generally one of prosecutorial discretion. Unless one of the
participants is a minor and the other an adult, both parties
may be prosecuted for incest." Lois G. Forer, "Incest," in 3
Encyclopedia of Crime and Justice 880, 880 (Sanford H.
Kadish ed., 1983).
2. Intermarriage between persons related in any degree
of consanguinity or affinity within which marriage is
prohibited -for example, through the unde-niece
or aunt-nephew relationship. [Cases: Incest
Marriage (;J10.] -incestuous, adj.
incestuosi (in-ses-choo-oh-sr). [Law Latin] Hist. Children
begotten incestuously. Cf. ADULTERINL
incestuous adultery. See ADULTERY.
in chambers. See IN CAMERA.
inchartare (in-kahr-tair-ee), vb. [Law Latin "to put in
charter"] Hist. To grant by written instrument.
in chief. (17c) 1. Principal, as opposed to collateral or
incidental. 2. Denoting the part of a trial in which
the main body of evidence is presented. See CASE-IN
CHIEF.
Inchmaree clause (inch-md-ree). Maritime law. An
insurance-policy provision that protects against risks
not caused by nature, such as a sailor's negligence or a
latent defect in machinery . This term is taken from a
British ship, the Inchmaree, whose sinking in 1884 gave
rise to litigation that led to the clause bearing its name.
See Thames & Mersey Marine Ins. Co. v. Hamilton,
Fraser & Co., [1887] LR. 12 App. Cas. 484. -Also
termed additional-perils clause. [Cases: Insurance
2228,2231.]
"The most celebrated deCision of recent times under the
'general' clause was doubtless Thames & Mersey Marine
Ins. Co. v. Hamilton, Fraser & Co., 12 App.Cas. 484 (1887). A
pump, insured as part of the machinery of a vessel, clogged
through valve failure and was damaged. The House of
lords held this accident arose neither through a 'peril of
the sea' nor through a cause ejusdem generis with the
enumerated perils .... This was a disquieting deciSion,
for it more than suggested that many costly accidents that
might be suffered by the expensive machinery on steam
vessels were not covered by the standard marine policy.
The result was the inclusion of the celebrated 'Inchmaree'
clause in hull policies, extending special coverage not only
to machinery breakage but to many other classes of loss
not covered by the standard perils clause as restrictively
construed." Grant Gilmore & Charles L. Black Jr., The Law
ofAdmiralty 48, at 74 n.90 (2d ed. 1975).
inchoate (in-koh-it), adj. (I6c) Partially completed or
imperfectly formed; just begun. Cf. CHOATE. -incho
ateness, n.
"The word 'inchoate,' not much used in ordinary discourse,
means 'just begun,' 'undeveloped.' The common law has
given birth to three general offences which are usually
termed 'inchoate' or 'preliminary' crimes -attempt, con
spiracy, and incitement. A principal feature of these crimes
is that they are committed even though the substantive
offence is not successfully consummated. An attempt fails,
a conspiracy comes to nothing, words of incitement are
ignored -in all these instances, there may be liability
for the inchoate crime." Andrew Ashworth, Principles of
Criminal Law 395 (1991).
inchoate crime. See inchoate offense under OFFENSE
(1).
inchoate dower. See DOWER.
inchoate instrument. See INSTRUMENT (3).
inchoate interest. See INTEREST (2).
inchoate lien. See LIEN.
inchoate offense. See OFFENSE (1).
inchoate right. 1. A right that has not fully developed,
matured, or vested. 2. Patents. An inventor's right
that has not yet vested into a property right because
the patent application is pending. [Cases: Patents C=>
182.]
incident, adj. (ISc) Dependent upon, subordinate to,
arising out of, or otherwise connected with (something
else, usu. of greater importance) <the utility easement
is incident to the ownership ofthe tract>.
incident, n. (ISc) 1. A discrete occurrence or happening
<an incident of copyright infringement> 2. A depen
dent, subordinate, or consequential part (of something
else) <child support is a typical incident ofdivorce>.
incidental, adj. (I7c) Subordinate to something ofgreater
importance; having a minor role <the FAA determined
that the wind played only an incidental part in the
plane crash>.
incidental admission. See ADMISSION (1).
incidental authority. See AUTHORITY (1).
incidental beneficiary. See BENEFICIARY.
incidental damages. See DAMAGES.
incidental demand. See DEMAND (1).
incidental main motion. See MOTION (2).
incidental motion. See MOTION (2).
incidental power. See incident power under POWER (3).
incidental use. See USE (1).
incidenter (in-si-den-t;:lr). [Latin] Hist. Incidentally.
incident of ownership. (usu. pl.) (1821) Any right of
control that may be exercised over a transferred life
insurance policy so that the policy's proceeds will
be included in a decedent's gross estate for estate-tax
purposes <because Douglas still retained the incidents
of ownership after giving his life-insurance policy to
his daughter, the policy proceeds were taxed against
his estate> . The incidents of ownership include the rights to change the policy's beneficiaries and to borrow
against, assign, and cancel the policy. [Cases: Internal
Revenue C=>41SS.]
incident power. See POWER (3).
incident to employment. Workers' compensation. A risk
that is related to or connected with a worker's job duties.
[Cases: Workers' Compensation C=>61O-611.]
incidere (in-sid-;:l-ree), vb. [Latin "fall into or on"] Roman
law. To come within the scope of a law or to fall into a
legal category; esp. to become involved in a situation
that entangles a person in a legal action . This term
had a similar meaning under English law. For example,
a person might become liable to (or "fall into") amerce
ment (incidere in misericordiam). See AMERCEMENT.
incipitur (in-sip-i-t;:lr). [Law Latin] Hist. It is begun .
This refers to the practice of entering the commence
ment ofa pleading on the court roll.
incite, vb. (ISc) To provoke or stir up (someone to commit
a criminal act, or the criminal act itself). Cf. ABET.
incitee. A person who has been incited, esp. to commit
a crime.
inciteful, adj. Tending to incite <inciteful speech>.
incitement, n. (ISc) 1. The act or an instance of pro
voking, urging on, or stirring up. 2. Criminal law. The
act of persuading another person to commit a crime;
SOLICITATION (2). [Cases: Criminal Law C=>4S.]
inciteful, adj.
"An inciter is one who counsels, commands or advises the
commission of a crime. It will be observed that this defini
tion is much the same as that of an accessory before the
fact. What, then, is the difference between the two? It is
that in incitement the crime has not (or has not necessarily)
been committed, whereas a party cannot be an accessory
in crime unless the crime has been committed. An acces
sory before the fact is party to consummated mischief;
an inciter is guilty only of an inchoate crime." Glanville
Williams, Criminal Law612 (2d ed. 1961).
"Emphasis upon the theory of one offense with guilt attach
ing to several is quite appropriate because it is still part of
the groundwork of our legal philosophy, so far as perpetra
tors, abettors and inciters are concerned, despite the fact
that some of the statutes require lipservice to the notion
of a separate substantive offense, in the effort to |
despite the fact
that some of the statutes require lipservice to the notion
of a separate substantive offense, in the effort to avoid
certain procedural difficulties. It explains how one may be
guilty of a crime he could not perpetrate, by having caused
or procured it as a result of his abetment or incitement."
Rollin M. Perkins & Ronald N. Boyce, Criminal Law 732-33
(3d ed. 1982).
inciter. (ISc) A person who incites another to commit a
crime; an aider or abettor.
inciting revolt. See MUTINY.
incivile (in-siv-;:l-lee), adj. [Law Latin] Irregular; out of
the due course oflaw.
incivism (in-si-viz-;:lm). (18c) Unfriendliness toward
one's own country or its government; lack of good
citizenship.
inclausa (in-klaw-zJ). [Law Latin] Hist. An enclosure
near a house; a home close. See CLOSE (1).
in clientela (in klr-Jn-tee-l;:l). [Latin] Hist. In the relation
between client and patron.
831 income
inclose, vb. See ENCLOSE.
inclosure. See ENCLOSURE.
include, vb. (I5c) To contain as a part of something. -The
participle including typically indicates a partial list <the
plaintiff asserted five tort claims, including slander and
libel>. But some drafters use phrases such as including
without limitation and including but not limited to
which mean the same thing. See NAMELY.
included offense. See lesser included offense under
OFFENSE (1).
inclusionary-approach rule. (1981) The principle that
evidence ofa prior crime, wrong, or act is admissible for
any purpose other than to show a defendant's criminal
propensity as long as it is relevant to some disputed
issue and its probative value outweighs its prejudicial
effect. [Cases: Criminal Law ~--:)369.2(1).]
indusio unius est exclusio alterius. See EXPRESSIO UNIUS
EST EXCLUSIO ALTERIUS.
inclusive deed. See inclusive grant under GRANT.
inclusive grant. See GRANT.
inclusive legal positivism. See INCORPORATIONISM.
inclusive survey. See SURVEY.
incognito (in-kog-nee-toh or in-kog-ni-toh), adj. or adv.
[Latin "unknown"] (l7c) Without making one's name or
identity known <Binkley flew incognito to France>.
incola (in-k<l-l<l), n. [Latin "an inhabitant"] Roman law. A
foreign resident without full civil rights; the inhabitant
of a foreign colony. -The term is used particularly for
provincial residents who were not Roman citizens.
Also termed (in English) incolant. Cf. PEREGRINUS.
income. (16c) The money or other form of payment that
one receives, usu. periodically, from employment,
business, investments, royalties, gifts, and the like. See
EARNINGS. Cf. PROFIT.
accrued income. (1869) Money earned but not yet
received.
accumulated income. Income that is retained in an
account; esp., income that a trust has generated, but
that has not yet been reinvested or distributed by the
trustee. ICases: Internal Revenue ~4008.]
accumulated taxable income. lhe income of a corpo
ration as adjusted for certain items (such as excess
charitable contributions), less the diVidends-paid
deduction and the accumulated-earnings credit. _
It serves as the base upon which the accumulated
earnings tax is imposed. See accumulated-earn
ings tax under TAX. [Cases: Internal Revenue
3833.J
active income. (1972) 1. Wages; salary. 2. Income from
a trade or business.
adjusted gross income. (1940) Gross income minus
allowable deductions specified in the tax code. -
Abbr. AGI. [Cases; Taxation <>:>3447.J
adjusted ordinary gross income. A corporation's gross
income less capital gains and certain expenses. The IRS uses this calculation to determine whether
a corporation is a personal holding company. If60%
or more of a corporation's AOGI consists of certain
passive investment income, the company has met the
test for personal-holding-company c1assification.IRC
(26 USCA) 543(b). -Abbr. AOGI. See personal
holding company under COMPANY. [Cases: Internal
Revenue ~3853-3858.]
aggregate income. (1926) The combined income of a
husband and wife who file a joint tax return. [Cases:
Internal Revenue ~3566.1, 4481.]
blocked income. Money earned by a foreign taxpayer
but not subject to U.S. taxation because the foreign
country prohibits changing the income into dollars.
current income. Income that is due within the present
accounting period. -Also termed current revenue.
deferred income. (1918) Money received at a time later
than when it was earned, such as a check received in
January for commissions earned in November.
disposable income. (1960) Income that may be spent
or invested after payment of taxes and other primary
obligations. -Also termed disposable earnings.
distributable net income. (1918) The amount of dis
tributions from estates and trusts that the beneficia
ries will have to include in income. [Cases: Internal
Revenue ~3173, 4018.]
dividend income. (1930) The income resulting from
a dividend distribution and subject to tax. [Cases:
Internal Revenue ~3743-3774; Taxation
3458.]
earned income. (1894) Money derived from one's own
labor or active participation; earnings from services.
Cf. unearned income (2).
exempt income. (1947) Income that is not subject to
income tax. [Cases: Internal Revenue C=::4045-4071;
Taxation (;:::;,3518.]
fixed income. Money received at a constant rate, such
as a payment from a pension or annuity.
gross income. (1843) Total income from all sources
before deductions, exemptions, or other tax reduc
tions. See IRC (26 USCA) 61. Also termed gross
earnings. [Cases: Taxation ~3447.]
imputed income. (1948) lhe benefit one receives from
the use of one's own property, the performance of
one's services, or the consumption of self-produced
goods and services.
income in respect ofa decedent. (1945) Income earned
by a person, but not collected before death. This
income is included in the decedent's gross estate for
estate-tax purposes. For income-tax purposes, it is
taxed to the estate or, if the estate does not collect
the income, it is taxed to the eventual recipient.
Abbr. IRD. [Cases: Internal Revenue ~4035-4039;
Taxation ~3495.J
"If a decedent has earned income that he or she had not
received before death and was not entitled to receive before
death. such income is known -for Federal Income Tax
832 income-and-expense declaration
purposes as 'income in respect of a decedent' (I.R.D.).
For example, if the decedent earned fees or salary or wages
for work done before death but not payable until later, and
if decedent was a cash method taxpayer (versus an accrual
method taxpayer), that earned but unpaid income would
not properly be shown on the final income tax return filed
for the decedent, for that taxable period ends with the
date of death. Rather it is I.R.D. that becomes taxable to
the estate of the decedent.'"John K. McNulty, Federal Estate
and Gift Taxation in a Nutshell 89 (5th ed. 1994).
investment income. See unearned income (1).
net income. (18c) Total income from all sources minus
deductions, exemptions, and other tax reductions.
Income tax is computed on net income. -Also
termed net earnings. [Cases: Taxation ~3448.]
net operating income. Income derived from operating
a business, after subtracting operating costs.
nonoperating income. Business income derived from
investments rather than operations.
operating income. See ordinary income (1).
ordinary income. (1860) 1. For business-tax purposes,
earnings from the normal operations or activities
of a business. Also termed operating income. 2.
For individual income-tax purposes, income that is
derived from sources such as wages, commissions,
and interest (as opposed to income from capital
gains). [Cases: Internal Revenue (;:=>3230.1-3257;
Taxation 3466.]
other income. Income not derived from an entitv's
principal business, such as earnings from dividen'ds
and interest.
passive income. (1958) Income derived from a business,
rental, or other income-producing activity that the
earner does not directly participate in or has no
immediate control over. See PASSIVE ACTIVITY. Cf.
portfolio income.
passive investment income. Investment income that
does not involve or require active participation, such
as gross receipts from royalties, rental income, divi
dends, interest, annuities, and gains from the sale
or exchange of securities. IRC (26 USCA) 1362(d).
[Cases: Internal Revenue
personal income. (1851) The total income received by
an individual from all sources.
portfolio income. (1978) Income not derived in the
ordinary course ofa trade or business, such as interest
earned on saVings, dividends, royalties, capital gains,
or other investment sources. For tax purposes,
losses on passive activities cannot be used to offset
net portfolio income. Cf. passive income.
prepaid income. (1935) Income received but not yet
earned. Also termed deferred revenue.
previously taxed income. An S corporation's undistrib
uted taxable income taxed to the shareholders as ofthe
last day of the corporation's tax year . This income
could usu. be withdrawn later by the shareholders
without tax consequences. PTr has been replaced by the accumulated adjustments account. -Abbr.
PTI.
real income. Income adjusted to allow for inflation or
deflation so that it reflects true purchasing power.
regular income. Income that is received at fixed or
specified intervals.
split income. (1949) An equal division between spouses
of earnings reported on a joint tax return, allowing
for equal tax treatment in community-property and
common-law states.
taxable income. (1856) Gross income minus all allow
able deductions and exemptions . Taxable income
is multiplied by the applicable tax rate to compute
one's tax liability. [Cases: Internal Revenue 0=)4529;
Taxation (;:=>3448.]
unearned income. (1921) 1. Earnings from investments
rather than labor. Also termed investment income.
2. Income received but not yet earned; money paid in
advance. Cf. earned income.
unrelated-business income. (1952) Tax. Gross income
earned by a nonprofit corporation from activities
unrelated to its nonprofit functions . A nonprofit
corporation's income is tax-exempt only to the extent
that it is produced by activities directly related to its
nonprofit purpose. Also termed unrelated-busil1eSS
taxable income. IRC (26 USCA) 512(a)(3)(A). [Cases:
Internal Revenue (;:=>4068.]
"The [Internal Revenue] Service has justified the unrelated
business income tax as a means of preventing unfair
competition between tax-exempt and for-profit provid
ers. Thus, part of the analysis of whether income from
a business venture is unrelated business taxable income
focuses on the impact of the activity on competitors by
inquiring whether the activity at issue is one generally
offered by commercial enterprise. The categorization of
a business activity of an exempt organization as related
or unrelated to the exempt purpose of the organization
follows very few bright-line rules. Approaches to the
question of exempt purposes within the context of unre
lated business income differ substantially from those used
in the context of the qualification of an entity for exempt
status itself: Barry R. Furrow et aI., Health Law 81, at
419 (2d ed. 2000).
income-and-expense declaration. Family law. In child
support litigation, a document that contains infor
mation on a parent's income, assets, expenses, and
liabilities. -Also termed financial statement. [Cases:
Child Support ~183.]
income approach. (1951) A method of appraising real
property based on capitalization ofthe income that the
propertyis expected to generate. -Also termed illcome
capitalization approach. Cf. MARKET APPROACH; COST
APPROACH. [Cases: Taxation
income averaging. Tax. A method ofcomputing tax by
averaging a person's current income with that of pre
ceding years. [Cases: Internal Revenue (;::=03092.]
"A distinct departure from the strict annual system of
taxing income is the concept of averaging income, allowed
until repeal by the 1986 T.R.A .... [T]he rate at which the
item was taxed was made to depend not only on the rates
and level of income for that year, but upon the taxpayer's
833 in confinio majoris aetatis
experience over the past four years. The item was (some
times) taxed as if it had been received over a fouryear
period. Especially for authors, actors, athletes, and other
taxpayers who have fluctuating or bunched income and
face graduated tax rates that apply on an annual basis,
income averaging was most important." John K. McN |
bunched income and
face graduated tax rates that apply on an annual basis,
income averaging was most important." John K. McNulty,
Federal Income Taxation of Individuals in a Nutshell 353
(5th ed. 1995).
income-based plan. See CHAPTER 13.
income-basis method. A method ofcomputing the rate
of return on a security using the interest and price paid
rather than the face value.
income beneficiary. See BENEFICIARY.
income bond. See BOND (3).
income-capitalization approach. See INCOME
APPROACH.
income exclusion. See EXCLUSION (1).
income fund. See MUTUAL FUND.
income in respect ofa decedent. See INCOME.
income property. See PROPERTY.
income-shifting. (1957) The practice of transferring
income to a taxpayer in a lower tax bracket, such as
a child, to reduce tax liability . Often this is accom
plished by forming a Clifford trust. See Clifford trust
under TRUST; kiddie tax under TAX.
income statement. (1863) A statement ofall the revenues,
expenses, gains, and losses that a business incurred
during a given period. -Also termed statement of
income; profit-and-Ioss statement; earnings report. Cf.
BALANCE SHEET.
income stock. See STOCK.
income tax. See TAX.
income-tax deficiency. See DEFICIENCY (2).
income-tax return. See TAX RETURN.
income-tax withholding. See WITHHOLDING.
income-withholding order. (1986) A court order pro
viding for the withholding of a person's income by an
employer, usu. to enforce a child-support order. -Also
termed wage-withholding order; wage-assignment order;
wage assignment. Cf. ATTACHMENT OF WAGES.
income yield. See CAPITALIZATION RATE.
in commendam (in k;l-men-d;Jlu). [Law Latin] Civil law.
In trust. The phrase typically refers to property held
in a limited partnership. See limited partnership under
PARTNERSHIP. [Cases: Partnership C=>349.]
in common. (16c) Shared equally with others, undi
vided into separately owned parts. -Also termed in
communi. See tenancy in common under TENANCY.
in communi (in k;l-myoo-nr). [Law Latin] In common.
incommunicado (in-b-myoo-ni-kah-doh), adj.
[Spanish] (1844) 1. Without any means ofcommunica
tion. 2. (Of a prisoner) having the right to communicate
with only a few designated people. in communiforma (in k;l-myoo-nr for-m;l). [Law Latin]
Hist. In common form; in general form rather than
special form. -Also written in forma communi.
incommutable (in-b-myoot-;l-b;ll), adj. (18c) (Of an
offense) not capable of being commuted. See COMMU
TATION.
incompatibility, n. (1875) Conflict in personality and
disposition, usu.leading to the breakup ofa marriage .
Every state now recognizes some form ofincompatibil
ity as a no-fault ground for divorce. See noJault divorce
under DIVORCE. Cf. IRRECONCILABLE DIFFERENCES;
IRRETRIEVABLE BREAKDOWN OF THE MARRIAGE.
Incompatibility Clause. The clause ofthe U.S. Constitu
tion prohibiting a person from simultaneously holding
offices in both the executive and legislative branches of
the federal government. U.S. Const. art. I, 6, par. 2, cl.
2. [Cases: Officers and Public Employees C=>30.3.]
incompetence, n. (17c) 1. The state or fact of being
unable or unqualified to do something <the dispute
was over her alleged incompetence as a legal assistant>.
2. INCOMPETENCY <the court held that the affidavit was
inadmissible because of the affiant's incompetence>.
incompetency, n. (17c) Lack of legal ability in some
respect, esp. to stand trial or to testify <once the defense
lawyer established her client's incompetency, the client
did not have to stand trial>. -Also termed incompe
tence; mental incompetence. Cf. INCAPACITY. [Cases:
Mental Health C=>432; Witnesses C=>35.] -incom
petent, adj.
incompetency hearing. See PATE HEARING.
incompetent, adj. (l6c) 1. (Of a witness) unqualified to
testify. [Cases: Witnesses C=>35.] 2. (Of evidence) inad
missible. This sense is often criticized, as in the quo
tation below. [Cases: Criminal Law C=>385; Evidence
C=>148.]
"[/ncompetentl is constantly used loosely as equivalent to
'inadmissible' on any ground. This use should be avoided."
John H. Wigmore, A Students' Textbook of the Law of
Evidence 36 (1935).
incompetent evidence. See EVIDENCE.
incomplete instrument. See INSTRUMENT (3).
incompleteness rejection. See REJECTION.
incomplete transfer. See TRANSFER.
in computo (in k;lm-pyoo-toh). [Law Latin] Hist. In com
putation.
inconclusive, adj. (18c) (Of evidence) not leading to a
conclusion or definite result.
in confinio majoris aetatis (in bn-fin-ee-oh m;l-jor-is
ee-tay-tis). [Latin] Hist. Having nearly attained
majority. A person that undertook an obligation in
confinio majoris aetatis could be held liable despite
the fact that the person pleaded minority status. See
MAjORENNITATI PROXIMUS. Cf. IN CONFINIO MINORIS
AETATIS.
834 in confinio minoris aetatis
in confinio minoris aetatis (in k;m-fin-ee-oh mi-nor
is ee-tay-tis). [Latin) Hist. Having nearly attained
minority. Cf. IN CONFINIO MAJORIS AETATIS.
in consequentiam (in kon-sa-kwen-shee-am). [Latin]
Hist. As a consequence.
in consideratione inde (in bn-sid-a-ray-shee-oh-nee
in-dee). [Law Latin] In consideration thereof.
in consideratione legis (in bn-sid-a-ray-shee-oh-nee
lee-jis). [Law Latin]l. In consideration or contempla
tion oflaw. 2. In abeyance.
in consideratione praemissorum (in bn-sid-a-ray-shee
oh-nee pree-mi-sor-am). [Law Latin] In consideration
ofthe premises.
in consimili casu (in kan-sim-a-h kay-s[y] 00). See CASU
CONSIMILI.
inconsistent, adj. (17c) Lacking agreement among parts;
not compatible with another fact or claim <inconsistent
statements>.
inconsistent defense. See DEFENSE (1).
inconsistent presumption. See conflicting presumption
under PRESUMPTION.
inconsistent statement. See prior inconsistent statement
under STATEMENT.
in conspectu ejus (in kan-spek-t[yJoo ee-jas). [Law Latin]
In his sight or view.
in contemplation of death. See CONTEMPLATION OF
DEATH.
incontestability clause. Insurance. An insurance-pol
icy provision (esp. found in a life-insurance policy)
that prevents the insurer, after a specified period (usu.
one or two years), from disputing the policy's validity
on the basis of fraud or mistake; a clause that bars all
defenses except those reserved (usu. conditions and the
payment ofpremiums). Most states require that a life
insurance policy contain a clause making the policy
incontestable after it has been in effect for a specified
period, unless the insured does not pay premiums or
violates policy conditions relating to military service.
Some states also require similar provisions in accident
and sickness policies. -Also termed noncontestabil
ily clause; incontestable clause; uncontestable clause.
Cf. CONTESTABILITY CLAUSE. [Cases: Insurance C=:>
3121.]
incontestability status. Trademarks. A classification of
a trademark that meets certain criteria including
commercial use for five years after being placed on the
Principal Register -as immune from legal challenge.
