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ofits case to a neutral
third party and to the opponent's representatives, who
have settlement authority. _ The third party may render
an advisory opinion on the anticipated outcome ofliti
gation. Cf. summary jury trial under TRIAL.
'The idea behind the minitrial is that the parties can resolve
a dispute on their own more efficiently if litigant repre
sentatives with settling authority are educated about the
strengths and weaknesses of each side, giving summary
presentations of their best cases under the eye of ajointly
selected neutral advisor. After each case is presented,
the parties meet privately to negotiate an agreement.
The minitrial is confidential and nonbinding. Usually, no
transcript is made of the proceeding. Minitrials have had
some success in saving both time and money." Alfred C.
Aman Jr, & William T. Mayton, Administrative Law 291 (2d
ed,2001),
minor, n. (16c) 1. A person who has not reached full
legal age; a child or juvenile. Also termed infant. Cf.
ADULT. [Cases: Infants
emancipated minor. (1817) A minor who is self-sup
porting and independent ofparental control, usu. as
a result of a court order. See EMANCIPATION. [Cases:
Child Support Parent and Child C=>16.]
minor in need ofsupervision. See child in need ofsuper
vision under CHILD. Abbr. MINS.
2. Roman law. A person who is past puberty but less
than 25 years old. Also termed minor quam 25
annis.
minor aetas (mI-n;)r ee-tas). [Latin] Hist. Lesser age;
minority; infancy.
minora regalia (mi-nor-;) ri-gay-lee-;)). See regalia
minora under REGALIA.
minor crime. See MISDEMEANOR.
minor dispute. See DISPUTE.
minor fact. See FACT.
minority. (I5c) 1. The state or condition ofbeing under
legal age . In Scots law, legal minority begins at the
end ofpuberty; until then, a person is a pupil. Also
termed infancy; nonage; immaturity. Cf. MAJORITY (1).
[Cases: Infants C=> 1.] 2. A group having fewer than a
controlling number ofvotes. Cf. MAJORITY (2). [Cases:
Corporations 3. A group that is different in
some respect (such as race or religious belief) from the
majority and that is sometimes treated differently as a
result; a member of such a group . Some courts have
held that the term minority, in this sense, is not limited
to a group that is outnumbered. It may also be applied
to a group that has been traditionally discriminated
against or SOcially suppressed, even if its members
are in the numerical majority in an area. [Cases: Civil
Rights C=>1007.]
Minority Business Development Agency. A unit in the
U.S. Department ofCommerce responsible for develop
ing and coordinating a national program for minority
business enterprise. -Abbr. MBDA.
minority discount. A reduction in the value ofa closely
held business's shares that are owned by someone who
has only a minority interest in the business. _ The
1087
concept underlying a minority discount is recogni
tion that controlling shares -those owned by someone
who can control the business -are worth more in the
market than noncontrolling shares. But when dis
senting shareholders object to a corporate act, such
as a merger, and become entitled to have their shares
appraised and bought by the corporation, many courts
hold that incorporating a minority discount into the
valuation ofthe dissenters' shares is inequitable and is
not permitted. See APPRAISAL REMEDY. [Cases: Corpo
rations 182.4(5),584.]
minority opinion. See dissenting opinion under OPINION
(1).
minority report. See REPORT (1).
minority shareholder. See SHAREHOLDER.
minor participant. (1960) Criminal law. Under the
federal sentencing guidelines, a defendant who is less
culpable for a crime than the other members of the
group committing the crime, but who has more culpa
bility than a minimal participant. A defendant who
is a minor participant can have the offense level for the
crime decreased by two levels. U.S. Sentencing Guide
lines Manual 3B1.2(b). Cf. MINIMAL PARTICIPANT.
[Cases: Sentencing and Punishment ~~764.]
minor quam 25 annis (mI-n<lf kwam 25 an-is). [Latin].
See MINOR (2).
minor's estate. See ESTATE (1).
minor's trust. See 2503(c) trust under TRUST.
MINS. abbr. Minor in need ofsupervision. See child in
need ofsupervision under CHILD.
mint, n. (I5c) 1. A government-authorized place for
coining money. [Cases: United States 2. A large
supply, esp. of money.
mintage. (16c) 1. The mint's charge for coining money.
2. The product of minting; money.
mint-mark. An authorized mark on a coin showing
where it was minted.
minuend (min-yoo-end). (18c) In a mathematical
equation, the number from which another number
(the subtrahend) is subtracted to arrive at a remainder
or balance . The term is used in law in a variety of
accounting and mathematical contexts. Cf. SUBTRA
HEND.
minus (ml-n<ls), adj. &adv. [Latin] Roman law. Less; less
than; not at all . A debt remaining wholly unpaid was
called minus solutum.
minus Latium. See LATIUM MINUS.
minute book. (16c) 1. A book in which a court clerk
enters minutes ofcourt proceedings. [Cases: Clerks of
Courts C::::>67.] 2. A record of the subjects discussed
and actions taken at a corporate directors' or share
holders'meeting. Also termed minutes book.
minute entry. See minute order (1) under ORDER (2).
minute order. See ORDER (2). Mirandize
minutes. (15c) 1. Memoranda or notes of a transac
tion, proceeding, or meeting. 2. Parliamentary law.