Although incontestability does not confer absolute
immunity, it makes a challenge much more difficult 15
GSCA 1065. [Cases: Trademarks C=:> 1352.]
incontestable policy. See INSURANCE POLICY.
incontinenti (in-kon-ti-nen-tI), adv. [Law Latin) Imme
diately; without any interval or intermission. -Also
spelled in continenti.
incontrovertible-physical-facts doctrine. See PHYSICAL
FACTS RULE. inconvenience. See RULE OF INCONVENIENCE.
inconvenient forum. See FORUM NON CONVENIENS.
incorporamus (in-kor-pa-ray-mas). [Law LatinJ Hist. We
incorporate . This word indicated an intent to incor
porate.
"All the other methods therefore whereby corporations
exist, by common law, by prescription, and by act of
parliament, are for the most part reducible to this of the
king'5 letters patent, or charter of incorporation. The
king's creation may be performed by the words 'creamus,
erigimus, fundamus, incorporamus,' or the like," 1 William
Blackstone, Commentaries on the Laws of England 461
(1765).
incorporate, vb. (14c) 1. To form a legal corporation <she
incorporated the family business>. [Cases: Corpora
tions C=:>1.J 2. To combine with something else <incor
porate the exhibits into the agreement>. 3. To make
the terms of another (esp. earlier) document part of a
document by specific reference <the codicil incorpo
rated the terms ofthe will>; esp., to apply the provisions
ofthe Bill ofRights to the states by interpreting the 14th
Amendment's Due Process Clause as encompassing
those provisions.
incorporation, n. (15c) 1. The formation of a legal cor
poration. See ARTICLES OF INCORPORATION. [Cases:
Corporations C=:> 1.] 2. Constitutional law. The process
of applying the provisions of the Bill of Rights to the
states by interpreting the 14th Amendment's Due
Process Clause as encompassing those provisions .
In a variety ofopinions since 1897, the Supreme Court
has incorporated the First, Fourth, Sixth, and Ninth
Amendments into the Fourteenth Amendment's Due
Process Clause. [Cases: Constitutional Law C=:>3850.]
selective incorporation. Incorporation of certain
provisions of the Bill of Rights. Justice Benjamin
Cardozo, who served from 1932 to 1938, first advo
cated this approach. [Cases: Constitutional Law
3850.]
total incorporation. Incorporation ofall of the Bill of
Rights. Justice Hugo Black, who served on the U.S.
Supreme Court from 1937 to 1971, first advocated this
approach. [Cases: Constitutional Law C=:>3850.J
3. INCORPORATION BY REFERENCE. incorporate,
vb.
incorporation by reference. (1886) 1. A method of
making a secondary document part of a primary
document by including in the primary document
a statement that the secondary document should be
treated as ifit were contained within the primary one.
With a contract, the document to be incorporated
must be referred to and described in the contract in
such a way that the document's identity is clear beyond
doubt. With a will, the rule applies only to clearly iden
tified writings that existed when the testator signed the
will. Gnif. Probate Code 2-510. Not all jurisdictions
follow this rule for either contracts or wills. -Often
shortened to incorporation. Also termed adoption by
reference. [Cases: Contracts Wills (;:='98.1 2.
Patents. The explicit inclusion in one patent application
of information already contained in another document,
such as another patent or patent application . Gener
ally, the reference must be to a U.S. patent or applica
tion ifthe information is essential (i.e., the description,
enabling disclosure, or best mode), but otherwise it
may be to a foreign patent or a nonpatent publication.
Incorporation by reference is often used in a continuing
application to cite the disclosure contained in a parent
application. Cf. CROSS-REFERENCE. [Cases: Patents
99.] 3. Patents. The inclusion in a patent claim ofinfor
mation from an external drawing or table . Incorpora
tion by reference is a necessity doctrine, available when
there is no other practical way to convey the informa
tion in words, and when it is more concise and clear
to refer the examiner to the graphic element. [Cases:
Patents (;:::c. 100.]
incorporationism. The philosophical view that (1) law
is made possible by an interdependent convergence of
behavior and attitude, esp. in agreements that take the
form of social conventions or rules; (2) authoritative
legal pronouncements must distinguish some situa
tions from others; and (3) the legality of norms can
depend on their substantive moral merit, not just on
their pedigree or social source. See Jules Coleman,Ihe
Practice ofPrinciple (2001); Wl Waluchow, Inclusive
Legal Positivism (1994). -Also termed soft positivism;
inclusive legal positivism.
incorporator. (1883) A person |
termed soft positivism;
inclusive legal positivism.
incorporator. (1883) A person who takes part in the for
mation ofa corporation, usu. by executing the articles
of incorporation. -Also termed corporator.
"An 'incorporator' must be sharply distinguished from a
'subscriber.' The latter agrees to buy shares in the cor
poration; in other words, a subscriber is an investor and
participant in the venture. An 'incorporator' on the other
hand serves the largely ceremonial or ministerial functions
described in this section. At one time many states required
that an incorporator also be a subscriber of shares;
however, such requirement appears to have disappeared
in all states." Robert W. Hamilton, The Law ofCorporations
in a Nutshell 34 (3d ed. 1991).
in corpore (in kor-p<1-ree). [Latin] In body or substance;
in a material thing or object.
incorporeal (in-kor-por-ee-<1I), adj. (ISc) Having a con
ceptual existence but no physical existence; INTANGI
BLE <copyrights and patents are incorporeal property>.
Cf. CORPOREAL. -incorporeality, n.
incorporeal chattel. See incorporeal property under
PROPERTY.
incorporeal hereditament. See HEREDITAMENT.
incorporeal ownership. See OWNERSHIP.
incorporeal possession. See POSSESSION.
incorporeal property. See PROPERTY.
incorporeal right. See RIGHT.
incorporeal thing. 1. See incorporeal property under
PROPERTY. 2. See THING.
in corporihus sed non in quantitatibus (in kor-por-<1
b;JS sed non in kwon-ti-tay-t;J-b<1s). [Law Latin] Hist.
In separate and distinct subjects, but not in things estimated in quantities . The phrase appeared in ref
erence to the best of a decedent's movable property
to which an heir had a right. This property typically
included animals and equipment but not wine or grain
because wine and grain were estimated in quantities.
incorrigibility (in-kor-J-jJ-bil-;3-tee or in-kahr-), n. (14c)
Serious or persistent misbehavior by a child, making
reformation by parental control impossible or unlikely.
Cf. JUVENILE DELINQUENCY. [Cases: Infants (;:::c151.]
incorrigible, adj.
incorrigible (in-kor-;>-j;>-b;31 orin-kahr-), adj. (14c) Inca
pable ofbeing reformed; delinquent.
incorrigible child. See CHILD.
Incoterm (in[gJ-koh-t;3rm). A standardized shipping
term, defined by the International Chamber of
Commerce, that apportions the costs and liabilities
of international shipping between buyers and sellers.
See EX WORKS; COST, INSURANCE, AND FREIGHT; COST
AND FREIGHT; FREE ALONGSIDE SHIP; FREE ON BOARD.
[Cases: Shipping 104.]
increase (in-krees), n. (14c) 1. The extent ofgrowth or
enlargement. 2. Archaic. 'Ihe produce ofland or the
offspring ofhuman beings or animals. -increase (in
krees), vb.
increase, costs of. See COSTS OF INCREASE.
increased-risk-of-harm doctrine. See LOSS-OF-CHANCE
DOCTRINE.
increment (in[g]-kr<1-m;3nt), n. (lSc) A unit of increase
in quantity or value. -incremental, adj.
unearned increment. An increase in the value of real
property due to population growth.
incremental cash flow. See CASH FLOW.
incrementum (in-kr;3-men-tJm). [Latin] Hist. Increase.
This term appeared in various phrases, such as costs
de incremento ("costs of increase"). See COSTS OF
INCREASE.
increscitur (in-kres-i-t;3r). See ADDITUR.
incriminate (in-krim-d-nayt), vb. (18c) 1. To charge
(someone) with a crime <the witness incriminated the
murder suspect>. 2. To identify (oneself or another) as
being involved in the commission of a crime or other
wrongdoing <the defendant incriminated an accom
plice>. Also termed criminate. incriminatory,
adj.
incriminating. adj. (18c) Demonstrating or indicat
ing involvement in criminal activity <incriminating
evidence>.
incriminating admission. See ADMISSION (1).
incriminating circumstance. See CIRCUMSTANCE.
incriminating evidence. See EVIDENCE.
inCriminating statement. See STATEMENT.
incrimination. (I8c) 1. The act ofcharging someone with
a crime. 2. The act of involving someone in a crime.
Also termed crimination. See SELF-INCRIMINATION.
incroach, vb. Archaic. See ENCROACH.
incroachment. Archaic. See ENCROACHMENT.
in cujus rei testimonium (in kyoo-jas ree-I tes-ta-moh
nee-am). [Law Latin) Hist. In witness whereof. -These
words were used to conclude deeds. The modern
phrasing ofthe testimonium clause in deeds and other
instruments beginning with in witness whereof -is
a loan translation of the Latin.
inculpatae tutelae moderatio. See MIDERAMEN INCUL
PATAE TCTELAE.
inculpate (in-kdl-payt or in-kal-payt), vb. (18c) 1. To
accuse. 2. To implicate (oneself or another) in a crime
or other wrongdoing; INCRIMINATE. -inculpation,
n. -inculpatory (in-bl-p;:Hor-ee), adj.
inculpatory evidence. See EVIDENCE.
incumbent (in-k;>m-b:mt), n. (15c) One who holds an
official post, esp. a political one. incumbency, n.
incumbent, adj.
incumbrance. See ENCUMBRANCE.
incur, vb. (15c) To suffer or bring on oneself (a liability or
expense). incurrence, n. incurrable, adj.
incurramentum (in-ka-ra-men-tdm). [fr. Latin in "upon"
+ currere "to run"] Hist. The incurring of a fine or
penalty.
incurred risk. See ASSUMPTION OF THE RISK (2).
in cursu diligentiae (in k"r-s[yJoo dil-d-jen-shee-ee).
[Law Latin] Hist. In the course ofdoing diligence -i.e.,
executing a judgment.
in cursu rebellionis (in br-s[yJoo ri-bel-ee-oh-nis). [Law
Latin] Hist. In the course ofrebellion.
"In cursu rebellion is . .. All persons were formerly
regarded as in rebellion against the Crown who had been
put to the horn for non-fulfilment of a Civil obligation; their
whole moveable estate fell to the Crown as escheat; they
might be put to death with impunity; and lost all their legal
privileges, Ifthe denunciation remained unrelaxed for year
and day (which was the time known as the cursus rebel
!ionis), the rebel was esteemed civiliter mortuus, and his
heritage reverted to the superior .... Denunciation for civil
obligation and its consequences were in effect abolished
by the Act 20 Geo. II. c. 50." John Trayner, Trayner's Latin
Maxims 257 (4th ed. 1894),
in custodia legis (in kd-stoh-dee-a lee-jis). [Latin) In
the custody ofthe law <the debtor's automobile was in
custodia legiS after being seized by the sheriff>. -The
phrase is traditionally used in reference to property
taken into the court's charge during pending litigation
over it. Also termed in legal custody. [Cases: Attach
ment Execution C:;::J 55; Garnishment <:>::>58,]
in damno vitando (in dam-noh vI-tan-doh). [Latin] Hist.
In endeavoring to avoid damage (or injury).
inde (in-dee), adv. [Latinj Hist. Thence; thereof, _ This
word appeared in several Latin phrases, such as quod
eat inde sine die ("that he go thence without day").
indebitatus (in-deb+tay-tas), p.pl. [Law Latin] Indebted.
See NUNQUAM INDEBITATUS. indebitatus assumpsit (in-deb-i-tay-tds a-s3m[p]-sit).
See ASSt:MPSIT.
indebiti solutio (in-deb-i-tI sd-Hyjoo-shee-oh). [Latin]
Roman & Scots law. Payment of what is not owed.
Money paid under the mistaken belief that it was owed
could be recovered by condictio indebiti. See condictio
indebiti under CONDICTIO.
"Indebiti Solutio When a person has paid in error what
he was not bound to pay the law lays upon the person who
has received payment a duty of restitution, . , , Payment
(solutio) includes any performance whereby one person
has been enriched at the expense of another. Usually it
will be the handing over of money or of some other thing,
but it may also consist in undertaking a new liability or in
discharging an existing liability." R.w. Lee, The Elements of
Roman Law 373-74 (4th ed. 1956),
indebitum (in-deb-i-tdm), n. & adj. Roman law. A debt
that in fact is not owed. -Money paid for a nonexistent
debt could be recovered by the action condictio indebiti.
Cf. DEBITUM.
"A conditional debt if paid could be recovered as an inde
bitum, so long as the condition was outstanding." W,W.
Buckland, A Manual of Roman Private Law 255 (2d ed.
1939).
indebtedness (in-det-id-nis). (17c) 1. The condition or
state ofowing money. 2. Something owed; a debt.
indecency, n. (16c) The state or condition of being out
rageously offensive, esp. in a vulgar or sexual way.
Unlike obscene material, indecent speech is protected
under the First Amendment. Cf. OBSCENITY. [Cases:
Obscenity C:;::J LJ indecent, adj.
"Obscenity is that which is offenSive to chastity. Indecency
is often used with the same meaning, but may also include
anything which is outrageously disgusting, These were not
the names of common-law crimes, but were words used in
describing or identifying certain deeds which were," Rollin
M. Perkins & Ronald N. Boyce, Criminal Law 471 (3d ed.
1982),
indecent advertising. 1. Signs, broadcasts, or other forms
ofcommunication that use grossly objectionable words,
symbols, pictures, or the like to sell or promote goods,
services, events, etc. 2. Archaic, In some jurisdictions,
the statutory offense of advertising the sale ofaborti
facients and (formerly) contraceptives.
indecent assault. See sexual assault (2) under ASSAULT.
indecent assault by contact. See sexual assault (2) under
ASSAULT.
indecent assault by exposure. See INDECENT EXPOSURE.
indecent exhibition. The act of publicly displaying or
offering for sale something (such as a photograph or
book) that is outrageously offensive, esp, in a vulgar or
sexual way, [Cases: Obscenity C:;::J6, 7.)
indecent exposure. (1828) An offensive display of one's
body in public, esp. of the genitals. -Also termed
indecent assault by exposure; exposure ofperson. Cf.
LEWDNESS; OBSCENITY. [Cases: Obscenity <r":::>3.]
"Indece.nt exposure of the person to public view is also a
common-law misdemeanor. Blackstone did not deal with it
separately. The last offense which I shall mention,' he said,
'more immediately against religion and morality, and cogni
zable by the temporal courts, is that of open and notorious
lewdness; either by frequenting houses of ill fame, which
is an indictable offense; or by some grossly scandalous
and public indecency, for which the punishment is by fine
and imprisonment.' In other words private indecency was
exclusively under the jurisdiction of the ecclesiastical court
but public indecency ofan extreme nature was indictable:
Rollin M. Perkins & Ronald N. Boyce, Criminal Law 473 (3d
ed. 1982) (quoting 4 William Blackstone, Commentaries on
the Laws of England 64 (l769)).
indecent liberties. (I8c) Improper behavior, usu. toward
another person, esp. ofa sexual nature. [Cases: Infants
indedmable (in-des-<l-m<l-bl), adj. Hist. Not titheable;
not liable for tithes.
indefeasible (in-d<l-feez-<l-b;ll), adj. (16c) (Of a claim or
right) not vulnerable to being defeated, revoked, or lost
<an indefeasible estate>.
indefeasible remainder. See REMAINDER.
indefeasibly vested remainder. See indefeasible remain
der under REMAINDER.
indefensus (in-da-fen-s;ls), n. [Latin "undefended"]
Roman law. A person who fails to make a defense or
plea to an action . The term later acquired a similar
meaning in English law.
indefinite detainee. See NONREMOVABLE INMATE.
indefinite failure ofissue. See FAILURE OF ISSUE.
indefinite payment. See PAYMENT.
|
indefinite failure ofissue. See FAILURE OF ISSUE.
indefinite payment. See PAYMENT.
indefinite postponement. See postpone indefinitely
under POSTPONE.
indefinite sentence. See indeterminate sentence under
SENTENCE.
indefinite sentencing. See INDETERMINATE SENTENC
ING.
in Dei nomine (in dee-I nahm-a-nee). [Latin) Hist. In the
name ofGod. The opening phrase ofcertain writs.
in delicto (in d;l-Iik-toh). [Latin] In fault. See IN PARI
DELICTO. Cf. EX DELICTO (1).
indemnification (in-dem-na-fi-kay-shan), n. (I8c) 1. The
action of compensating for loss or damage sustained.
2. The compensation so made. [Cases: Indemnity
20.) -indemnificatory, adj.
indemnifier. See INDEMNITOR.
indemnify (in-dem-na-fI), vb. (17c) 1. To reimburse
(another) for a loss suffered because of a third party's
or one's own act or default; HOLD HARMLESS. [Cases:
Indemnity C=::>20-84.J 2. To promise to reimburse
(another) for such a loss. [Cases: Indemnity
3. To give (another) security against such a loss.
indemnifiable, adj.
indemnis (in-dem-nis), adj. [Latin] Hist. Free from loss
or damage; harmless.
indemnitee (in-dem-na-tee). (1884) One who receives
indemnity from another. [Cases: Indemnity C=::>3I(3),
33,63.) indemnitor (in-dem-na-t;lr or -tor). (1827) One who
indemnifies another. -Also termed indemnifier.
[Cases: Indemnity C=::>3I(3), 33,63.)
indemnity (in-dem-na-tee), n. (ISc) 1. A duty to make
good any loss, damage, or liability incurred by another.
[Cases: IndemnityC=::>20, 25, 50-61.]2. The right of
an injured party to claim reimbursement for its loss.
damage, or liability from a person who has such a duty.
3. Reimbursement or compensation for loss, damage,
or liability in tort; esp., the right ofa party who is sec
ondarily liable to recover from the party who is primar
ily liable for reimbursement of expenditures paid to a
third party for injuries resulting from a violation of a
common-law duty. Cf. CONTRIBUTION. indemni
tory, adj.
contractual indemnity. Indemnity that is expressly
provided for in an agreement. [Cases: Indemnity
C=::>25.)
double indemnity. (1859) The payment of twice the
basic benefit in the event of a specified loss, esp. as
in an insurance contract requiring the insurer to pay
twice the policy's face amount in the case ofacciden
tal death. rCases: Insurance
equitable indemnity. 1. A doctrine allOWing a defen
dant in a tort action to allocate blame to a codefendant
or cross-defendant, and thereby to proportionally
reduce legal responsibility, even in the absence ofcon
tractual indemnity. -Also termed implied indem
nity; doctrine ofequitable indemnity. 2. See implied
contractual indemnity. 3. See implied indemnity.
[Cases: Indemnity C=::>51.j
implied contractual indemnity. Indemnity that is not
expressly provided for by an indemnity clause in an
agreement but is nevertheless determined to be rea
sonably intended by the parties, based on equitable
considerations. Also termed eqUitable indemnity.
lCases: Indemnity C=::>54.J
implied indemnity. Indemnity arising from equitable
considerations and based on the parties' relationship,
as when a guarantor pays a debt to a creditor that the
principal debtor should have paid. Also termed
equitable indemnity. [Cases: Indemnity
indemnity against liability. (1838) A right to indem
nitythat arises on the indemnitor's default, regardless
ofwhether the indemnitee has suffered a loss. [Cases:
Indemnity C=::>31(4), 42.)
"Indemnity against Liability ~-Where the indemnity is
against liability, the cause of action is complete and the
indemnitee may recover on the contract as soon as his
liability has become fixed and established, even though
he has sustained no actual loss or damage at the time he
seeks to recover. Thus, under such a contract, a cause
of action accrues to the indemnitee on the recovery of a
judgment against him, and he may recover from the indem
nitor without proof of payment of the judgment." 42 c.J.5.
Indemnity 22 (1991).
indemnity bond. See BOND (2).
indemnity clause. (1860) A contractual provision in
which one party agrees to answer for any specified or
838 indemnity contract
unspecified liability or harm that the other party might
incur. -Also termed hold-harmless clause; save-harm
less clause. Cf. EXEMPTION CLAUSE. [Cases: Indemnity
C=>25,31(4).]
indemnity contract. See CONTRACT.
indemnity insurance. See first-party insurance under
INSURANCE.
indemnity land. 1. Public land granted to a railroad
company to help defray the cost ofconstructing a right
of-way . This land indemnifies a railroad company
for land given in a previous grant but later rendered
unavailable for railroad use by a disposition or reser
vation made after the original grant. [Cases: Public
Lands C=>70.] 2. Federally owned land granted to a
state to replace previously granted land that has since
been rendered unavailable for the state's use. -Also
termed place land.
indemnity mortgage. See deed oftrust under DEED.
indemnity principle. Insurance. The doctrine that an
insurance policy should not confer a benefit greater
in value than the loss suffered by the insured. [Cases:
Insurance C=>2104.]
indenization (in-den-i-zay-sh,m), n. See DENIZATION.
indenizen. See ENDENIZEN.
indent, n. 1. Hist. An indented certificate ofindebtedness
issued by the U.S. government or a state government
in the late 18th or early 19th century. 2. A contract or
deed in writing.
indent (in-dent), vb. Hist. 1. To cut in a serrated or wavy
line; esp., to sever (an instrument) along a serrated line
to create multiple copies, each fitting into the angles of
the other. See CHIROGRAPH; INDENTURE (1).
"If a deed be made by more parties than one, there ought to
be regularly as many copies of it as there are parties, and
each should be cut or indented (formerly in acute angles
instar dentium, but at present in a waving line) on the top
or side, to tally or correspond with the other; which deed,
so made, is called an indenture.... Deeds thus made
were denominated syngrapha by the canonists; and with
us chirographa, or hand-writings; the word cirographum or
cyrographum being usually that which is divided in making
the indenture ...." 2 William Blackstone, Commentaries on
the Laws ofEngland 295-96 (1766).
2. To agree by contract; to bind oneself. 3. To bind (a
person) by contract.
indented deed. See INDENTURE (1).
indenture (in-den-chdr), n. (14c) 1. A formal written
instrument made by two or more parties with differ
ent interests, traditionally having the edges serrated, or
indented, in a zigzag fashion to reduce the possibility of
forgery and to distinguish it from a deed poll. -Also
termed indented deed. Cf. deed poll under DEED. [Cases:
Deeds C=>3.] 2. A deed or elaborate contract Signed by
two or more parties.
''The distinction between a deed poll and an indenture is
no longer important since 8 & 9 Vict. C. 106, 5. Formerly
a deed made by one party had a polled or smooth-cut
edge, a deed made between two or more parties was
copied for each on the same parchment, and the copies
cut apart with indented edges, so as to enable them to be identified by fitting the parts together. Such deeds were
called indentures. An indented edge is not now necessary
to give the effect of an indenture to a deed purporting to
be such." William R. Anson, Principles ofthe Law ofContract
84 (Arthur l. Corbin ed., 3d Am. ed. 1919).
"An indenture was a deed with the top of the parchment
indented, i.e., having an irregular edge. The deed was
written out twice on a single sheet of parchment, which
was then severed by cutting it with an irregular edge; the
two halves of the parchment thus formed two separate
deeds which could be fitted together to show their genu
ineness. This contrasted with a 'deed poll,' a deed to which
there was only one party, which at the top had been polled,
or shaved even." Robert E. Megarry & M.P. Thompson, A
Manual of the Law of Real Property 129 (6th ed. 1993).
corporate indenture. A document containing the terms
and conditions governing the issuance ofdebt securi
ties, such as bonds or debentures. [Cases: Corpora
tions C=>471.]
debenture indenture. (1938) An indenture contain
ing obligations not secured by a mortgage or other
collateral. It is a long-term financing vehicle that
places the debenture holder in substantially the same
position as a bondholder secured by a first mortgage.
[Cases: Corporations C=>470.]
trust indenture. 1. A document containing the terms
and conditions governing a trustee's conduct and the
trust beneficiaries' rights. -Also termed indenture
oftrust. [Cases: Trusts C=> 19-29.] 2. See deed oftrust
under DEED.
3. Hist. A contract by which an apprentice or other
person, such as a servant, is bound to a master, usu.
for a term ofyears or other limited period. -inden
tured, adj.
indentured servant. See SERVANT.
indenture ofa fine. Hist. A document engrossed by the
chirographer of fines to reflect penalties assessed by
the court. The chirographer prepared indentures in
duplicate on the same piece of parchment, then split
the parchment along an indented line through a word,
sentence, or drawing placed on the parchment to help
ensure its authenticity. See CHIROGRAPHER OF FINES.
indenture oftrust. See trust indenture under INDEN
TURE.
indenture trustee. See TRUSTEE (1).
independence, n. (17c) The state or quality ofbeing inde
pendent; esp., a country's freedom to manage all its
affairs, whether external or internal, without control
by other countries.
independent, adj. (17c) 1. Not subject to the control or
influence of another <independent investigation>. 2.
Not associated with another (often larger) entity <an
independent subsidiary>. 3. Not dependent or contin
gent on something else <an independent person>.
independent adjuster. See ADJUSTER.
independent adoption. See private adoption under
ADOPTION.
independent advice. (1871) Counsel that is impartial
and not given to further the interests of the person
839
giving it . Whether a testator or donor received inde
pendent advice before making a disposition is often
an important issue in an undue-influence challenge to
the property disposition. Also termed proper inde
pendent advice.
independent agency. See AGENCY (3).
independent agent. See AGENT (2).
independent audit. See AUDIT.
independent claim. See PATENT CLAIM.
independent conception. See INDEPENDENT DEVELOP
MENT.
independent contract. See CONTRACT.
independent contractor. (1841) One who is entrusted
to undertake a specific project but who is left free to
do the assigned work and to choose the method for
accomplishing it. It does not matter whether the work
is done for payor gratuitously. Unlike an employee, an
independent contractor who commits a wrong while
carrying out the work usu. does not create liability for
the one who did the hiring. -Also termed contract
labor. Cf. EMPLOYEE. [Cases: Labor and Employment
C=29,3125.]
independent counseL See COUNSEL.
independent covenant. See COVENANT (1).
independent creation. Copyright. A defense assert
ing that a later work is not a derivative of an alleg
edly infringed work, but is a product of coincidentally
parallel labor. [Cases: Copyrights and Intellectual
Property <;::75.]
independent development. Intellectual property. A
defense against an industrial-espionage charge wherein
the user shows that the property was independently dis
covered or conceived . Trademarks, symbols, inven
tions, and other types of intellectual property are all
subject to independent deVelopment. Also termed
independent conception.
independent executor. See EXECUTOR.
independent force. See FORCE.
independent intervening cause. See intervening cause
under CAUSE (1).
independent invention. See INVENTION.
independent investigation committee. See SPECIAL
LITIGATION COMMITTEE.
independent-Jiving program. Family law. A training
course designed to enable foster children who are near
the age of majority to leave the foster-care system and
manage their own affairs as adults . Independent |
children who are near
the age of majority to leave the foster-care system and
manage their own affairs as adults . Independent
living programs provide education, training, and
financial and employment counseling. They also help
many foster youth in locating suitable post-foster-care
housing. Permanency planning orders or case plans
can -but are not required to provide for indepen
dent living as a goal for a child in long-term foster care
and describe how it is to be accomplished. See AGING
OUT; PERMANENCY PLAN. indeterminate conditional release
independent medical examination. An assessment of
a person's physical condition and health that is made
by an impartial health care professional, usu. a physi
cian. Abbr. IME. [Cases: Damages (~:'206.]
independent mental evaluation. An assessment of a
person's mental and emotional condition that is made
by an impartial mental-health professional, such as a
psychologist or psychiatrist. Cf. PSYCHIATRIC EXAMI
NATION. -Abbr. IME. [Cases: Damages (>206.]
independent personal representative. See personal rep
resentative under REPRESENTATIVE.
independent-practice association. A network of inde
pendent healthcare providers who contract with a
health-maintenance organization (HMO) to provide
services to the HMO's subscribers at negotiated rates.
Independent-practice associations generally remain
free to accept patients who subscribe to other HMOs or
who are not members ofan HMO. -Abbr. IPA.
independent probate. See informal probate under
PROBATE.
independent promise. See unconditional promise under
PROMISE.
independent regulatory agency. See independent agency
under AGENCY (3).
independent regulatory commission. See independent
agency under AGENCY (3).
independent retirement account. See INDIVIDUAL
RETIREMENT ACCOUNT.
independent-significance doctrine. (1968) Wills &
estates. The principle that effect will be given to a tes
tator's disposition that is not done solely to avoid the
requirements ofa will. An example is a will provision
that gives the contents ofthe testator's safe-deposit box
to his niece. Because the safe-deposit box has utility
("significance") independent of the will, the gift of its
contents at the testator's death is valid.
independent-source hearing. See HEARING.
independent-source rule. (1968) Criminal procedure.
The rule providing -as an exception to the fruit-of
the-poIsonous-tree doctrine that evidence obtained
by illegal means may nonetheless be admissible if that
evidence is also obtained by legal means unrelated to
the original illegal conduct. See FRUIT-OF-THE-POISON
OUS-TREE DOCTRINE. Cf. INEVITABLE-DISCOVERY RULE.
[Cases: Criminal Law '::=394.1(3).]
independent state. See SOVEREIGN STATE.
independent union. See UNION.
indestructible trust. See TRUST.
indeterminate, adj. (14c) Not definite; not distinct or
precise,
indeterminate bond. See BOND (3).
indeterminate conditional release. A release from
prison granted once the prisoner fulfills certain con
ditions . The release can be revoked if the prisoner
breaches other conditions. [Cases: Prisons C=248.]
840 indeterminate damages
indeterminate damages. See discretionary damages
under DAMAGES.
indeterminate obligation. See OBLIGATION.
indeterminate sentence. See SENTENCE.
indeterminate sentencing. See SENTENCING.
indeterminate sentencing. (1941) The practice of not
imposing a definite term of confinement, but instead
prescribing a range for the minimum and maximum
term, leaving the precise term to be fixed in some other
way, usu. based on the prisoner's conduct and apparent
rehabilitation while incarcerated. Also termed indef
inite sentencing. See indeterminate sentence under
SENTENCE. [Cases: Sentencing and Punishment
1124.]
in detrimentum animi (in de-tra-men-tam an-a-mr).
[Latin] Hist. To the injury of the soul. -The phrase
appeared in reference to the ground upon which a person
was prohibited from questioning a legal document that
the person had sworn to never question.
index, n. (14c) 1. An alphabetized listing of the topics or
other items included in a single book or document, or
in a series ofvolumes, usu. found at the end of the book,
document, or series <index ofauthorities>.
grantee-grantor index. (1961) An index, usu. kept in
the county clerk's or recorder's office, alphabetically
listing by grantee the volume and page number ofthe
grantee's recorded property transactions. _ In some
jurisdictions, the grantee-grantor index is combined
with the grantor-grantee index. [Cases: Records
8.]
grantor-grantee index. (1944) An index, usu. kept in
the county clerk's or recorder's office, alphabetically
listing by grantor the volume and page number of
the grantor's recorded property transactions. [Cases:
Records (;::::>8; Vendor and Purchaser (;::::>231.]
tract index. (1858) An index, usu. kept in the county
clerk's or recorder's office, listing, by location of each
parcel ofland, the volume and page number of the
recorded property transactions affecting the parcel.
[Cases: Records C~~8; Vendor and Purchaser
231.]
2. A number, usu. expressed in the form of a percentage
or ratio, that indicates or measures a series ofobserva
tions, esp. those involving a market or the economy
<cost-of-living index> <stock index>.
advance-decline index. A stock-market indicator
showing the cumulative net difference between stock
price advances and declines.
index animi sermo (in-deks an-a-mr sar-moh). [Latin]
Speech is the index ofthe mind. -This maxim supports
the concept that the language of a statute or instrument
is the best guide to the drafter's intent.
indexation. See INDEXING.
index crime. See index offense under OFFENSE (1).
index fund. See MUTUAL FUND. indexing. 1. The practice or method of adjusting wages,
pension benefits, insurance, or other types of payments
to compensate for inflation. 2. The practice of investing
funds to track or mirror an index ofsecurities. -Also
termed indexation.
index lease. See LEASE.
index of authorities. (1881) An alphabetical list of
authorities cited in a book or brief, usu. with subcat
egories for cases, statutes, and treatises. -Also termed
table ofauthorities; table ofcases. [Cases: Appeal and
Error (;::::>756.]
index offense. See OFFENSE (1).
Index of Patents. An annual two-part publication ofthe
u.s. Patent and Trademark Office, containing the year's
List ofPatentees (Part I) and Index to Subjects ofInven
tions (Part II), arranged by class and subclass.
Index ofTrademarks. An annual publication ofthe U.S.
Patent and Trademark Office, listing all trademarks
registered in a given year.
Index to the U.S. Patent Classification System. An
entry-level aid to using the Patent Office's classifica
tion system, comprising an estimated 65,000 common
terms and phrases and referring each entry to a class
and subclass within the system.
Indian child. Under the Indian Child Welfare Act, any
unmarried person under the age of 18 who either is a
member ofan Indian tribe or is both eligible for mem
bership in an Indian tribe and the biological child of a
member ofan Indian tribe. See INDIAN CHILD WELFARE
ACT. [Cases: Indians C:::>132.]
Indian Child Welfare Act. A federal act that governs
child-custody proceedings including foster-care
placement, preadoptive placement, adoptive placement,
and termination ofparental rights -in cases involving
a child of American Indian descent. 25 USCA 1911
et seq. -Congress enacted the Act to help protect the
best interests ofIndian children, to promote the stabil
ity and security of Indian tribes and families, and to
counteract the disproportionate foster-care placement
and adoption of Indian children by non-Indians. The
Act provides minimum federal standards for removing
Indian children from their families and for placing
them in foster or adoptive homes that will provide an
environment reflecting the values of the Indian culture.
The Act has an important jurisdictional feature: in a
custody dispute involving an Indian child who resides
in or is domiciled within an Indian reservation, the
tribe and its tribal courts have exclusive jurisdiction.
And in a custody dispute involving an Indian child who
lives off a reservation, upon petition, any state court
should usu. defer and transfer the case to the tribal
court unless a party demonstrates good cause to the
contrary. Abbr. ICWA. [Cases: Indians C=>213.}
Indian Claims Commission. A federal agency dis
solved in 1978 that adjudicated claims brought by
American Indians, a tribe, or another identifiable group
ofIndians against the United States. -The U.S. Court
of Federal Claims currently hears these claims.
841 indictio
Indian country. 1. The land within the borders of all
Indian reservations, the land occupied by an Indian
community (whether or not located within a recog
nized reservation), and any land held in trust by the
United States but beneficially owned by an Indian or
tribe. 2. Hist. Any region (esp. during the U.S. westward
migration) where a person was likely to encounter
Indians.
Indian gambling. See GAMBLING.
Indian land. Land owned by the United States but held
in trust for and used by American Indians. -Also
termed Indian tribal property. Cf. TRIBAL LAND. [Cases:
Indians 15l.]
Indian law. See NATIVE AMERICAN LAW.
Indian reservation. An area that the federal government
has designated for use by an American Indian tribe,
where the tribe generally settles and establishes a tribal
government. [Cases: Indians (;:=-, 156.]
Indian Territory. A former U.S. territory -now a part
of the state of Oklahoma -to which the Cherokee,
Choctaw, Chickasaw, Creek, and Seminole tribes were
forcibly removed between 1830 and 1843. In the late
19th century, most of this territory was ceded to the
United States, and in 1907 the greater part ofit became
the State of Oklahoma.
Indian title. A right of occupancy that the federal gov
ernment grants to an American Indian tribe based
on the tribe's immemorial possession ofthe area.
Congress does not recognize tribal ownership of the
land, only possession. A tribe or nation must actually,
exclusively, and continuously use the property to estab
lish that it is the ancestral home. An individual may
claim Indian title by showing that the individual or his
or her lineal ancestors continuously occupied a parcel
ofland, as individuals, before the land was closed to
settlers. Also termed aboriginal title; right of occu
pancy. Cf. aboriginal title (1) under TITLE (2). [Cases:
Indians (::::> 151.J
Indian tribal property. See INDIAN LAND.
Indian tribe. A group, band, nation, or other organized
group of indigenous American people, including any
Alaskan native village, that is recognized as eligible
for the special programs and services provided by the
U.S. government because ofIndian status (42 USCA
9601(36; esp., any such group haVing a federally rec
ognized governing body that carries out substantial
governmental duties and powers over an area (42 USCA
300f(14); 40 CFR 146.3). A tribe may be identi
fied in various ways, esp. by past dealings with other
tribes or with the federal, state, or local government,
or by recognition in historical records. [Cases: Indians
(::::> 102.J
"The Indian tribe is the fundamental unit of Indian law;
in its absence there is no occasion for the law to operate.
Yet there is no all-purpose definition of an Indian tribe. A
group of Indians may qualify as a tribe for the purpose
of one statute or federal program, but fail to qualify for
others. Definitions must accordingly be used with extreme caution." William C. Canby Jr.. American Indian Law in a
Nutshell 3-4 (2d ed. 1988).
indicare (in-di-kair-ee), vb. [Latin] 1. Roman law. To
accuse (someone) ofa crime; to provide evidence against
someone. 2. Civil law. To show or discover. 3. Civil law.
To fix or tell the price ofa thing. See INDICIUM.
indicator. (17c) Securities. An average or index that
shows enough of a correlation to market trends or
economic conditions that it can help analyze market
performance.
coincident indicator. An economic or market-activ
ity index or indicator that shows changing trends
near the same time that overall conditions begin to
change.
economic indicator. See ECONOMIC INDICATOR.
lagging indicator. 1. An index that indicates a major
stock-market change sometime after the change
occurs. 2. See lagging economic indicator under
ECONOMIC INDICATOR.
leading indicator. 1. A quantifiable index that predicts
a major stock-market change. 2. See leading economic
indicator under ECONOMIC INDICATOR.
indicavit (in-di-kay-vit). [Law Latin "he has indicated"]
Hist. A writ of prohibition by which a church patron
removes to a common-law court an ecclesiastical-court
action between two clerics who dispute each other's
right to a benefice . The writ was long available
nominally up to the 20th century under the 1306
statute De Conjunctim Feoffatis (34 Edw. 1), Actions
concern |
1306
statute De Conjunctim Feoffatis (34 Edw. 1), Actions
concerning clerics' rights to a benefice were usu. tried
in ecclesiastical courts, but they could be removed to
a common-law court if the action involved a church
patron in some way, as when one cleric was appointed
by a certain patron and the other cleric was appointed
by another patron. Cf. ADVOWSON.
indicia (in-dish-ee-a), n. pl. (l7c) 1. Roman law. Evidence.
2. (pl.) Signs; indications <the purchase receipts are
indicia of ownership>.
indicia oftitle. A document that evidences ownership of
personal or real property. [Cases: Property (::::>9.]
indicium (in-dish-ee-am), n. [Latin] Roman law. 1. The
act of prOViding evidence against an accused. 2. The
act ofpromising recompense for a certain service. 3. A
I sign or mark; esp., something used as a type of proof.
I See INDlCARE.
indict (in-drt), vb. (17c) To charge (a person) with a crime
by formal legal process, esp. by grand-jury presenta
tion. Also formerly spelled endUe; indite.
indictable misdemeanor. See serious misdemeanor
under MISDEMEANOR.
indictable offense. See OFFENSE (1).
indictee (in-dI-tee). (16c) A person who has been
indicted; one officially charged with a crime.
indictio (in-dik-shee-oh), n. [Latin] I. Roman law. An
imperial proclamation establishing a 15-year period for
the reassessment of property values for tax purposes.
indictment 842
Indictio also referred to the IS-year cycle itself. 2. A
declaration or proclamation, such as a declaration of
war (indictio belli). 3. An indictment. PI. indictiones
(in -dik-shee-oh- neez).
indictment (in-dIt-m;mt), n. 04c) 1. The formal written
accusation of a crime, made by a grand jury and pre
sented to a court for prosecution against the accused
person. See Fed. R. Crim. P. 7. [Cases: Indictment and
Information 17.]2. The act or process ofpreparing
or bringing forward such a formal written accusation.
Cf. INFORMATION; PRESENTMENT (2).
barebones indictment. (1963) An indictment that cites
only the language of the statute allegedly violated;
an indictment that does not provide a factual state
ment.
"What has been called 'a bare bones indictment using only
statutory language' is quite common, and entirely permis
sible so long as the statute sets forth fully, directly, and
expressly all essential elements of the crime intended to
be punished." 1 Charles Alan Wright, Federal Practice and
Procedure 125, at 55859 (3d ed. 1999).
duplicitous indictment (d[y]oo-plis-;)-t<'}s). (1914) 1.
An indictment containing two or more offenses in
the same count. [Cases: Indictment and Information
C=125.J 2. An indictment charging the same offense
in more than one count.
joint indictment. (17c) An indictment that charges two
or more people with an offense.
indictor (in-dIt-dr or in-dI-tor). (17c) A person who
causes another to be indicted.
in diem (in dI-dm ordee-<lm). [Latin] For each day; per
day. Cf. PER DIEM.
in diem addictio. See ADDICTIO IN DIEM.
indifference. (15c) A lack ofinterest in or concern about
something; apathy.
conscious indifference. 1. Criminal law. See deliberate
indifference (2). 2. Torts. See deliberate indifference
(3).
deliberate indifference. 1. Criminal law. (1951) The
careful preservation of one's ignorance despite aware
ness of circumstances that would put a reasonable
person on notice of a fact essential to a crime. See
JEWELL INSTRUCTION. 2. Criminal law. Awareness of
and disregard for the risk ofharm to another person's
life, body, or property. 3. Torts. Conscious disregard
ofthe harm that one's actions could do to the interests
or rights ofanother. -Also termed reckless indiffer
ence; conscious avoidance; conscious indifference.
reckless indifference. See deliberate indifference.
indigena (in-dij-d~n<lJ. [Latin "native"] Hist. A subject
born within the English realm or naturalized by act of
Parliament. Cf. ALIENIGENA.
indigency, n. (17c) The state or condition ofa person who
lacks the means of subsistence; extreme hardship or
neediness; poverty . For purposes ofthe Sixth Amend
ment right to appointed counsel, indigency refers to
a defendant's inability to afford an attorney. Also termed indigence. [Cases: Criminal Law ~1766.l
indigent, adj. & n.
"Supreme Court opinions speak generally of the rights
of an 'indigent defendant' without offering any specific
definition of 'indigency: ... The appellate courts agree
that indigency is not a synonym for 'destitute: ... Among
the factors to be considered in evaluating the individual's
financial capacity are: (l) income from employment and
such governmental programs as social security and unem
ployment compensation. (2) real and personal property;
(3) number of dependents; (4) outstanding debts; (5) serio
ousness of the charge (which suggests the likely fee of a
retained attorney); and (6) other legal expenses (such as
bail bond)." Wayne R. Lafave & Jerold H. Israel, Criminal
Procedure 11.3(g), at 544 (2d ed. 1992).
indigent (in-di-jdnt), n. (15c) 1. A poor person. 2. A
person who is found to be financially unable to pay
filing fees and court costs and so is allowed to proceed
in forma pauperis . The Supreme Court has recog
nized an indigent petitioner's right to have certain fees
and costs waived in divorce and termination-of-paren
tal-rights cases. Boddie v. Connecticut, 401 U.S. 371,
91 S.Ct. 780 (1971); M.L.B. v. S.L,J., 519 U.S. 102, 117
S.Ct. 555 (1996). See PAUPER; IN FORMA PAUPERIS.
indigent, adj.
indigent defendant. (1882) A person who is too poor
to hire a lawyer and who, upon indictment, becomes
eligible to receive aid from a court~appointed attorney
and a waiver of court costs. See IN FORMA PAUPERIS.
Cf. PAUPER. [Cases: Costs Criminal Law~
1766.]
indignity (in-dig-nHee), n. (16c) Family law. A ground
for divorce consisting in one spouse's pattern of
behavior calculated to humiliate the other. -Also
termed personal indignity. Cf. CRUELTY. [Cases: Divorce
~29.1
indirect aggression. See AGGRESSION.
indirect attack. See COLLATERAL ATTACK.
indirect confession. See CONFESSION.
indirect contempt. See CONTEMPT.
indirect cost. See COST (1).
indirect damages. See consequential damages under
DAMAGES.
indirect evidence. See circumstantial evidence (1) under
EVIDENCE.
indirect loss. See consequential loss under LOSS.
indirect notice. See implied notice under NOTICE.
indirect possession. See mediate possession under pos-
SESSION.
indirect-purchaser doctrine. (1976) Antitrust. The
principle that in litigation for price discrimination,
the court will ignore sham middle parties in deter
mining whether different prices were paid by different
customers for the same goods . This doctrine gives
standing to bring an antitrust action to a party who
is not an immediate purchaser ofa product. Thus, if a
manufacturer sells a product to a retailer, but dictates
the terms by which the retailer must sell the product
843
to a consumer, a court will ignore the retailer and treat
the consumer as the direct purchaser of the product.
[Cases: Antitrust and Trade Regulation C-~967.]
indirect tax. See TAX.
indiscriminate attack. lnt'llaw. An aggressive act that
(1) is not carried out for a specific military objective,
(2) employs a means of combat not directed at a specific
military objective, or (3) employs a means of combat
the effects of which cannot be limited in accordance
with an international protocol such as the Geneva Con
ventions of 1949 and their protocols or the Hague Con
ventions of 1899 and 1907.
indispensable-element test. Criminal law. A common
law test for the crime of attempt, based on whether
the defendant acquires control over any thing that is
essential to the crime . Under this test, for example, a
person commits a crime by buying the explosives with
which to detonate a bomb. See ATTEMPT (2). [Cases:
Criminal Law
indispensable evidence. See EVIDENCE.
indispensable instrument. See INSTRUMENT (3).
indispensable party. See PARTY (2).
indistanter (in-di-stan-t;)r), adv. [Law Latin "immedi
ately"] Forthwith; without delay.
indite. See INDICT.
individual, adj. (I5c) 1. Existing as an indivisible entity.
2. Ofor relating to a single person or thing, as opposed
to a group.
individual account plan. See defined-contribution plan
under EMPLOYEE BENEFIT PLAN.
individual asset. See ASSET.
individual contract. See Cml/TRACT.
individual debt. See DEBT.
individual goodwill. See personal goodwill under
GOODWILL.
individualized educational placement. See INDIVIDt:
ALIZED EDUCATION PROGRAM.
individualized education program. Family law. A spe
cially designed plan ofeducational instruction for a
child with disabilities . The individualized education
program is a written plan that details the particular
child's abilities, the child's educational goals, and the
services to be provided. Abbr. IEP. -Also termed
individualized educational placement. See child with
disabilities under CHILD; INDIVIDUALS WITH DISABILI
TIES EDUCATION ACT.
individual liberty. See personal liberty under LIBERTY.
individual property. See SEPARATE PROPERTY (1).
individual proprietorship. See SOLE PROPRIETORSHIP.
individual retirement account. (1974) A savings or bro
kerage account to which a person may contribute up to
a specified amount ofearned income each year . The
contributions, along with any interest earned in the
account, are not taxed until the money is withdrawn indorsee
after a participant reaches 59'12 (or before then, ifa 10%
penalty is paid). Abbr. IRA. Also termed inde
pendent retirement account. Cf. KEOGH PLAN. [Cases:
Internal Revenue ~3594.1
education individual retirement account. An indi
vidual retirement account from which withdrawals
may be made tax-free ifthe withdrawn funds are used
for education costs . Before 2002, annual contribu
tions were limited to $500. In 2002, the contribution
limit increased to $2,000 per year for families with
incomes under $190,000.
Roth IRA. (1991) An IRA in which contributions are
nondeductible when they are made . No further
taxes are assessed on the contributions (or accrued
interest) when the money is withdrawn (ifall applica
ble rules are followed). This term takes its name from
Senator William Roth, who sponsored the legislation
creating this type ofIRA.
Individuals with Disabilities Education Act. A federal
statute that governs the public education of children
with phYSical or mental handicaps and attempts to
ensure that these children receive a free public educa
tion that meets their unique needs . The Education of
All Handicapped Children Act (enacted in 1975) was
renamed the Individuals with Disabilities Education
Act in 1990, and this Act was substantially amended
in 1997. All states currently participate in this joint fed
eral-state initiative. 20 USCA 1400-1485. Abbr.
IDEA.
individual voluntary arrangement. English law. A
formal out-of-court arrangement between a debtor
and two or more lenders to freeze the interest rate
of a debt and payoff a percentage of the debt over an
agreed period, at the end of which time the remaining
debt is canceled . The arrangement is an alternative
to filing for bankruptcy. It must be set up by an autho
rized insolvency practitioner but does not require court
approval. Abbr. IVA.
indivisible, adj. (14c) Not separable into parts; held by
two or more people in undivided shares <an indivis
ible debt>.
indivision. Civil law. Undivided ownership ofproperty;
the condition of being owned by coowners each haVing
an undivided interest in the property. [Cases: Joint
TenancyC=::>1.]
indivisum (in-di-v!-S;)m or -z;)m), adj. [Latin] Roman
law. (Of property) held in common; not divided.
indorse, vb. (16c) To sign (a negotiable instrument), usu.
on the back. either to accept responsibility for paying
an obligation memorialized by the instrument or to
make the instrument payable to someone other than
the payee. Also spelled endorse.
indorsee (in-dor-see). (18c) A person to whom a |
payee. Also spelled endorse.
indorsee (in-dor-see). (18c) A person to whom a negotia
ble instrument is transferred by indorsement. Also
spelled endorsee.
indorsee in due course. An indorsee who, in the
ordinary course of business, acquires a negotiable
844 indorsement
instrument in good faith for value, before its maturity,
and without knowledge ofits dishonor.
indorsement, n. (16c) 1. The placing of a signature,
sometimes with an additional notation, on the back
of a negotiable instrument to transfer or guarantee
the instrument or to acknowledge payment. [Cases:
Bills and Notes 2. lhe signature or notation
itself. -Also spelled endorsement. -indorse, vb.