Ine formal record of a deliberative assembly's pro
ceedings, approved (as corrected, if necessary) by the
assembly. -Also termed journal; record; report. See
DISPENSE WITH THE READING OF THE MINUTES; SPREAD
UPON THE MINUTES.
'The minutes of an organization include a record of all
official actions taken, the presiding officer, the presence
of a quorum, and information showing that the meeting
was duly called and thus legal. The other contents of the
minutes will depend upon the degree of detail desired ....
The minutes should be an official record of actions taken
by the organization, not a transcript of what indiViduals
say in meetings." Ray E. Keesey, Modern Parliamentary
Procedure 84 (1994).
"The record of the proceedings of a deliberative assembly
is usually called the minutes, or sometimes particularly
in legislative bodies the journal. In an ordinary society,
unless the minutes are to be published, they should contain
mainly a record of what was done at the meeting, not
what was said by the members. The minutes should never
reflect the secretary's opinion, favorable or otherwise, on
anything said or done." Henry M. Robert, Robert's Rules of
Order Newly Revised 48. at 451 (10th ed. 2000),
3. Scots law. Written forms for preserving evidence.
"When it is necessary to preserve evidence of any inciden
tal judicial act or statement, this is done in the Court of
Session, and also in the inferior courts, by a minute. Thus,
where the pursuer restricts his libel, or makes a reference
to the defender's oath ... this is done by a minute. Strictly
speaking, those minutes ought to be prepared by the clerk
of court, as their form imports. They commence with the
name of the counsel ... and purport to be a statement
made by him ...." William Bell, Bell's Dictionary and Digest
of the Law of Scotland 721 (George Watson ed., 7th ed.
1890).
minutes book. See MINUTE BOOK.
minutio (mi-n[y]oo-shee-oh), n. [Latin] Roman law. A
lessening or reduction. See DEMfNUTlO.
Miranda hearing (md-ran-d<l). (1966) A pretrial pro
ceeding held to determine whether the Miranda rule
has been followed and thus whether the prosecutor may
introduce into evidence the defendant's statements to
the police made after arrest. See MIRANDA RULE. [Cases:
Criminal Law~414.1
Miranda rule. (1966) The doctrine that a criminal
suspect in police custody must be informed ofcertain
constitutional rights before being interrogated. _ The
suspect must be advised of the right to remain silent,
the right to have an attorney present during question
ing, and the right to have an attorney appointed ifthe
suspect cannot afford one. Ifthe suspect is not advised
of these rights or does not validly waive them, any
eyidence obtained during the interrogation cannot be
used against the suspect at trial (except for impeach
ment purposes). Miranda v. Arizona, 384 U.S. 436, 86
S.Ct. 1602 (1966). [Cases: Criminal Law ~412.2(3),
517.2(3),518.]
Miranda warning. See MIRANDA RULE.
Mirandize (m;:l-ran-drz), vb. (1971) Slang. To read
or recite (to an arrestee) rights under the lvIiranda
rule <the suspect was arrested, Mirandized, and
1088 mirror-image rule
interrogated>. See MIRANDA RULE. [Cases: Criminal
Law P412.2(3), 517.2(3), 518.J
mirror-image rule. (1972) Contracts. The doctrine that
the acceptance ofa contractual offer must be positive,
unconditional, unequivocal, and unambiguous, and
must not change, add to, or qualify the terms of the
offer; the common~law principle that tor a contract to
be formed, the terms of an acceptance must correspond
exactly with those of the offer. In modern commercial
contexts, the mirror-image rule has been replaced by
a UCC provision that allows parties to enforce their
agreement despite minor discrepancies between the
offer and the acceptance. The rule still applies to inter
national sales contracts governed by the UN Conven~
tion on Contracts for the International Sales ofGoods
(article 19). Also termed ribbon-matching rule. See
BATTLE OF THE FORMS. [Cases: ContractsP24.]
"If an offeree purports to accept an offer but in doing so
adds various conditions and qualifications of his own, is
the acceptance binding on the offeror. at least in part?