'The clever indorser can subscribe his or her name under
a variety of magic phrases. The Code specifies the legal
effect of some of these phrases. Qualified indorsements
('without recourse') limit the liability of the indorser if the
instrument is dishonored, Restrictive indorsements such
as 'for deposit only,' 'pay any bank,' and the like set the
terms for further negotiation of the instrument. Their main
purpose is to prevent thieves and embezzlers from cashing
checks." 2 James J, White & Robert S. Summers, Uniform
Commercial Code 16-7, at 92-93 (4th ed. 1995).
accommodation indorsement. (1888) An indorsement
to an instrument by a third party who acts as surety
for another party who remains primarily liable. See
ACCOMMODATION PAPER. [Cases: Bills and Notes
236.]
anomalous indorsement. See irregular indorsement.
blank indorsement. An indorsement that names no
specific payee, thus making the instrument payable
to the bearer and negotiable by delivery only. UCC
3-205(b). Also termed indorsement in blank;
general indorsement. [Cases: Bills and Notes
288.]
collection indorsement. See restrictive indorsement.
conditional indorsement. (1894) An indorsement that
restricts the instrument in some way, as by limiting
how the instrument can be paid or transferred; an
indorsement giving possession of the instrument
to the indorsee, but retaining title until the occur
rence of some condition named in the indorsement.
Wordings that indicate this type ofindorsement are
"Pay to Brad Jones when he becomes 18 years ofage"
and "Pay to Brigitte Turner, or order, unless before
payment I give you notice to the contrary." Also
termed restricted indorsement; restrictive indorse
ment. Cf. special indorsement. [Cases: Bills and Notes
C;=> 190, 199, 290.J
full indorsement. 1. See irregular indorsement. 2. See
special indorsement.
general indorsement. See blank indorsement.
indorsement in blank. See blank indorsement.
indorsement in full. See special indorsement.
indorsement without recourse. See qualified indorse
ment.
irregular indorsement. (1842) An indorsement by
a person who signs outside the chain of title and
who therefore is neither a holder nor a transferor
of the instrument . An irregular indorser is gen
erally treated as an accommodation party. Also
termed anomalous indorsement;full indorsement. See ACCOMMODATION PARTY. [Cases: Bills and Notes
191,294.]
qualified indorsement. (1806) An indorsement that
passes title to the instrument but limits the indors
er's liability to later holders if the instrument is
later dishonored . Typically, a qualified indorse
ment is made by writing "without recourse" or "sans
recourse" over the signature. VCC 3-415(b). Also
termed indorsement without recourse. See WITHOUT
RECOURSE. Bills and Notes
restricted indorsement. See conditional indorsement.
restrictive indorsement. (18c) An indorsement that
includes a condition (e.g., "pay Josefina Cardoza only
if she has worked 8 full hours on April 13") or any
other language restricting further negotiation (e.g.,
"for deposit only"). Also termed collection indorse
ment. See conditional indorsement. [Cases: Bills and
Notes C;=> 190, 199, 290.J
special indorsement. (18c) An indorsement that speci
fies the person to receive payment or to whom the
goods named by the document must be delivered.
UCC 3-205(a). Also termed indorsement in full;
full indorsement. C. cDrlditional indorsement. [Cases:
Bills and Notes 289.]
trust indorsement. (1945) An indorsement stating that
the payee becomes a trustee for a third person (e.g.,
"pay Erin Ray in trust for Kaitlin Ray"); a restrictive
indorsement that limits the instrument to the use of
the indorser or another person.
unauthorized indorsement. (1840) An indorsement
made without authority, such as a forged indorse
ment. [Cases: Bills and Notes C;=>239, 279.]
unqualified indorsement. (1839) An indorsement that
does not limit the indorser's liability on the paper.
It does not, for example, include the phrase "without
recourse." [Cases: Bills and Notes C;=>281, 287, 293.]
unrestrictive indorsement. (1844) An indorsement that
includes no condition or language restricting negotia
tion. -Also termed unrestricted indorsement. [Cases:
Bills and Notes (;=)190. 199, 290.]
indorser. (18c) A person who transfers a negotiable
instrument by indorsement; speci., one who signs a
negotiable instrument other than as maker, drawer, or
acceptor. -Also spelled endorser.
accommodation indorser. (1820) An indorser who acts
as surety for another person.
in dote aestimata (in doh-tee es-ti-may-t;}). [Latin]
Roman & civil law. When the dowry was valued .
When the dowry had been valued, the husband owed
a sum of money representing the value and could
dispose ofthe specific items ofwhich the dowry was
composed.
in dubio (in d[y]oo-bee-oh), adv. & adj. [Latin] In
doubt.
induced abortion. See ABORTION.
inducement, n. (15c) l. The act or process ofenticing or
persuading another person to take a certain course of
action. Seefraud in the inducement under PRAUD.
active inducement. The act of intentionally causing a
third party to infringe a valid patent. -Active induce
ment requires proof of(1) an actual intent to cause the
patent infringement and (2) knowledge ofthe patent.
[Cases: Patents c;::::,259 (1).]
2. Contracts. The benefit or advantage that causes a
promisor to enter into a contract. 3. Criminal law. An
enticement or urging of another person to commit
a crime. 4. The preliminary statement in a pleading;
esp., in an action for defamation, the plaintiff's allega
tion that extrinsic facts gave a defamatory meaning to
a statement that is not defamatory on its face, or, in a
criminal indictment, a statement ofpreliminary facts
necessary to show the criminal character ofthe alleged
offense. Cf. INNUENDO (2); COLLOQUIUM. [Cases: Libel
and Slander c;::::,81.] -induce, vb.
inducement ofbreach ofcontract. See TORTIOUS INTER
FERENCE WITH CONTRACTUAL RELATIONS.
induciae legales (in-d[y]oo-shee-ee l~-gay-leez). [Latin]
Civil & Scots law. The days allowed after summons for
a defendant to appear in court.
inducing infringement. See infringement in the induce
ment under INFRINGEMENT.
induct, vb. (14c) 1. To put into possession of(something,
such as an office or benefice). 2. To admit as a member.
3. To enroll (a person) for military service. [Cases:
Armed Services c;::::,20.10(2).]
inductio (in-d3k-shee-oh), n. [Latin] Roman law. The
act oferasing a writing or part ofit, as when a testator
struck a legacy from a will. PI. inductiones (in-d~k
shee-oh-neez).
induction. (14c) 1. The act or process of initiating <the
induction of three new members into the legal frater
nity>. 2. The act or process of reasoning from specific
instances to general propositions <after looking at
several examples, the group reasoned by induction that
it is a very poor practice to begin a new paragraph by
abruptly bringing up a new case>. Cf. DEDUCTION (4).
indult (in-d.dt). Eccles. law. A dispensation granted by
the Pope to do or obtain something contrary to canon
law. -Historically, induits were often used for politi
cal ends. An indult granted to a sovereign empowered
the recipient to present an ecclesiastical benefice, usu.
without papal interference. Less exalted bodies, such
as the parliament ofParis and the college ofcardinals,
were sometimes granted similar privileges. -Also
termed indulto.
indulto (in-d;}l-toh). [Spanish] 1. A pardon or amnesty.
2. Hist. A duty paid on imported goods to the Spanish
or Portuguese Crown.
in duplo (in d[y]oo-ploh), adv. & adj. [Law Latin] Hist.
In double. -This term appeared in phrases such as
damna in duplo ("double damages"). -Also termed
(in Roman law) in duplum. in duriorem sortem (in d[y]uur-ee-or-am sor-t~m).
[Latin] Civil law. To the debt that it was the debtor's
interest to have first discharged. _ The phrase appeared
in reference to a debt that bound the debtor most
quickly or to which a penalty was imposed.
industrial design. Patents. The shape, configuration,
pattern, or ornament applied to a finished article of
manufacture, often to distinguish the product's appear
ance. _ A design patent may be issued to protect the
product's characteristic appearance. [Cases: Patents
c;::::,15.]
industrial-development bond. See BOND (3).
industrial disease. See OCCUPATIONAL DISEASE.
industrial espionage. See ESPIONAGE.
Industrial Espionage Act. See ECONOMIC ESPIONAGE
ACT.
industrial goods. See capital goods under GOODS.
industrial insurance. See industrial life insurance under
LIFE INSURANCE.
industrial law. See LABOR LAW.
industrial life insurance. See LIFE INSURANCE.
industrial property. Intellectual property. Patented
goods, industrial deSigns, trademarks, and copyrights
that a business owns and may exclude others from
using. Employed in the Paris Convention, the term
was not defined, but the treaty states that it is to be
construed broadly.
industrial relations. All dealings and relationships
between an employer and its employees, including
collective bargaining about issues such as safety and
benefits.
industrial-revenue bond. See industrial-development
bond under BOND (3).
industrial union. See UNION.
industry. (15c) 1. Diligence in the performance ofa task.
2. Systematic labor for some useful purpose; esp., work
in manufacturing or production. 3. A particular form
or branch of productive labor; an aggregate of enter
prises employing similar production and marketing
facilities to produce items having markedly similar
characteristics.
industry-wide liability. See enterprise liability (1) under
LIABILITY.
indutiae (in-d[y]oo-shee-ee), n. [Latin]!. Roman & int'l
law. A truce or cessation ofhostilities; an armistice. 2.
Roman & civil law. A delay allowed for performing an
obligation or other legal business. 3. Maritime law. A
period of 20 days in which a bottomry-bond debtor
may unload the ship's cargo and pay the bond. -Also
spelled induciae.
in eadem causa (in ee-ay-dam kaw-za), adv. [Latin] Hist.
In the same cause; in the same state or condition.
inebriate (in-ee-bree-~t), n. (18c) Archaic. An intoxicated
person; esp., a habitual drunkard. [Cases: Chemical
Dependents C=> 1.]
inebriated 846
inebriated (in-ee-bree-ay-tid), adj. (15c) Drunk; intoxi
cated.
ineffective assistance of counsel. See ASSISTANCE OF
COUNSEL.
ineffective revocation. See DEPENDENT RELATIVE REVO
CATION.
Ineligibility Clause. The clause ofthe U.S. Constitution
that prohibits a member ofCongress from accepting an
appointment to an executive office that was created, or
the compensation for which was increased, during the
member's service in Congress. D.S. Const. art. I, 6.
Officers and Publk Employees
ineligible, adj. (18c) (Of a person) legally disqualified to
serve in office. [Cases: Officers and Publk Employees
ineligibility, n.
in emulationem vicini (in em-Y<l-lay-shee-oh-nam Vi-S1
m), adj. [Latin "in envy or hatred ofa neighbor"] Hist.
(Of a cause ofaction) brought for an act done solely to
hurt or distress another, such as raising a high fence.
in eodem negotio (in ee-oh-dam ni-goh-shee-oh). [Latin]
Hist. Arising out ofthe same transaction.
inequitable (in- |
oh-shee-oh). [Latin]
Hist. Arising out ofthe same transaction.
inequitable (in-ek-wi-ta-bal), adj. (17c) Not fair; opposed
to principles of equity <an inequitable ruling>.
inequitable conduct. See defense ofinequitable conduct
under DEFENSE (1).
in equity. (15c) In a chancery court rather than a court of
law; before a court exercising equitable jurisdiction.
inequity (in-ek-wi-tee), n. (16c) 1. Unfairness; a lack of
equity. 2. An instance ofinjustice.
inescapable peril. See PERIL.
in esse (in es-ee also es-ay). [Latin "in being"] (16c) In
actual existence; IN BEING <the court was concerned
only with the rights of the children in esse>. Cf. IN
POSSE.
in essentialibus (in e-sen-shee-al-a-b<ls). [Law Latin]
Scots law. In the essential parts. An error in an essen
tial term of an instrument (such as a deed) was usu.
fatal.
inessential mistake. See unessential mistake under
MISTAKE.
in est de jure (in est dee joor-ee). [Latin] It is implied as
of right or by law.
in evidence. Having been admitted into evidence <the
photograph was already in evidence when the defense
first raised an objection to it>.
inevitability doctrine. See INEVITABLE-DISCLOSURE
DOCTRINE.
inevitable accident. See unavoidable accident under
ACCIDENT.
inevitable-accident doctrine. See UNAVOIDABLE-ACCI
DENT DOCTRINE.
inevitable-disclosure doctrine. Trade secrets. The legal
theory that a key employee, once hired by a competitor,
cannot avoid misappropriating the former employer's trade secrets . To justify an injunction, the plaintiff
must prove that the former employee has confidential
information and will not be able to avoid using that
knowledge to unfairly compete against the plaintiff.
Most courts have rejected this controversial doctrine on
grounds that it effectively turns a nondisclosure agree
ment into a disfavored noncompetition agreement. The
leading case upholding the doctrine is PepsiCo, Inc. v.
Redmond, 54 F,3d 1262 (7th Cir. 1995), where the court
quipped: "PepsiCo finds itselfin the position ofa coach,
one ofwhose players has left, playbook in hand, to join
the opposing team before the big game." Also termed
inevitable disclosure rule; inevitability doctrine; inevi
table misappropriation doctrine. [Cases: Antitrust and
Trade Regulation ~414.]
inevitable-discovery rule. (1873) Criminal procedure.
The rule providing as an exception to the fruit -of-the
poisonous-tree doctrine -that evidence obtained by
illegal means may nonetheless be admissible ifthe pros
ecution can show that the evidence would eventually
have been legally obtained anyway. See FRUIT-OF-THE
POISONOUS-TREE DOCTRINE. Cf. INDEPENDENT-SOURCE
RULE. [Cases: Criminal Law C=:>394.l(3).]
inevitable-misappropriation doctrine. See INEVITABLE
DISCLOSURE DOCTRINE.
eks-kam-bee-oh), adv. [Law Latin]
1;"""""14<:. This phrase appeared in deeds of
inexcusable neglect. See NEGLECT.
in executione rei judicatae (in ek-si-kyoo-shee-oh-nee
ree-I joo-di-kay-tee). [Latin] Hist. In execution of a
judgment right already judicially determined.
in exitu (in ekS-;l-t[y]Oo or eg-za-t[y]oo), adv. & adj.
[Law Latin] Hist. In issue. These words sometimes
appeared in phrases such as de materia in exitu Cof
the matter in issue").
in extenso {in ek-sten-soh}. [Latin] In full; unabridged
<set forth in extenso>.
in extremis (in ek-stree-mis). [Latin "in extremity"]
(16c) 1. In extreme circumstances. 2. Near the point of
death; on one's deathbed . Unlike in articulo mortis,
the phrase in extremis does not always mean at the
point ofdeath. Cf. IN ARTICULO MORTIS.
in facie curiae (in fay-shee-ee kyoor-ee-ee), adv. &
adj. [Law Latin "in the face of the court"] Hist. In the
presence ofthe court.
in facie ecclesiae (in fay-shee-ee e-klee-z[hlee-ee), adv.
& adj. [Law Latin "in the face of the church"] Hist. In
the presence of the church . A marriage solemnized
in a parish church or public chapel was said to be in
facie ecclesiae.
in faciendo (in fay-shee-en-doh), adv. & ad). [Law Latin
"in doing"] Hist. In the performance of an act; in
feasance. lhe phrase appeared in reference to an obli
gation to perform an act. Cf. IN FACTO PRAESTANDO.
in fact. (18c) Actual or real; resulting from the acts of
parties rather than by operation oflaw. Cf. IN LAW.
847 inference
in facto (in fak-toh), adv. [Latin] Hist. In fact; in deed.
in facto praestando (in fak-toh pree-stan-doh).
[Latin] Hist. In the performance of some act. Cf. IN
FACIENDO.
in facto proprio (in fak-toh proh-pree-oh). [Latin] Hist.
Concerning one's own act.
infamia (in-fay-mee-~), n. [Latin] Roman law. 1. Bad
reputation; ill-fame. 2. Loss ofhonor as a citizen.
infamia facti (in-fay-mee-~ fak-tI). Infamy in fact,
though not yet judicially proved.
infamia juris (in-fay-mee-<:l joor-is). Infamy estab
lished by judicial verdict.
infamis (in-fay-mis), adj. [Latin] Roman law. (Of a person
or action) of ill-repute. - A person was automatically
infamis if held liable for certain torts or breaches of
fiduciary duty. This type ofcondemnation carried with
it certain disabilities, such as disqualification from
office or ineligibility to witness a formal transaction.
infamous (in-f<:l-m<:ls), adj. (14c) 1. (Ofa person) having
a bad reputation. 2. (Of a person) deprived ofsome or
all rights of citizenship after conviction for a serious
crime. -Historically, a person convicted ofalmost any
crime became infamous. 3. (Of conduct) that is punish
able by imprisonment.
infamous crime. See CRIME.
infamous punishment. See PUNISHMENT.
infamy (in-f~-mee), n. (18c) 1. Disgraceful repute. 2. The
loss of reputation or position resulting from a person's
being convicted of an infamous crime. See infamous
crime under CRIME.
infancy. (14c) 1. MINORITY (1). 2. Early childhood.
natural infancy. At common law, the period ending at
age seven, during which a child was presumed to be
without criminal capacity.
3. The beginning stages of anything.
infangthief (in-fang-theef). [fro Old English in "in" +
fangen "taken" + theof"thief"] Hist. A privilege held
by a lord ofa manor to try, and deal summarily with, a
thief captured on the lord's land, esp. a thief captured
with plunder. -Also spelled infangthef Cf. OUT
FANGTHIEF.
infans (in-fanz), n. [Latin) Roman law. A child under
seven years old. _ On turning seven years old, an
infans became known as an impubes. An infans had
no capacity in the law. Cf. IMPUBES.
infant, n. (l4c) 1. A newborn baby. 2. MINOR (1).
"An infant in the eyes of the law is a person under the age
of twentyone years, and at that period (which is the same
in the French and generally in the American law) he or she
is said to attain majority; and for his torts and crimes an
infant may be liable; but for his contracts, as a general rule,
he is not liable, unless the contract is for necessaries." John
Indermaur, Principles ofthe Common Law 195 (Edmund H.
Bennett ed., 1st Am. ed. 1878).
"[Ilnfant the one technical word that we have as a
contrast for the person of full age stands equally well
for the new-born babe and the youth who is in his twenty-first year." 2 Frederick Pollock & Frederic William Maitland,
History ofEnglish Law Before the Time ofEdward 1439 (2d
ed.1899).
"The common-law rule provided that a person was an infant
until he reached the age of twenty one. The rule continues
at the present time, though by statute in somejurisdictions
the age may be lower." John Edward Murray Jr.. Murray on
Contracts 12, at 18 (2d ed. 1974).
infantia (in-fan-shee-~), n. [Latin] Roman law. The
period ofa person's life from birth to seven years; early
childhood.
infantiae proximus (in-fan-shee-ee prok-si-m~s). [Latin]
Roman law. Next to infancy. - A child was infantiae
proximus when slightly over seven years ofage.
infanticide (in-fant-~-sId). (17c) 1. The act of killing
a newborn child, esp. by the parents or with their
consent. _ In archaic usage, the word referred also to
the killing of an unborn child. -Also termed child
destruction; neonaticide. Cf. FETICIDE; FILIClDE (2). 2.
The practice of killing newborn children. 3. One who
kills a newborn child. Also termed child-slaying. Cf.
PROLICIDE. infanticidal, ad}.
infavorem libertatis (in f~-vor-~m lib-~r-tay-tis). [Law
Latin] In favor ofliberty.
in favorem vitae (in f~-vor-~m VI-tee), adv. [Law Latin]
In favor of life.
infect, vb. (I4c) 1. To contaminate <the virus infected the
entire network>. 2. To taint with crime <one part ofthe
city has long been infected with illegal drug-dealing>.
3. To make (a ship or cargo) liable in the seizure ofcon
traband, which is only a part ofits cargo <claiming that
the Single package of marijuana had infected the ship,
the Coast Guard seized the entire vessel>. -infection,
n. -infections, adj.
infection, doctrine of. Int'llaw. The principle that any
goods belonging to an owner ofcontraband and carried
on the same ship as the contraband may be seized or
otherwise treated in the same manner as the contra
band itself.
infeft, p.pl. Scots law. Enfeoffed. See ENFEOFF.
infeftment. Scots law. ENFEOFFMENT (1).
in feodo simpliciter (in fee-d-doh or fyoo-doh sim-plis
i-tdr). [Law Latin] In fee simple. See FEE SIMPLE.
infeotf, vb. See ENFEOFF.
infeotfment. See ENFEOFFMENT.
infer, vb. (16c) To conclude from facts or from factual
reasoning; to draw as a conclusion or inference. Cf.
IMPLY (1).
inference (in-f<:lr-~nts), n. (16c) 1. A conclusion reached
by considering other facts and deducing a logical con
sequence from them. [Cases: Criminal Law (~305,
559; Evidence 595.]
adverse inference. A detrimental conclusion drawn
by the fact-finder from a party's failure to produce
evidence that is within the party's controL -Some
courts allow the inference only if the party's failure
848 inference-on-inference rule
is attributable to bad faith. -Also termed adverse
presumption. Cf. SPOLIATION (1).
2. 1he process by which such a conclusion is reached;
the process of thought by which one moves from
evidence to proof. infer, vb. inferential, adj.
inferrer, n.
inference-on-inference rule. (1940) The principle that
a presumption based on another presumption cannot
serve as a basis for determining an ultimate fact. [Cases:
Criminal Law (:::::0306; Evidence G'::>S4.]
inference-stacking. The practice or an instance of piling
one or more inferences on each other to arrive at a legal
conclusion. -Also termed pyramiding inferences. See
INFERENCE-ON-INFERENCE RULE. [Cases: Criminal Law
(:::::0306; Evidence
inferential fact. See FACT.
inferential pleading. See argumentative pleading under
PLEADING (1).
inferior court. See COURT.
inferior judge. See JUDGE.
inferior officer. See OFFICER (1).
inferred authority. See ir!cidental authority under
AUTHORITY (1).
infertile, adj. Unable to conceive or bear offspring;
sterile. -infertility, n.
infeudate. See ENFEOFF.
infeudatio (in-fyoo-day-shee-oh). [Law Latin] Scots law.
ENFEOFFMENT.
infeudation (in-fyoo-day-sh;:m), n. Under the feudal
system oflandholding, the process of giving a person
legal possession ofland; ENFEOFFMENT (1). Cf. SUBIN
FEUDATION. -infeudate, vb.
"So thorough was the process |
FEOFFMENT (1). Cf. SUBIN
FEUDATION. -infeudate, vb.
"So thorough was the process by which the land of England
became subject to fixed obligations to the king the
process generally referred to today as the infeudation
of England -that by the time of the famous Domesday
survey, a scant twenty years after Hastings, it was possible
to assign to almost every rock and stone of English soil
its precise duty to the Crown." Thomas F. Bergin & Paul G.
Haskell, Preface to Estates in Land and Future Interests 3
(2d ed. 1984).
infibulation. See FEMALE GENITAL MUTILATION.
inficiari. See INFITIARI.
inficiatio. See INFlTIATIO.
infidel (in-f<l-d<ll). (ISc) 1. A person who does not believe
in something specified, esp. a particular religion. 2.
Hist. A person who violates a feudal oath of fealty.
infidelis (in-fi-dee-lis or -del-is). [Latin] Hist. 1. INFIDEL
(1). 2. INFIDEL (2).
infidelitas (in-fi-dee-l<l-tas or -del-<l-tas), tl. [Latin] Hist.
Infidelity; faithlessness to one's feudal oath.
"Many of the smaller misdeeds were regarded as exhibi
tions of an infidelitas, which, however, did not amount to
a felonia." 2 Frederick Pollock & Frederic W. Maitland, The
Historv ofEnglish Law Before the Time of Edward I 513-14
(2d ed. 1899). infidelity. (ISc) Unfaithfulness to an obligation; esp.,
marital unfaithfulness. Cf. ADULTERY.
infiduciare (in-fi-d[yJoo-shee-air-ee), vb. [Law Latin]
Hist. To pledge property.
in fieri (in fHI-fI), adj. [fro Latin in "in" + jieri "to be
done"] (Of a legal proceeding) that is pending or in the
course ofbeing completed.
in fine (in fI-nee or fm), adv. [Latin] 1. In short; in
summary. 2. At the end (of a book, chapter, section,
etc.).
infirmative, adj. Rare. (Of evidence) tending to weaken
or invalidate a criminal accusation <an infirmative
fact>. Cf. CRIMlNATlVE.
infirmative hypothesis. Criminal law. An approach to
a criminal case in which the defendant's innocence is
assumed, and incriminating evidence is explained in a
manner consistent with that assumption.
infirmity (in-f<lr-m<l-tee), n. (14c) Physical weakness
caused by age or disease; esp., in insurance law, an
applicant's ill health that is poor enough to deter an
insurance company from insuring the applicant.
infirm, adj.
infitiari (in-fish-ee-air-I), vb. [Latin "to deny"] Roman
law. To deny a plaintiff's allegation; esp., to deny liabil
ity on a debt. -Also spelled injiciari.
infitiatio (in-fish-ee-ay-shee-oh), n. [Latin] Roman law.
The denial of a debt or liability; the denial of a plaintiff's
allegation. -Also spelled injiciatio. PI. infitationes (in
fish-ee-ay -shee-oh -neez).
in flagrante delicto (in fl;}-gran-tee d;}-lik-toh). [Latin
"while the crime is ablaze"] (I8c) In the very act of
committing a crime or other wrong; red-handed <the
sheriff caught them in flagrante delicto>.
inflammatory (in-flam-<l-tor-ee), adj. (18c) Tending to
cause strong feelings of anger, indignation, or other
type of upset; tending to stir the passions . Evidence
can be excluded if its inflammatory nature outWeighs
its probative value. [Cases: Criminal Law (~='338(7);
Evidence (;="~146.]
inflation, n. (14c) A general increase in prices coinciding
with a fall in the real value ofmoney. Cf. DEFLATION.
inflationary, adj.
cost-push inflation. Inflation caused by a rise in pro
duction costs.
demand-pull inflation. Inflation caused by an excess
of demand over supply.
inflation rate. The pace of change in the prices ofgoods
and services in a particular period . The primary
indexes for measuring the rate are the Consumer Price
Index and the Producer Price Index.
infliction of emotional distress. 1. See lNTENTIONAL
INFLlCTlON OF EMOTIONAL DISTRESS. 2. See NEGLlGENT
INFLICTION OF EMOTIONAL DISTRESS.
influence district. See DISTRICT.
in force, adj. In effect; operative; binding.
in-force patent. See PATENT (3).
in forma communi (in for-m;) b-myoo-m) See IN
COMMUNI FORMA.
informa delicti (in for-m;) di-lik-tI). [Latin]lIist. In the
form ofa delict.
informal, adj. (16c) Not done or performed in accor
dance with normal forms or procedures <an informal
proceeding>.
informal acknowledgment. See ACKNOWLEDGMENT.
informal agency action. Administrative-agency activity
other than adjudication or rulemaking, such as inves
tigation, publicity, or supervision. Cf. RULEMAKING.
[Cases: Administrative Law and Procedure ~30l,
341.]
informal application. See PATENT APPLICATION.
informal consideration. See CONSIDERATION (2).
informal contract. See CONTRACT.
informal disposition. See DISPOSITION (2).
informal dividend. See DIVIDEND.
informal drawing. See DRAWING.
informal immunity. See pocket immunity under
IMMUNITY (3).
informal issue. See ISSUE (1).
informal marriage. See common-law marriage under
MARRIAGE (1).
informal probate. See PROBATE.
informal proceeding. See PROCEEDING.
informal proof ofclaim. See PROOF OF CLAIM.
informal rulemaking. See RULEMAKING.
informant. (17c) One who informs against another;
esp., one who confidentially supplies information to
the police about a crime, sometimes in exchange for a
reward or special treatment. -Also termed informer;
feigned accomplice.
citizen-informant. A witness who, without expecting
payment and with the public good in mind, comes
forward and volunteers information to the police or
other authorities.
informant's privilege. See PRIVILEGE (3).
in forma pauperis (in for-m<l paw-p<l-ris), adv. [Latin
"in the manner ofa pauper"] (16c) In the manner ofan
indigent who is permitted to disregard filing fees and
court costs <when suing, a poor person is generally
entitled to proceed informa pauperis>. See 28 USC A
1915; Fed. R. App. P. 24. For instance, in many juris
dictions, an indigent divorce petitioner's filing fees and
court costs are waived. Abbr. IFP. [Cases: Costs
128; Federal Civil Procedure (..-::>2734.]
informa pauperis affidavit. See poverty affidavit under
AFFIDAVIT.
in forma specifica (in for-m;) spi-sif-i-k<l). [Latin] Hist.
In the specified form. information. (15c) A formal criminal charge made by a
prosecutor without a grand-jury indictment. See Fed.
R. Crim. P. 7. The information is used to prosecute
misdemeanors in most states, and about halfthe states
allow its use in felony prosecutions as well. -Also
termed bill ofinformation. Cf. INDICTMENT. [Cases:
Indictment and Information
duplicitous information. An information that charges
two or more offenses as one count.
substitute information in lieu ofindictment. An infor
mation that the prosecutor files to take the place of
a preViously returned indictment, usu. because the
indictment is defective or because the prosecutor has
added, altered, or deleted facts and allegations. [Cases:
Indictment and Information
informatioual member. See nonvoting member under
MEMBER.
informational picketing. See PICKETING.
informational privacy. See PRIVACY.
informational report. See REPORT (1).
Information Analysis and Infrastructure Protection
Directorate. 1he division of the U.S. Department of
Homeland Security responsible for analyzing intel
ligence information gathered from the Central Intel
ligence Agency, the Defense Intelligence Agency, the
Federal Bureau ofInvestigation, the National Security
Administration, and other sources, and for issuing
warnings about threats ofterrorist attack. The unit is
also charged with evaluating weaknesses in the nation's
infrastructure and recommending ways to reduce vul
nerability to attacks. Abbr. IAIP.
information and belief, on. (1827) (Of an allegation or
assertion) based on secondhand information that the
declarant believes to be true. For the historical pre
cursor to this phrase, see INSINUATIO. [Cases: Federal
Civil Procedure Indictment and Information
~52(4); Pleading~68.]
information-disclosure statement. Patents. A document
submitted in the patent-application process in which
the inventor reveals all known relevant prior art during
the patentability search . The statement must disclose
all known patents, publications, and other references
of prior art. The U.S. Patent and Trademark Office
provides a form, "Information Disclosure Citation," for
this purpose. Abbr. IDS. -Also termed statement of
prior-art references. (Cases: Patents
information in equity. An equitable action brought by a
sovereign or a governmental unit to preserve or protect
the public interest through a public remedy . When
the action is to abate a nuisance that affects public
property, it is an equitable action for purpresture. See
PURPRESTURE. Cf. INFORMATION OF INTRUSION.
information letter. A written statement issued by the
Department of Labor -in particular, by the Pension
and Welfare Benefits Administration that calls
attention to a well-established interpretation or prin
850 information of intrusion
ciple ofERISA, without applying it to a specific factual
situation.
information of intrusion. Hist. A proceeding for
trespass upon real property owned or held by a sover
eign, such as a state or federal government . This was
a common-law remedy for purpresture. See PURPRES
TURE. Cf. INFORMATION IN EQUITY.
"In England it [an information of intrusion] is filed by the
king's attorney general for any trespass committed upon
the lands of the crown. It is founded on no writ under seal,
but merely on intimation of the king's officer who 'gives
the court to understand and be informed' of the matter
in question. 3 BI. Com. 261; Cro.Jac. 212. In America in
Massachusetts and Virginia -the remedy is resorted to
in case of an intrusion on escheated lands. Com. v. Andre.
20 Mass. (3 Pick.) 224; Com. v. Hite, 6 leigh (Va.) 588. Mas
sachusetts Gen. St. 141 authorizes information of intrusion
to be filed by the district attorney in case of any intrusion
upon lands held by the State in this county for the benefit
or use of any tribe of Indians or any individual thereof. or
any descendants of them." 10 The American and English
Encyciopedia of Law 711 n.l Uohn Houston Merrill et al.
eds., 1889) (s.v. information of intrusion).
"An information of intrusion, it may be added, was in the
nature of an action for trespass quare clausum fregit." R.E.
Megarry, A New Miscellany-ot-Law 141 (2005).
information return. See TAX RETURN.
Information Society Directive. Copyright. An initia
tive of the European Commission implementing the
standards set by the WIPO Copyright Treaty, setting
reproduction rights and establishing a "making-avail
able" right.
informative advertising. See ADVERTISING.
informed consent. See CONSENT (1).
informed intermediary. See INTERMEDIARY.
informer. (14c) 1. INFORMANT. 2. A private citizen who
brings a penal action to recover a penalty . Under
some statutes. a private citizen is required to sue the
offender for a penalty before any criminal liability can
attach. Also termed common informer. See COMMON
INFORMER. [Cases: Penalties (~:::J24.]
informer's privilege. See informant's privilege under
PRIVILEGE (3),
inforo (in for-oh), adv. [Latin] In a forum, court, or
tribunal; in the forum.
in foro conscientiae (in for-oh kon-shee-en-shee-ee),
adv. [Latin "in the forum ofconscience"] Privately or
morally rather than legally <this moral problem cannot
be dealt with by this court, but only in foro conscien
tiae>.
in foro contentioso (in for-oh k;}n-ten-shee-oh-soh), adv.
[Latin] Hist. In the forum of contention or litigation;
in a contested action. -Also termed in foro contra
dictorio.
"A decree is said to be granted in foro contentioso where
the action in which it is pronounced has been litigated, in foro ecclesiastico (in for-oh e-klee-z[h]ee-as-ti-koh),
adv. [Law Latin] In an ecclesiastical court.
inforo externo (in for-oh ek-slar-noh), adv. [Lat |
In an ecclesiastical court.
inforo externo (in for-oh ek-slar-noh), adv. [Latin "in an
external forum"] Eccles. law, In a court that is handling
a case pertaining to or affecting the corporate life ofthe
church. See FORUM EXTERNUM.
in foro humano (in for-oh hyoo-may-noh), adv. In a
human as opposed to a spiritual forum.
"[TJhis may be murder or manslaughter in the sight of God,
yet in foro humano it cannot come under the judgment of
felony ... :. 1 Hale p,c. 429.
inforo interno (in for-oh in-tar-noh), adv. [Latin "in an
internal forum"] Eccles. law. In a court ofconscience;
in a court for matters of conscience or the confessional.
See FORUM INTERNUM.
in foro saeculari (in for-oh sek-y;dair- I), adv, [Law
Latin] In a secular court,
infra (in-fr;}), adv. & adj. [Latin "below"] (I8c) Later in
this text . Infra is used as a citational signal to refer
to a later-cited authority. In medieval Latin, infra also
acquired the sense "within." Cf. INTRA; SUPRA.
infra aetatem (in-frd ee-tay-tdm), adj. [Latin]
Underage. -Also spelled infra etatem.
infra annos nubiles (in-fra an-ohs n[y]oo-b;}-leez), adj.
[Law Latin] Hist. Under marriageable years; i.e., not
old enough to wed.
infra annum (in-fr;} an-am), adv. [Law Latin] Under a
year; within a year.
infra annum luctus (in-fr;} an-;}m lak-tds), adt'o [Latin]
Hist. Within the year of mourning, -This referred to
the one-year period of mourning during which a widow
was prohibited from remarrying,
infra civitatem (in-fra siv-i-tay-tam), adv. [Law Latin]
Within the state.
infra corpus comitatus (in-fr;} kor-pds kom-;}-tay
t;}s), adv. & adj. [Law Latin] Hist. Within the body of
a county . In English law, this phrase referred to a
body of water that was completely enclosed by land,
and therefore exempt from admiralty jurisdiction, See
CORPUS COMITATUS.
infraction, n. (17c) A violation, usu. of a rule or local
ordinance and usu. not punishable by incarceration.
See VIOLATION (1). infract, vb.
civil infraction. An act or omission that, though not
a crime, is prohibited by law and is punishable. In
some states, many traffic violations are classified as
civil infractions,
infra dignitatem curiae (in-fr;} dig-ni-tay-tam kyoor-ee
ee), adj. [Law Latin "beneath the dignity ofthe court"]
(Of a case) too trifling in amount or character to be
entertained by a court.
infra furorem (in-fr;} fya-ror-dm), adv. [Law Latin]
and parties fully heard on the merits of the case. But it is During madness; while in a state ofinsanity.
not necessary that parties should be fully heard to make
the decree pronounced in the case a decree in foro." John infra hospitium (in-frd hah-spish-ee-am). [Law Latin
Trayner, Trayner's Latin Maxims 261 (4th ed, 1894). "within the inn"] The doctrine that an innkeeper is
851 infringement
liable for goods deposited by a guest. [Cases: Innkeep
ers(>l1.]
infra jurisdictionem (in-fr;) joor-is-dik-shee-oh-n;!m),
adv. & adj. [Law LatinJ Within the jurisdiction.
infra praesidia (in-fr;! pr;!-sid-ee-;!). [Latin "within
the defenses"] Rist. The international-law doctrine
that someone who captures goods will be considered
the owner ofthe goods if they are brought completely
within the captor's power . This term is a corruption of
the Roman-law term intra praesidia, which referred to
goods or persons taken by an enemy during war. Under
the principle ofpostliminium, the captured person's
rights or goods were restored to prewar status when the
captured person returned. See POSTLIMINIUM.
"In war, when those who are our enemies have captured
someone on our side and have taken him into their own
lines [intra praesidia]; for if during the same war he returns
he has postliminium, that is, all his rights are restored to
him just as if he had not been captured by the enemy."
Digest ofJustinian 49.15.5.1 (Pomponius, Quintus Mucius
37).
infrastructure. The underlying framework ofa system;
esp., public services and facilities (such as highways,
schools, bridges, sewers, and water systems) needed to
support commerce as well as economic and residential
development.
in fraudem creditorum (in fraw-d<lm kre-di-tor-;!m),
adv. [Latin] In fraud ofcreditors.
in fraudem legis (in fraw-d;!m lee-jis), adv. [Latin] In
fraud of the law . With an intent to evade the law.
infringement, n. (1861) Intellectual property. An act that
interferes with one of the exclusive rights of a patent,
copyright, or trademark owner. See INTELLECTUAL
PROPERTY. Cf. PLAGIARISM. infringe, vb.
contributory infringement.!. The act of participating
in, or contributing to, the infringing acts of another
person. The law imposes vicarious liability for con
tributory infringement. 2. Patents. The act of aiding
or abetting another person's patent infringement by
knowingly selling a nonstaple item that has no sub
stantial noninfringing use and is esp. adapted for
use in a patented combination or process. In the
patent context, contributory infringement is statu
torily defined in the Patent Act. 35 USCA 271(c).
[Cases: Patents C-'::)259.J 3. Copyright. The act of
either (1) actively inducing, causing, or materially
contributing to the infringing conduct of another
person, or (2) providing the goods or means neces
sary to help another person infringe (as by making
facilities available for an infringing performance) .
In the copyright context, contributory infringement
is a common-law doctrine. 4. Trademarks. A manu
facturer's or distributor's conduct in knOWingly sup
plying, for resale, goods bearing an infringing mark.
[Cases: Trademarks (>1566.J
copyright infringement. The act of violating any
of a copyright owner's exclusive rights granted by
the federal Copyright Act, 17 USCA 106,602.
A copyright owner has several exclusive rights in copyrighted works, including the rights (1) to repro
duce the work, (2) to prepare derivative works based
on the work, (3) to distribute copies of the work,
(4) for certain kinds of works, to perform the work
publicly, (5) for certain kinds ofworks, to display the
work publicly, (6) for sound recordings, to perform
the work publicly, and (7) to import into the United
States copies acquired elsewhere. [Cases: Copyrights
and Intellectual Property (::;'53.]
criminal infringement. The statutory criminal offense
ofeither (1) willfully infringing a copyright to obtain
a commercial advantage or financial gain (17 USCA
506; 18 USCA 2319), or (2) trafficking in goods
or services that bear a counterfeit mark (18 USCA
2320). Under the second category, the law imposes
criminal penalties if the counterfeit mark is (1) iden
tical with, or substantially indistinguishable from, a
mark registered on the Principal Register ofthe U.S.
Patent and Trademark Office, and (2) likely to confuse
or deceive the public. [Cases: Copyrights and Intellec
tual Property (;:::c:>70; Trademarks (;::::::c 1786, 1787.1
direct infringement. 1. Patents. The act of making,
using, selling, offering for sale, or importing into the
United States, without the patentee's permission, a
product that is covered by the claims ofa valid patent.
35 USCA 271(a). [Cases: Patents (>226.]2. Trade
marks. The use of a mark in trade when that use causes
a likelihood of confusion about the source of goods
or services already identified by a similar mark. 3.
Copyright. The unauthorized copying, distributing, or
displaying of -or the adapting of a derivative work
from - a copyrighted work. Cf. contributory infringe
ment; infringement in the inducement.
domain-name infringement. Infringement of another's
trademark or servicemark by the use of a confUSingly
similar Internet domain name. [Cases: Trademarks
(>1116, 1435.]
infringement by sale. Patents. The unauthorized sale,
resale, or offer of a possessory interest in a patented
invention. Also termed infringement through sale.
[Cases: Patents (>226.J
infringement in the inducement. Patents. The act of
actively and knOWingly aiding and abetting direct
infringement by another person . Although some
times used in copyright and trademark law to mean
contributory infringement, the term is usu. reserved
for the patent context. -Also termed inducing
infringement. Cf. direct infringement. [Cases: Patents
(;:~'259.J
innocent infringement. The act of Violating an intel
lectual-property right without knowledge or aware
ness that the act constitutes infringement . An
innocent infringer may, in limited circumstances,
escape liability for some or all ofthe damages. In the
copyright context, damages may be limited if (1) the
infringer was misled by the lack of a copyright notice
on an authorized copy of the copyrighted work, dis
tributed under the owner's authority before March
1989 (the effective date of the Berne Convention
852 infringement by sale
Implementation Act of 1988), and (2) the infring
ing act occurred before the infringer received actual
notice of the copyright. 17 USC A 405(b).ln the
trademark context, publishers and distributors of
paid advertisements who innocently infringe a mark
have no liability for damages. 15 USCA 1114. In
both contexts, the innocent infringer is immunized
only from an award of monetary damages, not from
injunctive relief. Cf. willful infringement. [Cases:
Copyrights and Intellectual Property C=>52.]
literal infringement. Patents. Infringement in which
every element and every limitation of a patent claim
is present, exactly, in the accused product or process.
Cf. DOCTRINE OF EQUIVALENTS. lCases: Patents
226.]
nonliteral infringement. See DOCTRINE OF EQUIVA
LENTS.
patent infringement. The unauthorized making, using,
offering to sell, selling, or importing into the United
States of any patented invention. 35 USCA 271{a).
[Cases: Patents
"In determining whether an accused device or composi
tion infringes a valid patent, resort must be had in the
first instance to the words of the claim. If accused matter
falls clearly within the claim, infringement is made out and
that is the end of it." Craver Tank & Mfg. Co. v. Linde Air
Prods. Co., 339 U.S. 605, 607, 70 S.Ct. 854, 855 (1950)
Uackson, J.).
trademark infringement. The unauthorized use of a
trademark -or of a confusingly similar name, word,
symbol, or any combination ofthese -in connection
with the same or related goods or services and in a
manner that is likely to cause confusion, deception,
or mistake about the source of the goods or services.
See LIKELIHOOD-OF-CONFUSION TEST. [Cases: Trade
marks C::> 1421.]
vicarious infringement. A person's liability for an
infringing act of someone else, even though the
person has not directly committed an act ofinfringe
ment. For example, a concert theater can be vicari
ously liable for an infringing performance ofa hired
band. [Cases: Patents C-:287(2).j
willful infringement. An intentional and deliber
ate infringement of another person's intellectual
property. Cf. innocent infringement. [Cases: Patents
C=>227.]
infringement by sale. See INFRINGEMENT.
infringement opinion. See OPINION (2).
infringement search. Patents. A patent search aimed
at discovering whether a product or method infringes
any in-force patent . An infringement search is usu.
limited to the political territory where the patent is to
be relied on. Also termed clear-ta-use search; free
dam-to-operate search; PTO search. Cf. PATE:'oITABILITY
SEARCH; VALIDITY SEARCH.
infringement test. Patents. A means of determining
whether a patent claim is dependent by asking if the
claim would always be infringed if the independent claim on which it rests were infringed . Since a depen
dent claim must incorporate all the elements of the
independent claim, an infringement of the independent
claim must also be an infringement of the dependent
claim. [Cases |
, an infringement of the independent
claim must also be an infringement of the dependent
claim. [Cases: Patents C=> 165(5).]
infringement through sale. See infringement by sale
under INFRINGEMENT.
infringer. (l6c) A person who interferes with one of
the exclusive rights of a patent, copyright, or trade
mark owner. See INFRINGEMENT. [Cases: Copyrights
and Intellectual Property (;=)77; Patents C~::>287(1);
Trademarks C=> 1564.]
in fructu (in frak-t[y]oo). [Latin] Hist. Among the fruit.
A bona fide possessor owned the fruits ofthe subject
possessed but not the subject itself because the subject
was not infructu. For example, a person who possessed
but did not own a goat was entitled to the goat's milk,
wool, and offspring, but not the goat's meat.
in full. Constituting the whole or complete amount
<payment in full>.
in fullUfe. (Of a person) alive in fact and in law; neither
naturally nor civilly dead.
in futuro (in fYd-tyoor-oh), adv. [Latin] In the future.
Cf. IN PRAESENTI.
in generali passagio (in jen-..-ray-h pd-say-jee-oh), adv.
[Law Latin] Hist. In the general passage (to the holy
land with a company of Crusaders). This type ofpil
grimage excused an absence from court during the
Crusades. Cf. SIMPLEX PASSAGIUM.
in genere (in jen-dr-ee). [Latin "in kind"] Belonging to
the same class, but not identical.
ingenuitas (in-jd-n[y]oo-d-tas), n. [Latin] Roman law.
The condition or status of a free-born person.
ingenuitas regni (in-ja-n[y]oo- ..-tas reg-nIl. [Law Latin]
Hist. The freemen, yeomanry, or commonalty of the
kingdom. This term was occasionally applied to the
nobility.
ingenuus (in-jen-yoo- ..s), n. [Latin] Roman law. A free
born person . This term, denoting freeborn persons,
was commonly opposed to libertini (people born into
slavery and later emancipated). Cf. LATINI IUNIANI;
SERVUS.
in globo (in gloh-boh), adv. [Latin "in a mass"] As an
undivided whole rather than separately <settlement
paid in globo to the three defendants>.
ingratitude, n. Civil law. Lack of appreciation for a
generous or kind act, esp. for a gift received . Under
Louisiana law, a gift may be reclaimed on grounds of
ingratitude if the recipient mistreats the giver by, for
example, attempting to murder the giver or refusing to
provide the giver with needed food. La. Civ. Code art.
1560. [Cases: Gifts
ingratus (in-gray-tds), adj. [Latin] Roman law. (Of a
person) ungrateful; (of conduct) marked by ingratitude.
Ungrateful acts or words (such as spiteful comments
853
from a freedman toward a former master) could form
the basis for a return to a prior inferior status.
in gremio juris (in gree-mee-oh joor-is), adv. & adj. [Law
Latin] Civil & Scots law. In the bosom of the right .
lhis phrase describes a clause formerly inserted in an
instrument to bind holders to its terms.
in gremio legis (in gree-mee-oh lee-jis), adv. & adj. [Law
Latin] In the bosom of the law . This is a figurative
expression for something that is under the protection
of the law, such as a land title that is in abeyance.
ingress (in-gres). (l5c) l.lne act of entering. 2. The right
or ability to enter; access. Cf. EGRESS.
ingress, egress, and regress. (17c) The right of a lessee to
enter, leave, and reenter the land in question.
ingress us (in-gres-Js). [Latin "ingress, entry"] Hist. The
fee paid by an heir to a feudal lord to enter the estate
ofa decedent.
in gross. 1. Undivided; still in one large mass. -Also
termed en gros; en grosse. 2. (Of a servitude) personal as
distinguished from appurtenant to land. See easement
in gross under EASEMENT.
ingross, vb. See ENGROSS.
ingrossator (in-groh-say-tJr). [Law Latin] Hist. An
engrosser; a clerk who writes records or instruments
on parchment. The Engrosser of the Great Roll, for
example, was known as the lngrossator Magni Rotuli.
See CLERK OF THE PIPE.
inhabit, vb. (l4c) To dwell in; to occupy permanently or
habitually as a residence.
in hac parte (in hak pahr-tee). [Latin] On this part or
side.
in haec verba (in heek v<lr-hJ). [Latin] In these same
words; verbatim.
in haereditate jacente (in hJ-red-i-tay-tee jJ-sen-tee).
[Latin] Rist. In the estate ofa person deceased.
inhaerere jurisdictioni (in-hi-reer-ee juur-is-dik-shee
oh-m). [Latin] Civil law. To be necessarily connected
with jurisdiction . The phrase typically referred to a
judge's inherent powers, such as the power to inflict
punishment or to enforce a judgment.
inhere (in-heer), vb. (15c) To exist as a permanent, insep
arable, or essential attribute or quality ofa thing; to be
intrinsic to something.
inherency doctrine. Patents. The rule that anticipation
can be inferred despite a missing element in a prior-art
reference if the missing element is either necessarily
present in or a natural result ofthe product or process
and a person of ordinary skill in the art would know
it. On one hand, the doctrine precludes patenting
an existing invention by merely claiming an inherent
element. On the other hand, it allows the later patent
ability ofa substance, usu. a chemical compound, that
was inadvertently created but not recognized or appre
ciated. See INHERENT ANTICIPATION. [Cases: Patents
(;:::>65.] inheritance
inherent anticipation. Patents. An invention's lack of
novelty arising from the existence of prior-art products
or processes that necessarily possess the same charac
teristics. Inherency differs from obviousness in that
a lack of novelty must be based on fact, not mere pos
sibility or probability. See DOCTRINE OF INHERENCY.