Generally speaking. the answer is no: the common law
rule, reflected in Restatement Section 59. is that a state
ment of acceptance is effective only if it is a mirror image
of the offer and expresses unconditional assent to all of
the terms and conditions imposed by the offeror." Marvin
A. Chirelstein, Concepts and Case Analysis in the Law of
Contracts 54 (1990).
misa (nu-za). [Law LatinJ Hist. 1. The issue in a writ of
right; a mise. 2. An agreement; a compromise.
misadministration. See MALADMINISTRATION.
misadventure. (13c) 1. A mishap or misfortune. 2.
Homicide committed accidentally by a person doing a
lawful act and having no intent to injure; ACCIDENTAL
KILLING. [Cases: Homicide P762.]
misallege, vb. To erroneously assert (a fact, a claim,
etc.).
misapplication, n. (l7c) The improper or illegal use of
funds or property lawfully held. -misapply, vb.
misappropriation, n. (I8c) 1. The application ofanoth
er's property or money dishonestly to one's own use.
See EMBEZZLEMENT. Cf. APPROPRIATION; EXPROPRI
ATIO:-l (1). 2. Intellectual property. The common~law
tort ofusing the noncopyrightable information or ideas
that an organization collects and disseminates for a
profit to compete unfairly against that organization,
or copying a work whose creator has not yet claimed
or been granted exclusive rights in the work. Int'l News
Servo V. Associated Press, 248 U.S. 215, 29 S.Ct. 68 (1918).
The elements ofmisappropriation are: (1) the plaintiff
must have invested time, money, or effort to extract
the information, (2) the defendant must have taken
the information with no similar investment, and (3)
the plaintiff must have suffered a competitive injury
because ofthe taking. [Cases: Copyrights and Intel~
lectual Property C:::> 108.] 3. The doctrine giving rise
to such a tort claim. misappropriate, vb.
'The doctrine of 'misappropriation,' which is a distinct
branch of unfair competition, ... has been applied to
a variety of situations in which the courts have sensed
that one party was dealing 'unfairly' with another, but
which were not covered by the three established statutory systems protecting intellectual property: copyright, patent,
and trademark/deception as to origin." U.S. CoifAss'n v. St.
Andrews Systems, Data-Max, inc. 749 F.2d 1028, 1034-35
(3d Cir. 1984) (Becker, J.).
misappropriation theory. Securities. The doctrine that
a person who wrongfully uses confidential informa~
tion to buy or sell securities in violation ofa duty owed
to the one who is the information source is guilty of
securities fraud. [Cases: Securities Regulation P
60.28(2.1).]
misbehavior in office. See |
[Cases: Securities Regulation P
60.28(2.1).]
misbehavior in office. See official misconduct under MIS~
CONDUCT.
misbranding, n. The act or an instance oflabeling one's
product falsely or in a misleading way. _ Misbrand
ing is prohibited by federal and state law. Food
PIS; Health C=>311; Products Liability
misbrand, vb.
miscarriage. (l6c) Spontaneous and involuntary pre
mature expulsion ofa nonviable fetus. Also termed
spontaneous abortion.
criminal miscarriage. Hist. See ABORTION (1).
miscarriage ofjustice. (1862) A grossly unfair outcome
in a judicial proceeding, as when a defendant is con
victed despite a lack ofevidence on an essential element
of the crime. -Also termed failure ofjustice.
miscegenation (mi~sej~a~nay~shan). (1863) A marriage
between persons of different races, formerly consid~
ered illegal in some jurisdictions . In 1967, the U.S.
Supreme Court held that laws banning interracial mar
riages are unconstitutional. Loving V. Virginia, 388 U.S.
1,87 S.Ct. 1817 (1967). But for years, such laws techni
cally remained on the books in some states. The last
remaining state~law ban on interracial marriages was
a provision in the Alabama constitution. The Alabama
legislature voted to repeal the ban, subject to a vote of
the state's citizens, in 1999; the repeal became effective
in 2000. -Also termed mixed interracial
marriage. [Cases: Criminal Law
miscellaneous itemized deduction. See DEDUCTION,
mischarge. (1939) An erroneous jury instruction that
may be grounds for reversing a verdict. Also termed
misdirection.
mischief (mis~chaf). (14c) 1. A condition in which a
person suffers a wrong or is under some hardship, esp.
one that a statute seeks to remove or for which equity
provides a remedy <this legislation seeks to eliminate
the mischief of racially restrictive deed covenants>. 2.
Injury or damage caused by a specific person or thing
<the vandals were convicted ofcriminal mischief>. 3.