[Cases: Patents (;:::>65.]
inherent authority. See AUTHORITY (1).
inherent condition. See CONDITION (2).
inherent covenant. See COVENANT (1).
inherent defect. See hidden defect under DEFECT.
inherently dangerous. See DANGEROUS.
inherently dangerous activity. An activity that can be
carried out only by the exercise of special skill and care
and that involves a grave risk of serious harm if done
unskillfully or carelessly.
inherently dangerous work. See WORK (1).
inhereut power. See POWER (3).
inherent-powers doctrine. 'The principle that allows
courts to deal with diverse matters over which they
are thought to have intrinsic authority, such as (1)
procedural rulemaking, (2) internal budgeting of
the courts, (3) regulating the practice oflaw; and (4)
general judicial housekeeping . The power is based on
interpretations ofart. I, 8, cl. 18 of the Constitution.
[Cases: Courts C-~1.]
inherent right. See inalienable right under RIGHT.
inherit, vb. (l4c) 1. To receive (property) from an
ancestor under the laws of intestate succession upon
the ancestor's death. [Cases: Descent and Distribution
2. To receive (property) as a bequest or devise.
inheritable, adj. See HERITABLE.
inheritable blood. See heritable blood under BLOOD.
inheritable obligation. See heritable obligation under
OBLIGATION.
inheritable security. See heritable security under
SECURITY.
inheritance. (14c) L Property received from an ancestor
under the laws of intestacy. [Cases: Descent and Distri
bution 1, 8.] 2. Property that a person receives by
bequest or devise.
dual inheritance. An adopted child's intestate inheri
tance through both his adopted family and his natural
parent. _ The problem of dual inheritance occurs only
if a relative of the birth parent adopts the child. For
instance, if a child's mother dies and the maternal
grandparents adopt the grandchild, and if a grand
parent then dies intestate, the child qualifies for two
separate shares -one as a child and the other as a
grandchild. In some jurisdictions, by statute, such a
child is allowed to inherit only the adopted child's
share. Under the Uniform Probate Code, the child
takes the larger of the two shares. [Cases: Adoption
(;:::>21.
854 inheritance tax
several inheritance. An inheritance that descends to
two persons severally, as by moieties.
shifting inheritance. Under intestacy laws, an inheri
tance that is transferred from an heir who was living
when the intestate died to an afterborn heir who is
more closely related to the intestate. [Cases; Descent
and Distribution
universal inheritance. A system by which an intes
tate's estate escheats to the state only if the decedent
leaves no surviving relatives, no matter how distant.
Universal inheritance has been almost universally
abandoned in Anglo-American jurisdictions. See
UNIVERSAl.-INHERITANCE RUl.E.
inheritance tax. See TAX.
inheritor (in-hair-i-tar), n. (ISc) A person who inherits;
HEIR.
inheritrix (in-hair-i-triks), n. Archaic. A female heir;
HEIRESS.
inhibition (in-hi-bish-an), n. 1. Eccles. law. A writ issued
by a superior ecclesiastical court, forbidding a judge
from proceeding in a pending case. 2. Eccles. law. An
order issuing from an ecclesiastical court, prohibiting
a member of the clergy from taking office or perform
ing an unlawful action. 3. Hist. A writ of prohibition.
4. Scots law. An order issued by the Court ofSession to
prohibit a debtor from encumbering or alienating the
debtor's heritable property to the prejudice ofa creditor.
See EX CAPITE INHlBITIONIS; (in senses 3 & 4) PROHI
BITION (2).
in hoc (in hok), adv. [Latin] In this; in respect to this.
in hoc statu (in hok stay-t[yJoo). [Latin] Hist. In this
position.
inhonestus (in-h;;-nes-t;;s), adj. [Latin] Roman law. 1.
(Of a person) of ill repute. 2. (Of conduct) morally
shameful.
in-house counsel. See COUNSEl..
inhuman treatment. Family law. Physical or mental
cruelty so severe that it endangers life or health.
Inhuman treatment is usu. grounds for divorce. See
CRUEl.TY. [Cases: Divorce (;:=>27(1,3).]
in hypothesi (in hi-pahth-<l-SI). [Latin] Hist. In a
supposed case; in a hypothetical case. Cf. IN THESI.
in iisdem terminis (in ee-Is-dem t;}r-m<l-nis), adv. [Law
Latin] Hist. In the same terms.
inimicitia capitalis (i-nim-;;-sish-ee-;; kap-i-tay-lis).
[Latin] Hist. Deadly enmity.
in individuo (in in-di-vid-yoo-oh), adv. [Law Latin]
In the distinct, identical, or individual form. See IN
SPECIE.
in infinitum (in in-f<l-nH<lm). [Latin "in infinity"] To
infinity. This phrase was in reference to a line ofsuc
cession that is indefinite.
in initialibus (in i-nish-ee-al-a-bas). [Law Latin] Hist. In
the preliminary stage . The phrase appeared in refer
ence to the point in the examination when the initialia testimonii took place to determine the witness's compe
tence to testify. See INITIALIA TESTIMONII.
in initio (in i-nish-ee-oh). [Latin "in the beginning"] At
the beginning or outset. Cf. AB INITIO.
in initio litis (in i-nish-ee-oh lI-tis). [Latin] Hist. In the
beginning ofthe suit. Many defenses had to be raised
at this stage ofa case.
in integrum (in in-teg-rdm). [Latin] Hist. Entire; wholly
undamaged.
in invitum (in in-vI-tam). [Latin] Against an unwilling
person <the nonparty appealed after being compelled
to participate in the proceedings in invitum>. Cf. AB
INVITO.
in ipso termino (in ip-soh t;}r-mi-noh). [Latin] Hist.
At the very end; on the last day, as of a prescriptive
period.
initial appearance. See APPEARANCE.
initial cause. See proximate cause under CAUSE (1).
initial determination. See DETERMINATION.
initial disclosure. See DISCLOSURE (2).
initialia testimonii (i-nish-ee-ay-Iee-a tes-ta-moh-nee-I).
[Law Latin "initial parts of testimony"] Scots law. The
preliminary examination ofa w.itness in order to deter
mine the witness's competence to testify. Cf. IN INI
TIAUBUS.
initial margin requirement. See MARGIN REQUIRE
MENT.
initial protest |
f. IN INI
TIAUBUS.
initial margin requirement. See MARGIN REQUIRE
MENT.
initial protest. See PROTEST (2).
initial public offering. See OFFERING.
initial surplus. See SURPLUS.
initiation ofcharges. Military law. The first report to the
proper military authority of an alleged commission of
an offense by a person subject to the Uniform Code of
Military Justice. Cf. PREFERRING OF CHARGES. [Cases;
Military Justice C=:>9S0.]
initiative (i-nish-d-tiv or i-nish-ee-;;-tiv). (1889) An
electoral process by which a percentage of voters can
propose legislation and compel a vote on it by the
legislature or by the full electorate . Recognized in
some state constitutions, the initiative is one of the
few methods of direct democracy in an otherwise
representative system. Cf. Pl.EBISCITE; REFERENDUM.
[Cases; Municipal Corporations C=:> 108; Statutes
301-327.]
in itinere (in I-tin-<lr-ee), adv. [Latin] Hist. On a journey;
on the way . This term referred to the justices in eyre
(justices in itinere) and to goods en route to a buyer. See
EYRE; IN TRANSITU.
initium possession is (i-nish-ee-;;m p;;-zes[hl-ee-oh-nis).
[Latin "the beginning ofthe possession"] Hist.The right
by which possession was first held.
injoin, vb. Archaic. See ENJOIN.
in judicio (in joo-dish-ee-oh), adv. & adj. [Latin]
Before the judge . The phrase is still sometimes used.
855 in jure proprio
Originally, in Roman law, in judicia referred to the
second stage ofa Roman formulary trial, held before a
private judge known as a judex. -Also termed apud
judicem. See FORMULA (1). Cf. IN JURE (2).
in judicio possessorio (in joo-dish-ee-oh pah-ses-sor-ee
oh). [Law Latin] Hist. In a possessory action.
injunction (in-j3ngk-sh.m), n. (16c) A court order
commanding or preventing an action. -To get an
injunction, the complainant must show that there is
no plain, adequate, and complete remedy at law and
that an irreparable injury will result unless the relief is
granted. -Also termed writ ofinjunction. See IRREP
ARABLE-INJURY RULE. [Cases: Injunction C;:::" 1.1
"In a general sense, every order of a court which commands
or forbids is an injunction; but in its accepted legal sense,
an injunction is ajudicial process or mandate operating in
personam by which, upon certain established principles
of equity, a party is required to do or refrain from doing
a particular thing. An injunction has also been defined as
a writ framed according to the circumstances of the case,
commanding an act which the court regards as essential
to justice, or restraining an act which it esteems contrary
to equity and good conscience; as a remedial writ which
courts issue for the purpose of enforcing their equity juris
diction; and as a writ issuing by the order and under the
seal of a court of equity." 1 Howard C. Joyce. A Treatise on
the Law Relating to Injunctions 1, at 2-3 (1909).
affirmative injunction. See mandatory injunction.
antisuit injunction. An injunction prohibiting a
litigant from instituting other, related litigation, usu.
between the same parties on the same issues. [Cases:
Injunction C:=>33.]
ex parte injunction. (1854) A preliminary injunction
issued after the court has heard from only the moving
party. -Also termed temporary restraining order.
final injunction. See permanent injunction.
head-start injunction. Trade secrets. An injunction
prohibiting the defendant from using a trade secret
for a period of time equal to the time between the
date of the secret's theft and the date when the secret
became public. _ So named since that period is the
"head start" the defendant unfairly gained over
the rest of the industry. [Cases: Injunction C:=> 56,
138.33.]
injunction pendente lite. See preliminary injunction.
interlocutory injunction. See preliminary injunction.
mandatory injunction. (1843) An injunction that
orders an affirmative act or mandates a specified
course of conduct. -Also termed affirmative injunc
tion. Cf. prohibitory injunction. [Cases: Injunction
133.]
permanent injunction. (1846) An injunction granted
after a final hearing on the merits. _ Despite its name,
a permanent injunction does not necessarily last
forever. -Also termed perpetual injunction; final
injunction. [Cases: Injunction
perpetual injunction. See permanent injunction.
preliminary injunction. (1828) A temporary injunction
issued before or during trial to prevent an irreparable injury from occurring before the court has a chance
to decide the case. - A preliminary injunction will be
issued only after the defendant receives notice and an
opportunity to be heard. Also termed interlocutory
injunction; temporary injunction; provisional injunc
tion; injunction pendente lite. Cf. ex parte injunction;
TEMPORARY RESTRAINING ORDER. [Cases: Injunction
C:=>132.]
preventive injunction. (1882) An injunction designed
to prevent a loss or injury in the future. Cf. repara
tive injunction.
prohibitory injunction. (1843) An injunction that
forbids or restrains an act. -This is the most common
type ofinjunction. Cf. mandatory injunction.
provisional injunction. See preliminary injunction.
quia-timet injunction (kWI -;, tI-m;,t or kwee-;, tim-etl.
[Latin "because he fears") (1913) An injunction
granted to prevent an action that has been threat
ened but has not yet violated the plaintiff's rights. See
QUIA TIMET.
reparative injunction (ri-par-;;J-tiv). (1955) An injunc
tion requiring the defendant to restore the plaintiff
to the position that the plaintiff occupied before the
defendant committed a wrong. Cf. preventive injunc
tion.
special injunction. Hist. An injunction in which the
prohibition of an act is the only relief ultimately
sought, as in prevention ofwaste or nuisance.
temporary injunction. See preliminary injunction.
injunction bond. See BOND (2).
injunctive, adj. (I5c) That has the quality of directing
or ordering; of or relating to an injunction. -Also
termed injunctional.
in jure (in joor-ee). [Latin "in law"] 1. According to the
law. 2. Roman law. Before the praetor or other magis
trate. _ In jure referred to the first stage of a Roman
formulary trial, held before the praetor or other judicial
magistrate for the purpose of establishing the legal
issues and their competence. Evidence was taken in
the second stage, which was held before a judex. See
FORMULA (1). Cf. DI JUDICIO.
in jure alterius (in joor-ee al-teer-ee-;,s), adv. [Latin] In
another's right.
in jure cessio (in joor-ee sesh-ee-oh). [Latin "a surrender
in law"] Roman law. A fictitious trial held to transfer
ownership of property; a collusive claim to formally
convey property, esp. incorporeal property, by a court's
aSSignment of ownership. _ At trial, the transferee
appeared before a praetor and asserted ownership of
the property. The actual owner also appeared, but did
not contest the assertion, and so allowed the transfer
of the property to the plaintiff. In jure cessio was most
often used to convey incorporeal property. Also
spelled in iure cessio.
in jure proprio (in joor-ee proh-pree-oh), adv. [Latin]
In one's own right.
injuria 856
injuria (in-joor-ee-<J), n. [Latin) Roman law. 1. See i unexpectedly, and not according to the usual order
WRONG. Cf. DAMNUM INJURIA DATUM; actio injuriarum
under ACTIO. 2. An assault on a person's reputation or
body. PI. injuriae (in-joor-ee-ee).
"By injuria (or outrage), as the fourth ground of delict
obligation, is meant some affronting wrong, calculated to
wound the self-respect and touch the honor of the person
injured, to humiliate or degrade him in the view of others."
James Hadley, Introduction to Roman Law 243 (N.Y., D.
Appleton & Co. 1881).
"The term injuria [is best) used in its original and proper
sense of wrong (in jus, contrary to law). The modern use
of 'injury' as a synonym for damage is unfortunate but
inveterate." R.F.V, Heuston, Salmond on the Law of Torts
13 nn,51-52 (17th ed, 1977),
injuria absque damno (in-joor-ee-<J abs-kwee dam-noh).
[Latin "injury without damage"] A legal wrong that will
not sustain a lawsuit because no harm resulted from
it. -Also termed injuria sine damno. Cf. DAMNUM
SINE INJURIA.
"Just as there are cases in which damage is not actionable
as a tort (damnum sine injuria), so conversely there are
cases in which behaviour is actionable as a tort, although it
has been the cause of no damage at all (injuria sine damno).
Torts are of two kinds -namely, those which are action
able per se, and those which are actionable only on proof
of actual damage resulting from them. Thus the act of
trespassing upon another's land is actionable even though
it has done the plaintiff not the slightest harm. Similarly, a
libel is actionable per se, while slander (that is to say, oral
as opposed to written defamation) is in most cases not
actionable without proof of actual damage." R.F.V. Heuston,
Salmond on the Law of Tons 14 (17th ed. 1977).
injurious, adj. (lSc) Harmful; tending to injure.
injurious exposure. Workers' compensation. Contact
with a substance that would cause injury if the person
were repeatedly exposed to it over time . An employer
may be found liable for harm resulting from injurious
exposure. [Cases: Workers' Compensation <:::==-201,517,
1074.]
injurious falsehood. L See DISPARAGEMENT (3). 2. See
TRADE DISPARAGEMENT.
injurious words. Louisiana law. Slanderous or libelous
language. See SLANDER; LIBEL (1), (2).
injury, n. (14c) L The violation of another's legal right,
for which the law provides a remedy; a wrong or injus
tice. See WRONG. 2. Scots law. Anything said or done in
breach ofa duty not to do it, ifharm results to another
in person, character, or property . Injuries are divided
into real injuries (such as wounding) and verbal injuries
(such as slander). They may be criminal wrongs (as
with assault) or civil wrongs (as with defamation). 3.
Any harm or damage . Some authorities distinguish
harm from injury, holding that while harm denotes any
personal loss or detriment, injury involves an action
able invasion ofa legally protected interest. See Restate
ment (Second) ofTorts 7, cmt. a (1965). [Cases: Torts
~~117.) -injure, vb. injurious, adj.
accidental injury. (1800) An injury resulting from
external, violent, and unanticipated causes; esp.,
a bodily injury caused by some external force or
agency operating contrary to a person's intentions, ofevents. [Cases: Insurance (::::>2590.]
advertising injury. Harm resulting from (1) oral or
written speech that slanders or libels a person, or dis
parages a person's goods, products, or services; (2)
oral or written speech that violates a person's right of
privacy; (3) misappropriation of advertising ideas or
style of doing business; or (4) infringement of copy
right, esp. in a name or slogan. [Cases: Insurance (::::>'
2297.]
bodily injury. (l6c) Physical damage to a person's
body. -Also termed physical injury. See serious
bodily injury. [Cases: Damages C='30, 32; Insurance
<:::==-2276.)
civil injury. (I7c) Physical harm or property damage
caused by breach ofa contract or by a criminal offense
redressable through a civil action.
compensable injury (kdm-pen-sd-b<ll). Workers' com
pensation. An injury caused by an accident arising
from the employment and in the course ofthe employ
ee's work, and for which the employee is statutorily
entitled to receive compensation. [Cases: Workers'
Compensation <:::==-Sll-770.)
consequential injury. See consequential loss under
LOSS.
continual injury. An injury that recurs at repeated
intervals. Also termed (but improperly) continu
ous injury.
continuing injury. (1824) An injury that is still in the
process of being committed. An example is the
constant smoke or noise of a factory. -Also termed
continuing harm. (Cases: Damages (::::> 110.]
direct injury. (l7c) 1. An injury resulting directly
from violation of a legal right. 2. An injury resulting
directly from a particular cause, without any inter
vening causes. [Cases: Damages C~16.]
great bodily injury. See serious bodily injury.
|
vening causes. [Cases: Damages C~16.]
great bodily injury. See serious bodily injury.
injury in fact. (1809) An actual or imminent invasion
of a legally protected interest, in contrast to an
invasion that is conjectural or hypothetical. An
injury in fact gives the victim standing to bring an
action for damages. lCases: Federal Civil Procedure
<:::==-103.2.]
irreparable injury (i-rep-<Jr<J-bdl). (17c) An injury
that cannot be adequately measured or compensated
by money and is therefore often considered remedi
able by injunction. Also termed irreparable harm;
nonpecuniary injury. See IRREPARABLE-INJURY RULE.
[Cases: Injunction <:::==-14, 138.6.]
''The term 'irreparable injury,' however, is not to be taken
in its strict literal sense. The rule does not require that the
threatened injury should be one not physically capable
of being repaired, If the threatened injury would be sub
stantial and serious one not easily to be estimated, or
repaired by money and if the loss or inconvenience to
the plaintiff if the injunction should be refused (his title
proving good) would be much greater than any which can
be suffered by the defendant through the granting of the
injunction, although his title ultimately prevails, the case is
857
one of such probable great or 'irreparable' damage as will
justify a preliminary injunction." Elias Merwin, Principles
of Equity and Equity Pleading 426-27 (H.C. Merwin ed.,
1896).
legal injury. (18c) Violation ofa legal right.
malicious injury. (16c) 1. An injury resulting from a
willful act committed with knowledge that it is likely
to injure another or with reckless disregard of the
consequences. 2. MALICIOUS MISCHIEF.
nonpecuniary injury. See irreparable injury.
pecuniary injury. An injury that can be adequately
measured or compensated by money.
permanent injury. (17c) 1. A completed wrong whose
consequences cannot be remedied for an indefinite
period. 2. Property. A lasting injury to land that
causes it to revert to the grantor or vests immediate
right of possession in a remainderman. Cf. tempo~
rary injury.
personal injury. (l6c) Torts. 1. In a negligence action,
any harm caused to a person, such as a broken bone,
a cut, or a bruise; bodily injury. 2. Any invasion of a
personal right, including mental suffering and false
imprisonment. Also termed private injury. [Cases:
Insurance ~'-:;)2306.] 3. For purposes of workers'
compensation, any harm (including a worsened pre~
existing condition) that arises in the scope ofemploy
ment. -Abbr. PI. [Cases: Workers' Compensation
<:'::=>552-566,604-770.]
physical injury. See bodily injury.
private injury. See personal irljury (2).
public injury. A loss or an injury stemming from a
breach ofa duty or violation ofa right that affects the
community as a whole.
reparable injury (rep-ar-a-bal). (1832) An injury that
can be adequately compensated by money.
scheduled injury. A partially disabling injury for which
a predetermined amount of compensation is allowed
under a workers' ~compensation statute. [Cases:
Workers' Compensation C~869-902.]
serious bodily injury. (1843) Serious physical impair
ment of the human body; esp., bodily injury that
creates a substantial risk of death or that causes
serious, permanent disfigurement or protracted loss
or impairment of the function of any body part or
organ. Model Penal Code 210.0(3). Typically, the
fact-finder must decide in any given case whether
the injury meets this general standard. Generally, an
injury meets this standard if it creates a substantial
risk of fatal consequences or, when inflicted, con
stitutes mayhem. Cf. MAYHEM (1). -Also termed
serious bodily harm; grievous bodily harm; great bodily
injury. [Cases: Homicide Assault and Battery
<:'::=>55.]
temporary injury. An injury that may be abated or
discontinued at any time by either the injured party
or the wrongdoer. Cf. permanent injury. [Cases:
Damages <:.::=> 109.] inlaw
willful and malicious injury. Bankruptcy. Under the
statutory exception to discharge, damage to another
entity (such as a creditor) caused by a debtor inten
tionally performing a wrongful act -without just
cause or excuse that the debtor knew was certain
or substantially certain to cause injury. 11 USCA
523(a)(6). [Cases: BankruptcyG-~3374.]
injury-in-fact trigger. See ACTUAL-INTURY TRIGGER.
injustice. (15c) l. An unjust state of affairs; unfairness.
2. An unjust act.
in jus vocare (in jas voh-kair~ee), vb. [Latin] Roman law.
To summon a defendant to court.
in kind, adv. (17c) 1. In goods or services rather than
money <payment in cash or in kind>. 2. In a similar
way; with an equivalent of what has been offered or
received <returned the favor in kind>. -in-kind, adj.
<in-kind repayment>.
INL. abbr. BUREAU OF I:NTERNATIONAL NARCOTICS AND
LAW ENFORCEMENT.
inlagare (in~la-gair-ee), vb. [Law Latin] Hist. To
restore (an outlaw) to the protection of the law. Cf.
UTLAGARE.
inlagation (in-la-gay-shall), n. [Law Latin] Hist. The
act of restoring an outlaw to the protection of the law;
inlawry. Cf. UTLAGATION.
inlagh (in-law). Hist. A person within the protection of
the law, in contrast to an outlaw. Cf, UTLAGH.
inland. (15c) 1. The interior part ofa country or region,
away from the coast or border. 2. Hist. The portion of
a feudal estate lying closest to the lord's manor and
dedicated to the support of the lord's family. -Also
termed (in sense 2) inlantal. Cf. UTLAND.
inland bill ofexchange. See domestic bill (2) under BILL
(6).
inland draft. See DRAFT.
inland marine insurance. See INSURANCE.
inland revenue. See I:NTERNAL REVENUE.
inland trade. See TRADE.
inland waters. See INTERNAL WATERS.
inlantal (in-Ian-tal). Hist. See INLAND (2). -Also spelled
inlantale.
in law. (15c) Existing in law or by force oflaw; in the
contemplation ofthe law. Cf. IN FACT.
in-law, n. (1894) A relative by marriage.
inlaw, vb. Archaic. To place (an offender) under the pro
tection of the law. Cf. OUTLAW (1).
'The outlaw's life is insecure .... If the king inlaws him,
he comes back into the world like a new-born babe, quasi
modo genius, capable indeed of acquiring new rights,
but unable to assert any of those that he had before his
outlawry. An annihilation of the outlawry would have a
different operation, but the inlawed outlaw is not the old
person restored to legal life; he is a new person." 1 Freder
ick Pollock & Frederic William Maitland, History of English
Law Before the Time of Edward 1477 (2d ed. 1898),
inlawry 858
inlawry. The restoration of an outlawed person's rights
and protections under the law. See INLAGATION.
in lecto aegritudinis (in lek-toh ee-gri-t[y]oo-di-nis).
[Law Latin] Scots law. On a bed of sickness. -1he
phrase appeared in reference either to the deathbed or
to periods of illness that excused a person from fulfill
ing an obligation. See LIEGE POUSTI.
in lecto mortali (in lek-toh mor-tay-lr), adv. &adj. [Latin]
On the deathbed.
in legal custody. See IN CUSTODIA LEGIS.
in liberam baroniam (in Iib-;)f-;)m bd-roh-nee-;)m). [Law
Latin] Hist. Into a free barony.
"In former times, many persons holding certain feudal
rights from the Crown were called barons, but in the strict
legal sense, the title was only due to him whose lands
had been erected or confirmed by the king in liberam
baroniam. The advantages conferred by the right of barony
were considerable. Such a right conferred on the baron
both civil and criminal jurisdiction within his barony; and
under the clause of union contained in his charter, he was
enabled to take infeftment in the whole lands and rights
of the barony in, what was at that time, an easy and inex,
pensive mode." John Trayner, Trayner's Latin Maxims 264
(4th ed. 1894).
in liberam elemosinam (in lib-dr-;)m el-d-md-SI-n;)m).
[Latin "in free alms"] Hist. Land given away for a chari
table purpose; land given away to be held in frankal
moin. -Also spelled in liberam eleemosinam. Also
termed in libera elemosina. See FRANKALMOIN.
in liberam regalitatem (in lib-;)r-;)m ri-gal-;)-tay-t;)m).
[Law Latin] Hist. Into a free regality. -The phrase
appeared in reference to feudal land grants that were
made by the Crown and that gave the grantees jurisdic
tion over criminal and civil matters in their territory
equivalent to that ofthe Crown.
in libero sochagio (in lib-;)r-oh s;)-kay-jee-oh), adv. [Law
Latin] In free socage. See SOCAGE.
in lieu of. (Be) Instead ofor in place of; in exchange or
return for <the creditor took a note in lieu ofcash> <the
defendant was released in lieu of$5,000 bond>.
in lieu tax. See TAX.
in limine (in lim-a-nee), adv. [Latin "at the outset"] (lSc)
Preliminarily; presented to only the judge, before or
during trial <a question to be decided in limine>. See
MOTION IN LIMINE. [Cases: Criminal Law (:=:>632(4);
Federal Civil Procedure (>927.5; Pretrial Procedure
in-limine, adj. (Of a motion or order) raised prelimi
narily, esp. because of an issue about the admissibility
of evidence believed by the movant to be prejudicial
<in-limine motion>.
in linea recta {in lin-ee-;) rek-ta), [Latin] Hist. In the
direct line (of succession).
in litem (in h-tem or -tam), adv. [Latin] For a suit; to the
suit. See AD LITEM.
in loco (in loh-koh). [Latin] In the place of.
in loco parentis (in loh-koh pa-ren-tis), adv. &adj. [Latin
"in the place of a parent"] (1818) Of, relating to, or acting as a temporary guardian or caretaker of a child,
taking on all or some ofthe responsibilities ofa parent.
-The Supreme Court has recognized that during the
school day, a teacher or administrator may act in loco
parentis. See Vernonia Sch. Dist. v. Acton, 515 U.S. 646,
115 S.Ct. 2386 (1995). See PERSON IN LOCO PARENTIS.
[Cases: Child Custody Child Support G= 31;
Parent and Child (:=:> 15.]
in loco parentis, n. Supervision of a young adult by
an administrative body such as a university. [Cases:
Schools (:=:> 169.]
in lucro captando (in loo-kroh kap-tan-doh). [Latin]
Hist. In endeavoring to gain an advantage.
in majorem cautelam (in md-jor-;)m kaw-tee-I;)m), adv.
[Latin] Hist. For a greater security.
in majorem evidentiam (in m;)-jor-;)m ev-;)-den
shee-am). [Law Latin] Hist. For more certain proof;
for more sure evidence.
in mala fide (in mal-;) fI-dee). [Latin] Hist. In bad
faith.
"A possessor in mala fide is one who holds possession of
a subject, in the know/edge that it is not his own, on a title
which he knows, or has reasonable ground for believing
to be a bad one." John Trayner, Trayner's Latin Maxims 266
(4th ed. 1894).
in mancipio (in man-sip-ee-oh), adj. [Latin] Roman law.
In a state ofcivil bondage . This status applied to a son
whose father was sued in a noxal action and settled the
claim by handing over his son. See NOXAL ACTION (I).
in manu mortua. See IN MORTUA MANU.
in-marriage. See MARRIAGE (1).
inmate. (16c) 1. A person confined in a prison, hospital,
or similar institution. [Cases: Prisons 110.] 2.
Archaic. A person living inside a place; one who lives
with others in a dwelling.
in medias res (in mee-dee-;)s reez or in me-dee-ahs rays),
adv. [Latin1Into the middle of things; without preface
or introduction.
in medio (in mee-dee-oh). [Law Latin] Scots law. In the
middle; intermediate |
introduction.
in medio (in mee-dee-oh). [Law Latin] Scots law. In the
middle; intermediate . The phrase appeared in refer
ence to a fund in controversy.
in meditatione fugae (in med-i-tay-shee-oh-nee fry]
oo-jee). [Law Latin] Scots law. Meditating flight; con
templating leaving the country. Formerly, a debtor
could be detained under a fugae warrant if the debtor
had sufficient debt to warrant imprisonment, and ifthe
debtor was attempting to leave the country. This type
of warrant became obsolete when imprisonment for
debt was abolished.
in mercy, adv. (l7c) At a judge's discretion concern
ing punishment. _ A judgment formerly noted (using
the Law Latin phrase in misericordia) which litigant
lost by stating that the unsuccessful party was in the
court's mercy. A plaintiffheld in mercy for a false claim,
for example, was said to be in misericordia pro falso
clamore suo.
859
in misericordia (in miz-a-ri-kor-dee-d). [Law LatinJ See
IN MERCY.
in mitiori sensu (in mish-ee-or-I sens-[y]oo), adv. [Law
Latin] In a milder or more favorable sense . This
phrase appeared as part of the former rule applied in
slander actions. A word capable oftwo meanings would
be given the one more favorable to the defendant. Cf.
INNOCENT-CONSTRUCTION RULE. [Cases; Libel and
Slander C:::> 19.J
'Within half a century of its first appearance, the action for
words had become part of the everyday bUSiness of the
common-law courts, in particular the King's Bench. In the
early days there were often more slander cases in the rolls
than assumpsit . ... Thejudges apparently came to regret
this aspect of their increased jurisdiction, especially since
juries frequently awarded sums of money quite dispropor
tionate to the harm and to the ability of the wrongdoer to
pay .... [Tlhe principal effect of the judicial reaction was
that a spirit of repression began to manifest itself ....
The ... most effective attack was launched in the 15705,
when the courts began the policy of construing ambiguous
or doubtful words in the milder sense (in mitiori sensu) so
that they would not be actionable." J.H. Baker, An Introduc
tion to English Legal History 500-01 (3d ed. 1990).
in modum adminiculi (in moh-dam ad-mi-nik-y;:!-lI).
[Law Latin] Hist. As corroborating evidence.
in modum assisae (in moh-ddm d-sl-zee), adv. [Law
Latin] In the manner or form ofan assize. See ASSIZE.
in modumjuratae (in moh-ddm juu-ray-tee), adv. [Law
Latin] In the manner or form ofa jury.
in modum poenae (in moh-ddm pee-nee). [Latin] Hist.
By way ofpenalty. The phrase appeared in reference
to the basis for charging interest.
in modum probationis (in moh-ddm proh-bay-shee-oh
nis). [Latin] Hist. In the form of proof. _1he phrase
appeared in reference to documents that a party
provided to support a claim.
in modum simplicis querelae (in moh-ddm sim-pl<l-sis
kW<l-ree-Iee). [Law Latin] Hist. By way of summary
complaint.
in mora (in mor-d), adv. & adj. (Latin] Roman law.
In delay; in default. _ This was said of a debtor who
delayed performance or failed to perform.
in mortua manu (in mor-choo-a man-yoo), adj. & adv.
[Law Latin "in a dead hand"] Hist. (Of property) per
petually controlled according to a decedent's directions.
Land held by a religious society was described this
way because the church could hold property perpetu
ally without rendering feudal service. Also termed in
manu mortua. See DEADHAND CONTROL; MORTMAIN.
in mundo (in man-doh or muun-doh). [Law Latin "in
the world"] Hist. In a clean, fair copy.
"Papers written 'in mundo: are what are usually termed
extended, or dean copies." John Trayner, Trayner's Latin
Maxims 268 (4th ed. 1894).
innavigable (in-nav-i-g<l-bdl), adj. 1. (Of a body ofwater)
not capable of, or unsuitable for, navigation. [Cases;
Navigable Waters L] 2. Marine insurance. (Of a
vessel) unfit for service. -Also termed unnavigable. innocence
inner bar. English law. The group of senior barristers,
called the Queen's Counselor King's Counsel, who
are admitted to plead within the bar of the court. Cf.
OUTER BAR.
inner barrister. See BARRISTER.
inner cabinet. See CABINET.
inner-city post-traumatk-stress defense. See URBAN
SURVIVAL SYNDROME.
Inner House. Scots law. The appellate jurisdiction ofthe
Court of Session. See COURT OF SESSION (1).
inning. (pl.) Land reclaimed from the sea.
innkeeper. (I5c) A person who, for compensation. keeps
open a public house for the lodging and entertainment
oftravelers. A keeper ofa boarding house is usu. not
considered an innkeeper. -Also termed hotelkeeper.
[Cases; Innkeepers (;::)3.]
''The innkeeper is the person who on his own account
carries on the business of an inn. In other words, he is
the proprietor of the establishment. The person actually
employed as manager, though he has the whole direction
of the enterprise, is not an innkeeper if he is acting on
behalf of someone else. Thus the salaried manager of
a hotel owned or operated by a corporation is not held
responsible as an innkeeper; the corporation is the inn
keeper." John H. Sherry, The Laws of Innkeepers 2.6, at
15 (rev. ed. 1981).
innkeeper's lien. See hotelkeeper's lien under LIEN.
innocence, n. (I4c) The absence ofguilt; esp., freedom
from guilt for a particular offense. Cf. GUILT.
actual innocence. (1839) Criminal law. The absence of
facts that are prerequisites for the sentence given to
a defendant. In death-penalty cases, actual inno
cence is an exception to the cause-and-prejudice rule,
and can result in a successful challenge to the death
sentence on the basis of a defense that was not pre
sented to the trial court. The prisoner must show by
clear and convincing evidence that, but for constitu
tional error in the trial court, no reasonable judge or
juror would find the defendant eligible for the death
penalty. See Sawyer v. Whitley, 505 U.S. 333, 112 S.Ct.
2514 (1992). Cf. CAUSE-AND-PREJUDICE RULE. [Cases;
Habeas Corpus (;:::>401, 462.J
legal innocence. (1813) Criminal law. The absence of
one or more procedural or legal bases to support the
sentence given to a defendant. -In the context of a
petition for writ of habeas corpus or other attack on
the sentence, legal innocence is often contrasted with
actual innocence. Actual innocence, which focuses
on the facts underlying the sentence, can sometimes
be used to obtain relief from the death penalty based
on trial-court errors that were not objected to at trial,
even ifthe petitioner cannot meet the elements ofthe
cause-and-prejudice rule. But legal innocence, which
focuses on the applicable law and procedure, is not as
readily available. Inadvertence or a poor trial strategy
resulting in the defendant's failure to assert an estab
lished legal principle will not ordinarily be sufficient
to satisfy the cause-and-prejudice rule or to establish
the right to an exception from that rule. See CAUSE
innocent 860
AND-PREJUDICE RULE. [Cases: Habeas Corpus
401.]
innocent, adj. (14c) Free from guilt; free from legal fault.
See NOT GUfLTY (2).
innocent agent. See AGENT (2).
innocent-constrnction rule. The doctrine that an
allegedly libelous statement will be given an innocu
ous interpretation ifthe statement is either ambiguous
or harmless. Cf. IN MITIORI SENSU. [Cases: Libel and
Slander
innocent conversion. See technical conversion under
CONVERSION (2).
innocent converter. See CONVERTER.
innocent conveyance. See CONVEYANCE.
innocent homicide. See HOMICIDE.
innocent infringement. See INFRINGEMENT.
innocent junior user. See JUNIOR USER.
innocent misrepresentation. See MISREPRESENTA
TION.
innocent-owner defense. See DEFENSE (1).
innocent party. See PARTY (2).
innocent passage. Int' llaw. The right ofa foreign ship to
pass through a country's territorial waters; the right of
a foreign vessel to travel through a country's maritime
belt without paying a toll. -The right of innocent
passage is guaranteed in Article 17 of the United
Nations Convention on the Law of the Sea. Passage
is considered innocent as long as it is not prejudicial
to the peace, good order, and security of the coastal
country. -Also termed right ofinnocent passage. Cf.
TRANSIT PASSAGE. [Cases: International Law (::::>5.]
'The term 'innocent passage' accurately denotes the nature
of the right as well as its limitations. In the first place it is
a right of 'passage,' that is to say, a right to use the waters
as a thoroughfare between two points outside them; a
ship proceeding through the maritime belt to a port of the
coastal state would not be exercising a right of passage.
In the second place the passage must be 'innocent'; a ship
exercising the right must respect the local regulations as
to navigation, pilotage, and the like, and, of course, it must
not do any act which might disturb the tranquillity of the
coastal state." J.L. Brierly, The Law ofNations 188-89 (5th
ed. 1955).
innocent purchaser. See bona fide purchaser under PUR
CHASER (1).
innocent purchaser for value. See bona fide purchaser
under PURCHASER (1).
innocent spouse. See SPOUSE.
innocent trespass. See TRESPASS.
innocent trespasser. See TRESPASSER.
innocuae utilitatis (i-nok-yoo-[w]ee yoo-til-a-tay-tis).
[Latin "useful without harming"] Hist. An act that is
beneficial to one person and harmful to no one.
Inn of Chancery. Hist. Any of nine collegiate houses
where students studied either to gain entry into an Inn
ofCourt or to learn how to frame writs in order to serve in the chancery courts. -Over time, the Inns Clem
ent's, Clifford'~, Lyon's, Furnival's, Thavies', Symond's,
Barnard's, Staples', and the New Inn -became little
more than dining dubs, and never exercised control
over their members as the Inns of Court did. The Inns
ofChancery were all dissolved in the 19th century. Cf.
INN OF COURT.
Inn of Court. 1. Any of four autonomous institutions,
one or more of which English barristers must join
to receive their training and of which they remain
members for life: The Honourable Societies ofLincoln's
Inn, the Middle Temple, the Inner Temple, and Gray's
Inn. -These powerful bodies examine candidates for
the Bar, "call" them to the Bar, and award the degree
of barrister.
"It is impossible to fix with certainty the period when the
professors and students of the common law first began to
associate themselves together as a society, and form them
selves into collegiate order; or to assign an exact date to
the foundation of the Inns of Court, the original institution
of which nowhere precisely appears. .. After the fixing of
the Court of Common Pleas by Magna Charta, the practitio
ners of the municipal law took up their residence in houses
between the king's courts at Westminster and the city of
London -forming then one community; and before the
end of the reign of Edward II, they appear to have divided
themselves into separate inns or colleges, at Temple Bar,
Lincoln's Inn, and Gray's Inn." Robert H. Pearce, A Guide to
the Inns ofCourt and Chancery 1-2 (1855).
2. (pl.) In the United States, an organization (formally
named the American Inns ofCourt Foundation) with
more than 100 local chapters, whose members include
judges, practicing attorneys, law professors, and law
students. -Through monthly meetings, the chapters
emphasize practice skills, professionalism, and ethics,
and provide mentors to train students and young
lawyers in the finer pOints of good legal practice.
innominate (i-nom-d-nat), adj. (17c) Civil law. Unclassi
fied; having no special name or designation. See innom
inate contract under CO:-<!TRACT.
innominate action. See ACTION (4).
innominate contract. See CONTRACT.
innominate obligations. (1949) Obligations having no
classification or name because they are not
strictly contractual, delictual, or quaSi-contractual.
An example is the obligation of a trustee to a benefi
ciary. -Also termed obligationes innominati.
innominate real contract. See innominate contract
under CONTRACT.
in nomine Dei, Amen (in nahm-a-nee dee-I, ay-men).
[Latin] Hist. In the name ofGod, Amen. -This phrase
formerly appeared at |
, ay-men).
[Latin] Hist. In the name ofGod, Amen. -This phrase
formerly appeared at the beginning ofa will or other
instrument.
innotescimus (in-oh-tes-a-mas). [Law Latin "we make
known"] Hist. A certification, in the form ofletters
patent, ofa charter of feoffment or other instrument
not filed of record. -This term derives from the word
ofemphasis appearing at the end ofthe document. Cf.
EXEMPLIFICATION.
innovata lite dependente (in-oh-vay-ta II-tee dee-pen
den-tee). [Law Latin] Hist. Innovations during the
pendency of a suit. -lhe phrase appeared in reference
to the interference with something that is the subject
of a lawsuit. See PENDENTE LITE.
innovation. Scots law. See "OVATION.
innoxiare (i-nok-shee-air-ee), vb. [Law Latin] Hist. To
purge (a person) offault.
in nubibus (in n[yJoo-bi-bas), adv. & adj. [Law Latin] In
the clouds. _ An expression for something that is under
the protection of the law.
in nudis finibus contractus (in n[y]oo-dis fin-a-bas
bn-trak-tas). [Law Latin] Hist. In the bare terms of
a contract.
in nudis terminis (in n[y]oo-dis tilr-ma-nis). [Law Latin
"with bare limits"] Hist. In its bare terms. -The phrase
appeared in reference to the simple terms of an instru
ment. See NUDUM PACTUM.
innuendo (in-yoo-en-doh). [Latin "by hinting") (17c)
1. An oblique remark or indirect suggestion, usu. of a
derogatory nature. 2. An explanatory word or passage
inserted parenthetically into a legal document. -In
criminal law, an innuendo is a statement in an indict
ment showing the application or meaning of matter
previously expressed, the meaning of which would
not otherwise be clear. In the law of defamation, an
innuendo is the plaintiff's explanation of a state
ment's defamatory meaning when that meaning is not
apparent from the statement's face. For example, the
innuendo of the statement "David burned down his
house" can be shown by pleading that the statement
was understood to mean that David was defrauding
his insurance company (the fact that he had insured
his house is pleaded and proved by inducement). Cf.
INDUCEMENT (4); COLLOQUIUM. [Cases: Libel and
Slander (::::>86.]
"Innuendo (from innl/o, to nod or beckon with the head) is
a word used in declarations and law pleadings, to ascertain
a person or thing which was named before .... If a man
say, that such a one had the pox, innuendo the French pox,
this will not be admitted, because the French pox was not
mentioned before, and the words shall be construed in a
more favourable sense. But, if in discourse of the French
pox, one say, that such a one had the pox, innuendo the
French pox, this will be admitted to render that certain
which was uncertain before." 2 Richard Burn, A New Law
Dictionary 24 (l792).
"It is not a true innuendo to repeat the obvious meaning of
defamatory words in other language, or in an embroidered
or exaggerated way. Otherwise an ingenious pleader could
perplex the judge and jury and harry the defendant by
ringing the changes on the same words, creating numerous
different causes of action, each requiring a separate
verdict. A true innuendo relies on a conjunction of the
words used and some extrinsic fact. Thus it is defamatory
in itself to say that a man's affairs are being investigated
by the Fraud Squad: but the statement does not support
the innuendo that those affairs are being carried on fraudu
lently. Conversely, the statement 'X is a good advertiser' is
innocent in itself, but carries a libellous innuendo if pub
lished to persons who know the extrinsic fact that X is an
eminent member of the Bar." R.F.v. Heuston, Salmond on
the Lawo(Torts 149 (17th ed. 1977). [The example about lawyers' advertising no longer has relevance to American
law. Eds.]
in nullius bonis (in na-h-as boh-nis). See NULLIUS IN
BONIS.
in nullo est erratum (in nal-oh est i-ray-tam), adj. [Law
Latin "in nothing is there error"] Hist. Of or relating
to a demurrer that denies any error and at once refers
a question oflaw to the court.
in obligatione (in ob-li-gay-shee-oh-nee). [Latin] Hist.
Under an obligation.
in odium (in oh-dee-<lm). [Latin] Hist. In detestation.
-For example, a gift made to a woman who was later
divorced for committing adultery was revoked in odium
ofher guilt.
in odium corrumpentis (in oh-dee-am kor-am-pen-tis).
[Latin] Hist. In detestation ofthe person corrupting.
inofficiosus (in-a-fish-ee-oh-sas), adj. [Latin "inof
ficious"] Roman law. Contrary to a natural duty of
affection, used esp. of a will that unjustly disinherits a
child or close relative. See QUERELA INOFFICIOSI TES
TAMENT!.
inofficious testament. See TESTAMENT.
inofficious will. See inoffiCiOUS testament under TESTA
MENT.
in omnibus (in ahm-ni-bas). [Latinl In all things; on all
points <a case parallel in omnibus>.
inoperable mode. Patents. In a patent application, a
disclosed way of working an invention that is not the
best mode. -'The term usu. designates a mode that is
intended to misrepresent or deliberately conceal the
best mode. That misrepresentation or concealment
is inequitable conduct that will bar patentability or
render an issued patent unenforceable. [Cases: Patents
(;:::;>98.]
inoperative, adj. (17c) 1. Having no force or effect; not
operative <an inoperative statute>. 2. Patents. (Of an
invention), the condition ofnot being capable of func
tioning as described in the patent application.
"An invention is inoperative if an exemplification, built
exactly as described in the patent, won't operate, or if
further experiment and invention are required to make it
operate." Roger Sherman Hoar, Patent Tactics and the Law
37 (3d ed. 1950).
inops consilii (in-ahps bn-sil-ee-I), adj. [Latin) Des
titute of counsel; without legal counsel. _ This term
described actions taken without benefit oflegal advice,
as when a testator drafts a will without the help of an
attorney.
'Hlhat in devises by last will and testament, (which, being
often drawn up when the party is inops consilii, and are
always more favoured in construction than formal deeds,
which are presumed to be made with great caution, fore
thought, and advice) in these devises, I say, remainders
may be created in some measure contrary to the rules
before laid down ...." 2 William Blackstone. Commentar
ies on the Laws of England 172 (1766).
in order. 1. Ready for business <the meeting is in order>.
2. Available and appropriate for consideration under
862 inordinatus
the applicable rules <the motion is in order>. Cf. OUT
OF ORDER (1).
inordinatus (in-or-d,,-nay-t<Js), n. [Latin "disorderly;
unordained"] Hist. See INTESTATE.
in pacato solo (in p,,-kay-toh soh-Ioh), adv. [Latin] In a
country that is at peace.
in pace Dei et regis (in pay-see dee-I et ree-jis), adv. [Law
Latin] Hist. In the peace of God and the king . This
phrase was used in an appeal from a murder convic
tion.
in pais (in payor pays). [Law French "in the country")
Outside court or legal proceedings. See equitable
estoppel (1) under ESTOPPEL.
in paper. Hist. Ofa proceeding that is within the juris
diction of the trial court; that is, before the record is
prepared for an appeal.
"Formerly, the suitors were much perplexed by writs of
error brought upon very slight and trivial grounds, as mis
spellings and other mistakes of the derks, all which might
be amended at the common law, while all the proceedings
were in paper, for they were then considered in fieri, and
therefore subject to the control of the courts." 3 William
Blackstone, Commentaries on the Laws of England 407
(1768).
in pari causa (in par-I kaw-zJ), adv. [Latin "in an equal
case"] In a case affecting two parties equally or in which
they have equal rights <in pari causa, the possessor
ordinarily defeats the nonpossessory claimant>.
in pari delicto (in par-I dJ-lik-toh), adv. [Latin "in equal
fault"] Equally at fault <the court denied relief because
both parties stood in pari delicto>. [Cases: Action (;=:
4; Equity (;=:65.]
in pari delicto doctrine, n. [Latin] (1917) The principle
that a plaintiff who has participated in wrongdoing
may not recover damages resulting from the wrong
doing. [Cases: Action (;=:4; Contracts (;=: 139; Equity
(;=:65.]
in pari materia (in par-I m,,-teer-ee-d). [Latin "in the
same matter"] 1. adj. On the same subject; relating to
the same matter . It is a canon of construction that
statutes that are in pari materia may be construed
together, so that inconsistencies in one statute may
be resolved by looking at another statute on the same
subject. [Cases: Statutes C:::)223.2(1)-223.2(35).]
"[Ilt seems that the present position is that, when an earlier
statute is in pari materia with a later one, it is simply part
of its context to be considered by the judge in deciding
whether the meaning of a provision in the later statute is
plain." Rupert Cross, Statutory Interpretation 128 (1976).
2. adv. Loosely, in conjunction with <the Maryland
constitutional provision is construed in pari materia
with the Fourth Amendment>.
in patiendo (in pash-ee-en-doh), adv. & adj. [fro Latin
patior "suffer"] In suffering or permitting.
in patria potestate (in pay-tree-" [or pa-tree-J] poh-tes
tay-tee). [Latin) Roman law. (Ofa person) in the power
of the father or a senior male ascendant; subject to
patria potestas . Uncles and brothers never had power over nephews or younger brothers. See patria potestas
under POTESTAS; SUB POTESTATE. Cf. SUI JURIS.
in patrimonio principis (in pa-tr<J-moh-nee-oh prin-si
pis). [Latin] See INTER REGALIA.
in pectore judicis (in pek-td-ree joo-di-sis), adv. & adj.
[Latin) In the breast of the court. See BREAST OF THE
COURT.
in pejorem partem (in pJ-jor-Jm pahr-tdm), adv. [Law
Latin] In the worst part; on the worst side.
in pendente (in pen-den-tee). [Latin] Hist. In suspen
sion; in abeyance.
inpenny and outpenny. Hist. A customary payment ofa
penny on entering into and going out of a tenancy.
in periculo constitutus (in p,,-rik-Y;:l-loh kon-sti-t[y]
OO-tJ8). [Latin] Hist. Standing in danger.
in perpetuam commendam (in pdr-pech-oo-dm kJ-men
d;:lm). [Law Latin] Hist. In perpetual trust. Something
given in perpetuam commendam was equivalent to a
gift.
in perpetuam rei memoriam (in pJr-pech-oo-Jm [or
pJr-pe-tyoo-Jm) ree-I mJ-mor-ee-Jm), adv. [Latin] In
perpetual memory ofa matter . This phrase refers to a
deposition taken to preserve the deponent's testimony.
[Cases: Federal Civil Procedure (;=: 1291; Pretrial Pro
cedure (;::=>61.]
in perpetuity (in pdr-p,,-t[yjoo-J-tee). (14c) Forever. See
PERPETUITY.
in perpetuum (in pJr-pech-oo-"m or p"r-pe-tyoo-Jm),
adv. [Latin] Forever; perpetually. Sometimes spelled
imperpetuum.
in perpetuum rei testimonium (in pJr-pech-oo-dm [or
p"r-pe-tyoo-dm] ree-I tes-ti-moh-nee-Jm), adv. [Law
Latin] In perpetual testimony ofa matter . This phrase
refers to a statute that confirms existing common law.
"Statutes also are either declaratory of the common law, or
remedial of some defects therein. Declaratory, where the
old custom of the kingdom is almost fallen into disuse,
or become disputable; in which case the parliament has
thought proper, in perpetuum rei testimonium, and for
avoiding all doubts and difficulties, to declare what the
common law is and ever hath been." I William Blackstone,
Commentaries on the Laws of England 86 (1765).
in personam (in p"r-soh-nJm), ad). [Latin "against a
person"] (1Sc) 1. Involving or determining the personal
rights and obligations of the parties. 2, (Of a legal action)
brought against a person rather |
determining the personal
rights and obligations of the parties. 2, (Of a legal action)
brought against a person rather than property. Also
termed personal. See action in personam under ACTION
(4). Cf. IN REM. [Cases: Courts (;::::10.] in personam,
adv.
"An action is said to be in personam when its object is to
determine the rights and interests of the parties them
selves in the subject-matter of the action, however the
action may arise, and the effect of a judgment in such an
action is merely to bind the parties to it. A normal action
brought by one person against another for breach of
contract is a common example of an action in personam."
R.H. Graveson, Conflict ofLaws 98 (7th ed. 1974).
in personam jndgment. See personal judgment under
JUDGMENT.
863 inquest
in personam jurisdiction. See personal jurisdiction
under JURISDICTION.
in pessimafide (in pes-J-mJ fI-dee). [Latin] Hist. In the
worst faith; dishonestly.
in petitorio (in pet-J-tor-ee-oh). [Latin] Hist. In a
petitory action.
in pios usus (in phIS yoo-SJS), adv. [Law Latin] Rist.
For pious uses; for religious purposes. -This phrase
referred to property used by, or claimed by, the church,
such as the property ofan intestate who had no known
heirs.
in placito (in plas-J-toh). [Law Latin] Hist. In a suit.
in plena vita (in plee-nJ VI-tJ), Cldv. & ad). [Law Latin]
In full life .
in pleno comitatu (in plee-noh kahm-i-tay-t[y]oo), adv.
& adj. [Law Latin] In full county court.
in pleno [umine (in plee-noh loo-mJ-nee), adv. & adj.
[Law Latin] In the light ofday; in common knowledge;
in public.
in poenam (in pee-nJm). [Latin] Hist. As a penalty; as
a punishment.
in point. See ON POINT.
in posse (in pos-ee). [Latin] Not currently existing, but
readv to come into existence under certain conditions
in the future; potential <the will contemplated both
living children and children in posse>. Cf. IN ESSE.
in possessorio (in pah-ses-sor-ee-oh). [Law Latin] Hist.
In a possessory suit.
in potestate parentis (in poh-tes-tay-tee pJ-ren-tis), adv.
& adj. [Latin] Hist. In the power ofa parent. See PATRIA
POTESTAS.
in potestate patris (in poh-tes-tay-tee pay-tris arpa-tris).
[Latin] Roman law. Under the power of the father.
The phrase appeared in reference to the position of a
child in power. See patria potestas under POTESTAS; SUB
POTESTATE. Cf. SUI JURIS.
in po testate viri (in poh-tes-tay-tee veer-I). [tatinj Hist.
Under the power of the husband. -Formerly, this
phrase appeared in reference to the position ofa wife
in legal matters because the husband was the guardian
ofthe wife.
in praemissorumfidem (in pree-mJ-sor-Jm [orprem-a-]
fI-dJm), adv. & adj. [Law Latin] Rist. In confirmation
or attestation of the premises. _ This phrase commonly
appeared in notarized documents.
in praesenti (in pri-zen-tI or pree-). [Latin] At present;
right now. Cf. IN FUTURO.
in praesentia dominorum (in pri-zen-shee-a dom-J
nor-Jm). [Latin] Hist. In presence of the lords. -The
phrase was added to the presiding judge's signature to
indicate that the remaining judges did not have to sign
the document because the presiding judge had signed
the writing in their presence. -Abbr. IPD.
in prender (in pren-dar), adj. [Law French "in taking"]
Hist. (Ofa right) consisting in property taken to fulfill a claim to it, such as an incorporeal hereditament (as
a heriot custom) that a lord had to seize in order to
exercise the right to it. Ct~ IN RENDER.
in-presence rule. 1he prinCiple that a police officer may
make a warrantless arrest of a person who commits a
misdemeanor offense not only in the officer's actual
presence but also within the officer's immediate
vicinity.
"The common law rule with respect to misdemeanors was
quite different; a warrant was required except when a
breach of the peace occurred in the presence of the arrest
ing officer. ... Though the 'in presence' rule might be
construed as requiring that the misdemeanor in fact have
occurred in the officer's presence, the modern view is that
the officer may arrest if he has probable cause to believe
the offense is being committed in his presence." Wayne
R. LaFave & Jerold H. Israel, Criminal Procedure 3.5, at
169-70 (2d ed. 1992).
in primis (in prI-mis). See IMPRIMIS.
in principio (in prin-sip-ee-oh), adv. [Latin] At the
beginning.
in privato patrimonio (in prr-vay-toh pa-trJ-moh
nee-oh). [Latin] Hist. Among private property.
in promptu (in promp-t[y]oo), adv. & adj. [Latin "at
hand"] Archaic. Impromptu.
in propria persona (in proh-pree-J par-soh-n~). [Latin
"in one's own person"] See PRO SE.
in proximo gradu (in prok-sJ-moh gray-d[y]oo).
[Latin] Roman law. In the nearest degree . 1he phrase
appeared in reference to a child's relationship to the
father or to a grandchild's relation to a grandfather if
the grandchild represented his or her deceased father.
See PER STIRPES.
in publica custodia (in p<lb-li-kJ kJs-toh-dee-J). [Latin]
Hist. In the public custody. -The phrase appeared in
reference to public records.
in publicam vindictam (in p<lh-li-kJm vin-dik-t~m).
[Latin] Hist. For vindicating public right.
in puram eleemosynam (in pyoor-Jm el-J-mos-a-n;)m).
[Law Latin] Hist. In pure charity. -Gifts were some
times made to churches in puram eleemosynam, requir
ing nothing but prayers for the grantor in return.
in quantum locupletiores facti sumus ex damno alterius
(in kwon-tJm lok-yoo-plee-shee-or-eez fak-tI sly]
oo-mJS eks dam-noh al-teer-ee-as). [Latin] Roman
law. Insofar as we have been enriched to the loss or by
the damage ofanother. _lhe phrase appeared in refer
ence to the rule by which certain persons were bound
in restitution to the extent of their enrichment. See
NEGOTIORUM GESTIO.
in quantum lucratus est (in kwon-tJm 100-kray-tJs est).
[Latin] Hist. Insofar as he has gained or profited.
in quantum valeat (in kwon-t<:1m vay-Iee-at or -Jt).
[Latin] Hist. For what it is worth.
inquest. (Be) 1. An inquiry by a coroner or medical
examiner, sometimes with the aid of a jury, into the
manner ofdeath ofa person who has died under suspi
cious circumstances, or who has died in prison. Also
864 inquest jury
termed coroner's inquest; inquisition after death. [Cases:
Coroners Homicide C=> l1lO.] 2. An inquiry into
a certain matter by a jury empaneled for that purpose.
3. The finding of such a specially empaneled jury. 4.
A proceeding, usu. ex parte, to determine, after the
defendant has defaulted, the amount of the plaintiffs
damages. Cf. INQUISITION.
grand inquest. 1. An impeachment proceeding. 2.
Hist. (cap.) The survey of the lands of England in
lO85-1086, by order of William the Conqueror, and
resulting in the Domesday Book Also termed Great
Inquest; Grand Survey; Great Survey. See DOMESDAY
BOOK. 3. Hist. Grand jury.
inquest of office. Hist. An inquest conducted by a
coroner, sheriff, or other royal officer into the Crown's
right to property by reason of escheat, treason, or
other ground offorfeiture.
5. WARDMOTE.
inquest jury. See JURY.
in qui bus infitiando lis crescit (in kwib-<}s in -fish-ee-an
doh lis kres-it). [Latin] Roman law. In which the suit
increases by denial. The phrase appeared in reference
to the measure of damages in a legal action when, if
the defendant wrongfully denied a claim for damages,
the defendant could be penalized by a multiple of the
original claimed amount, usu. double, triple, or qua
druple. -Also spelled inficiando.
inquilinus (in-kwd-h-nds), n. [Latin] Roman law. A
person who leases or lives in another's house or apart
ment; esp., an urban tenant.
inquirendo (in-kwd-ren-doh). [Latin] Hist. An inquiry or
investigation; esp., an inquiry into a matter concerning
the Crown's interests, such as lands that are forfeited
to the Crown.
inquiry. (15c) 1. lnt'llaw. FACT-FINDING (2). 2. Parlia
mentary law. A request for information, either proce
dural or substantive. See REQUEST; POINT (2).
parliamentary inquiry. An inquiry that asks a question
about procedure.
3. Hist. A writ to assess damages by the sheriffor sher
iff's deputies.
inquiry notice. See NOTICE.
inquisitio (in-kw<l-zish-ee-oh). [Latin] Inquisition or
inquest. See INQUISITION (1).
inquisitio post mortem (in-kwd-zish-ee-oh pohst mor
tdm). [Latin] See inquest ofoffice under INQUEST.
inquisition. (14c) I. The record ofthe finding ofthe jury
sworn by the coroner to inquire into a person's death.
[Cases: Coroners C=> 18.] 2. A judicial inquiry, esp. in a
derogatory sense. 3. A persistent, grueling examination
conducted without regard for the examinee's dignity or
civil rights. Cf. INQUEST.
inquisition after death. See INQUEST (1).
inquisitor. (16c) l. An officer who examines and inquires,
such as a coroner or sheriff. 2. A person who inquires;
esp., one who examines another in a harsh or hostile manner. 3. Hist. Eccles. law. An officer authorized to
inquire into heresies; esp., an officer of the Spanish
Inquisition.
inquisitorial court. See COURT.
inquisitorial system. (1846) A system of proof-taking
used in civil law, whereby the judge conducts the trial,
determines what questions to ask, and defines the scope
and the extent ofthe inquiry . This system prevails in
most of continental Europe, in Japan, and in Central
and South America. Cf. ADVERSARY SYSTEM.
INR. abbr. BUREAU OF INTELLIGENCE AND RESEARCH.
in re (in ree or ray). [Latin "in the matter of"] (1877) (Of
a judicial proceeding) not formally including adverse
parties, but rather involving something (such as an
estate). _ The term is often used in case citations, esp.
in uncontested proceedings <In re Butler's Estate>.
Also termed matter of<Alatter ofButler's Estate>.
in rebus (in ree-b<}s), adv. [Latin] In things, cases, or
matters.
in rebus litigiosis (in ree-b<'ls IHij-ee-oh-sis). [Latin] Hist.
In things subject to litigation.
in rem (in rem), adj. [Latin "against a thing"] (18c)
Involving or determining the status of a thing, and
therefore the rights of persons generally with respect
to that thing. Also termed (archaically) impersonal.
See action in rem under ACTION (4). Cf. IN PERSONAM.
[Cases: Admiralty Courts ~---, 16.] in rem,
adv.
"An action in rem is one in which the judgment of the
court determines the title to property and the rights of
the parties, not merely as between themselves, but also as
against all persons at any time dealing with them or with
the property upon which the court had adjudicated." R.H.
Graveson, Conflict ofLaws 98 (7th ed. 1974).
quasi in rem (kway-sI in rem or kway-zr). [Latin "as
if against a thing"] (1804) InvolVing or determining
the rights of a person having an interest in property
located within the court's jurisdiction. See action
quasi in rem under ACTION (4). [Cases: Courts
16.]
in re mercatoria (in ree m<}r-k<}-tor-ee-<}). [Latin] Scots
law. In a mercantile transaction . Documents made
in or connected with a mercantile transaction did not
require the typical formalities in order to be binding.
"All writings in re mercatoria are privileged, and are
held valid and binding, although wanting the solemni
ties com mon and necessary to ordinary deeds .... This
privilege has been given to these documents, because of
the rapidity with which, in most cases, they have to be
prepared, and the immediate use |
given to these documents, because of
the rapidity with which, in most cases, they have to be
prepared, and the immediate use to which they have to
be put, and also because, from the necessity of the case,
they are generally prepared by those who are not supposed
to be acquainted with the formalities and solem nities of
deeds." John Trayner, Trayner's Latin Maxims 273 (4th ed.
1894).
in rem judgment. See judgment in rem under
JUDGMENT.
in rem jurisdiction. See JURISDICTION.
865
in rem suam (in rem s[r]oo-am). [Latin] Hist. Regarding
one's own property; for one's own advantage.
in rem versum (in rem var-sam). [Latin] Roman law.
Employed in one's own matter; used to one's own
advantage. See ACTION DE IN REM VERSO.
in render (in ren-dar), adj. [Law French "in yielding or
paying"] Hist. (Of property) required to be given or
rendered. Cf. IN PRE'mER.
in re propria (in ree proh-pree-a). [Latin] Hist. In one's
own affairs.
in rerum natura (in reer-am na-tyuur-a), adv. & adj.
[Law Latin] Hist.ln the nature of things; in existence.
'Ibis phrase was used in a dilatory plea alleging that
the plaintiff was a fictitious person, and therefore not
capable of bringing the action.
in retentis (in ri-ten-tis). [Law Latin "among things
withheld"] Scots law. Subject to reservation . Evidence
might be taken in retentis if, for example, the witness
were mortally ill, and then be set aside until the proper
time to produce it.
in rigore juris (in rig-ar-ee joor-is). [Latin] Hist. Accord
ing to strict law.
in rixa (in rik-sa). [Latin] Scots law. In an altercation or
brawl. Words spoken in rixa were usu. not actionable
as defamation.
in rixa per plures commissa (in rik-sa par pIuur-eez
[or ploo-reezl ka-mis-a). [Latin] Scots law. An offense
committed in the course of a quarrel involving several
persons.
inroll, vb. See ENROLL (1).
inrollment. See ENROLLMENT.
INS. abbr. IMMIGRATION AND NATURALIZATION
SERVICE.
in sacris (in say-kris). [Latin] Scots law. In sacred matters.
The phrase appeared in reference to the supremacy of
ecclesiastical-court jurisdiction in certain matters, esp.
those involving church doctrine and discipline.
insane, adj. (l6c) Mentally deranged; suffering from
one or more delusions or false beliefs that (1) have no
foundation in reason or reality, (2) are not credible to
any reasonable person of sound mind, and (3) cannot
be overcome in a sufferer's mind by any amount of
evidence or argument. See INSANITY. [Cases: Mental
Health
insane asylum. See ASYLUM (3).
insane delusion. (1838) An irrational, persistent belief
in an imaginary state of facts resulting in a lack of
capacity to undertake acts of legal consequence, such
as making a will. See CAPACITY (2). [Cases: Criminal
Law (::=:49.]
insanity, n. (16c) Any mental disorder severe enough
that it prevents a person from having legal capacity and
excuses the person from criminal or civil responSibil
ity. Insanity is a legal, not a medical, standard.
Also termed legal insanity; lunacy. Cf. SANITY. [Cases: inSCriptio
Criminal Law~'47; HomicideC:::>817; Mental Health
''The lawyers refer to 'insanity.' This is a legal term only,
and one that is not used by the psychiatrist; the latter
prefers to speak of mental disorder, mental illness, or of
psychosis or neurosis." Winfred Overholser, Psychiatry and
the Law, 38 Mental Hygiene 243,244 (1954).
"The word 'insanity' is commonly used in discussions of
this problem although some other term would seem to be
preferable such as 'mental disease or defect,' -which may
be shortened to 'mental disorder' in general discussions if
this is clearly understood to include disease of the mind,
congenital lack, and damage resulting from traumatic
injury, but to exclude excitement or stupefaction result
ing from liquor or drugs. Apart from its uses In the law
'insanity' is usually employed to indicate mental disorder
resulting from deterioration or damage as distinguished
from congenital deficiency, Criminal incapacity may result
as readily from one as from the other, but while the earlier
authorities spoke of the 'idiot' and the 'madman,' . ' . the
more recent tendency in the law has been to include both
under the 'insanity' label," Rollin M. Perkins & Ronald N,
Boyce, Criminal Law 952 (3d ed, 1982).
"Another objection to the word 'insanity' is the unwar
ranted assumption that it refers to a very definite mental
condition, seldom put into words but apparent in many
discussions of the problem." Id.
emotional insanity. (1872) Insanity produced by
a violent excitement of the emotions or passions,
although reasoning faculties may remain unimpaired;
a passion that for a period creates complete derange
ment of intellect. Emotional insanity is sometimes
described as an irresistible impulse to do an act. See
IRRESISTIBLE-IMPULSE TEST. [Cases: Criminal Law
Homicide (::=:818.]
partial insanity. See diminished capacity under CAPA
CITY (3),
temporary insanity. (l8c) Insanity that exists only at
the time of a criminal act.
insanity defense. Criminal law. (1912) An affirmative
defense alleging that a mental disorder caused the
accused to commit the crime. See 18 USCA 17; Fed.
R. Crim. P. 12.2. Unlike other defenses, a success
ful insanity defense may not result in an acquittal but
instead in a special verdict ("not guilty by reason of
insanity") that usu. leads to the defendant's commit
ment to a mental institution. -Also termed insanity
plea. See MCNAGHTEN RULES; SUBSTANTIAL-CAPAC
ITY TEST; IRRESISTIBLE-IMPULSE TEST; DURHAM RULE;
APPRECIATION TEST. [Cases: Criminal Law
Homicide C:::: 817.]
black-rage insanity defense. An insanity defense
based on an African-American's violent eruption of
anger induced at least partly by racial tensions . This
defense was first used in the mid-1990s,
Insanity Defense Reform Act of 1984 test. See APPRE
CIATION TEST.
insanity plea. See INSANITY DEFENSE.
inscriptio (in-skrip-shee-oh), n. [Latin] In later Roman
law, a written accusation detailed in an official register.
The accuser was liable to punishment if the accused
866 inscription
was acquitted. See INSCRIPTION (3). PI. inscriptiones
(in-skrip-shee-oh-neez). inscribere, vb.
inscription, n. (14c) 1. The act of entering a fact or
name on a list, register, or other record. 2. An entry
so recorded. 3. Civil law. An agreement whereby an
accuser must, ifthe accusation is false, receive the same
punishment that the accused would have been given if
found guilty. -inscribe, vb. inscriptive, adj.
inscriptiones (in-skrip-shee-oh-neez). [Latin] Hist. Title
deeds; written instruments by which rights or interests
are granted.
inscrutable fault. See FAULT.
insecure, adj. (17c) Having a good-faith belief that the
possibility of receiving payment or performance from
another party to a contract is unlikely.
insecurity clause. (1872) A loan-agreement provision
that allows the creditor to demand immediate and full
payment of the loan balance if the creditor has reason
to believe that the debtor is about to default, as when the
debtor suddenly loses a significant source of income.
Cf. ACCELERATION CLAUSE. [Cases: Bills and Notes
129(1); Secured Transactions C=-221.]
in separali (in sep-Cl-ray-h), adv. & adj. [Law Latin] In
several; in severalty.
insert, vb. Parliamentary law. To amend (a motion) by
placing new wording within or around the current
wording. -Some authorities distinguish amendment
by adding, which places new wording after the current
wording, from amendment by inserting. See ADD;
AMENDMENT (3).
inside director. See DIRECTOR.
inside information. Information about a company's
financial or market situation obtained not from public
disclosure, but from a source within the company or
a source that owes the company a duty to keep the
information confidential. Also termed insider infor
mation. See INSIDER TRADING. [Cases: Securities Regu
lation C=-60.28.]
insider. (1848) 1. Securities. A person who has knowl
edge offacts not available to the general public. [Cases:
Securities Regulation C=-60.28.]
temporary insider. A person or firm that receives inside
information in the course ofperforming profeSSional
duties for a client. Generally, that person or firm is
subject to the same proscriptions as an insider.
2. One who takes part in the control of a corporation,
such as an officer or director, or one who owns 10%
or more of the corporation's stock. 3. Bankruptcy. An
entity or person who is so closely related to a debtor
that any deal between them will not be considered an
arm's-length transaction and will be subject to close
scrutiny. [Cases: BankruptcyC=-2827.]
insider dealing. See INSIDER TRADING.
insider information. See INSIDE INFORMATION.
insider preference. See PREFERENCE.
insider report. See REPORT (1). insider trading. The use of material, non public infor
mation in trading the shares ofa company by a corpo
rate insider or other person who owes a fidUciary duty
to the company . This is the classic definition. The
Supreme Court has also approved a broader definition,
known as the "m isappropriation theory": the deceitful
acquisition and misuse of information that properly
belongs to persons to whom one owes a duty. Thus,
under the misappropriation theory, it is insider trading
for a lawyer to trade in the stock of XYZ Corp. after
learning that a client ofthe lawyer's firm is planning a
takeover ofXYZ. But under the classic definition, that
is not insider trading because the lawyer owed no duty
to XYZ itself. Also termed insider dealing. [Cases:
Securities Regulation (;::::>60.28.]
'''What is insider trading?' The term is probably best defined,
to the extent any definition is adequate, as 'the purchase or
sale of securities on the basis of material, non-pUblic infor
mation.' What counts as 'non-public information'? What
non-pUblic information can be deemed 'material'? When
is a trader who is in possession of material, non-public
information trading 'on the baSis of' that information? Must
the information be about the company whose securities are
being purchased or sold? What characteristics establish
'insider' status sufficient to warrant legal proscriptions of
trading? These are all questions that are derived from the
definition of insider trading just offered ...." C. Edward
Fletcher, Materials on the Law ofInsider Trading 3 (1991).
"A number of different parties may be subject to a variety
of monetary penalties under the federal securities laws
for engaging in illegal insider trading. These parties may
include actual traders, their tippers, as well as broker
dealers and investment advisors (when they fail to take
appropriate steps to prevent the insider trading violation(s)
or fail to maintain and enforce policies and procedures
reasonably designed to prevent the occurrence of such
trading). Measures that may be ordered include (1) requir
ing the subject party to 'disgorge' the iIIgotten profits (or
loss avoided) in an SEC enforcement action, (2) subjecting
individuals to a maximum criminal fine of $1 million and 10
years imprisonment, and (3) in an SEC enforcement action,
within a court's discretion, ordering the subject party to
pay into the U.S. Treasury a treble damage penalty amount
ing to three times the profit gained or loss avoided." Marc
I. Steinberg, Understanding Securities Law 277-78 (2d ed.
1996).
insidiatio viarum (in-sid-ee-ay-shee-oh vI-air-Clm).
[Latin "ambush on the highway"] Rist. The crime of
waylaying someone along the roadway. See LATROCI
NATION; HIGHWAYMAN.
insilium (in-sil-ee-Clm). (Law Latin] Hist. Pernicious
advice or counsel.
in simili materia (in sim-d-II ma-teer-ee-a), adv. & adj.
(Law Latin] Of the same or a similar subject matter.
insimul (in-sim-dl or in-si-mal), adv. [Latin] Together,
jOintly.
insimul computassent (in-sim-Cll or in-si-miJI kahm
pyoo-tas-Clnt). [Law Latin "they accounted together"]
Hist. A count in an assumpsit action asserting that the
parties had reviewed their accounts and that the defen
dant voluntarily agreed to pay the amount sought by
the plaintiff . This term derives from the initial words
ofthe count.
867 inspeximus
insimul tenuit (in-sim-~l or in-si-mCll ten-yoo-it). |
Subsets and Splits