The act causing such injury or damage <their mischief
damaged the abbey>.
mischief rule. (1974) In statutory construction, the
doctrine that a statute should be interpreted by first
identifying the problem (or "mischief") that the statute
was designed to remedy and then adopting a construc
tion that will suppress the problem and advance the
remedy. -Also termed rule in Heydon's Case; purpose
approach. Cf. GOLDEN RULE; PLAIN~MEANING RULE;
1089 misdemeanor
EQUITY-OF-THE-STATUTE RULE. [Cases: Statutes
184.]
misconduct (mis-kon-d~kt). (l7c) 1. A dereliction of
duty; unlawful or improper behavior.
affirmative misconduct. (1897) 1. An affirmative act of
misrepresentation or concealment ofa material fact;
intentional wrongful behavior. -Some courts hold
that there must be an ongoing pattern of misrepre
sentation or false promises, as opposed to an isolated
act of providing misinformation. 2. With respect to
a claim ofestoppel against the federal government,
a misrepresentation or concealment of a material
fact by a government employee -beyond a merely
innocent or negligent misrepresentation. [Cases:
Estoppel C-::;;:'62.2(3, 4).]
juror misconduct. (1954) A juror's violation of the
court's charge or the law, committed either during
trial or in deliberations after trial, such as (1) com
municating about the case with outsiders, witnesses,
attorneys, bailiffs, or judges, (2) bringing into the
jury room information relating to the case but not
in evidence, and (3) conducting experiments regard
ing theories of the case outside the court's presence.
[Cases: Criminal Law (:::;)855; Federal Courts
1974; Trial (:::;::,304-311.]
misconduct in office. See official misconduct.
official misconduct. (1830) A public officer's corrupt
violation of assigned duties by malfeasance, misfea
sance, or nonfeasance. Also termed misconduct
in office; misbehavior in office: malconduct in office;
misdemeanor in office: corruption in office: official
corruption; political corruption. [Cases: Officers and
Public Employees (;=, 121.]
wanton misconduct. (1844) An act, or a failure to act
when there is a duty to do so, in reckless disregard
ofanother's rights, coupled with the knowledge that
injury will probably result. -Also termed wanton
and reckless misconduct. [Cases: Negligence
275.)
willful and wanton misconduct. (1866) Conduct com
mitted with an intentional or reckless disregard for
the safety ofothers, as by failing to exercise ordinary
care to prevent a known danger or to discover a
danger. Also termed willful indifference to the
safety ofothers. [Cases: Automobiles (::::::) 181(1): Neg
ligence (;:::>275.]
willful misconduct. (1804) Misconduct committed
voluntarily and intentionally. (Cases: Carriers
307(6.1); Negligence (:::;::,275; Unemployment Com
pensation (:::;::,65.]
"This term of art [willful misconduct] has defied definition,
but it is clear that it means something more than neg
ligence. Two classic examples of misconduct which will
defeat the seaman's claim are intoxication and venereal
disease." Frank L. Maraist, Admiralty in a Nutshell 185-86
(3d ed. 1996).
willful misconduct ofan employee. (1884) The delib
erate disregard by an employee of the employer's
interests, including its work rules and standards of conduct, justifying a denial of unemployment com
pensation if the employee is terminated for the mis
conduct. [Cases: Unemployment Compensation
65.]
2. An attorney's dishonesty or attempt to persuade
a court or jury by using deceptive or reprehensible
methods. (Cases: Criminal Law(:::;::, 1980-2210; Federal
Civil Procedure (:::;::, 1970; Trial ('::::> 113.]
miscontinuance. (16c) A continuance erroneously
ordered by a court.
miscreant (mis-kree-ant). (l4c) 1. A wrongdoer. 2. An
apostate; an unbeliever.
misdate. (16c) To erroneously date (a document, etc.).
misdelivery. (1867) Delivery not according to contrac
tual specifications; esp. delivery to the wrong person
or delivery of goods in a damaged condition . This
concept applies to contracts ofcarriage and contracts of
sale, lease, etc., requiring delivery in some form. [Cases:
Carriers (:::;::,93; Shipping <:--::;;:, 117.)
misdemeanant (mis-d~-mee-n~nt), n. (1819) A person
who has been convicted of a misdemeanor.
misdemeanor (mis-di-mee-n~r). (I6c) 1. A crime that
is less serious than a felony and is usu. punishable by
fine, penalty, forfeiture, or confinement (usu. for a brief
term) in a place other than prison (such as a county
jail). Also termed minor crime; summary offense. Cf.
FELONY (1). [Cases: Criminal Law C~27.l
"'Misdemeanor' was the label ultimately adopted to apply
to all offenses other than treason or felony. The term
included a wide variety ofwrongs and misprisions. Many of
the substantive legal principles and procedures applicable
to felonies were not applied in the case of misdemeanors.
The difference in treatment between felonies and misde
meanors has carried over from common law to current
practice. and today misdemeanors are often treated differ
ently than felonies [in) the procedures employed in trying
such cases as well as [in) the consequences of a conviction.
The traditional distinction between felonies and misde
meanors has been abolished in England." Rollin M. Perkins
&Ronald N. Boyce, Criminal Law 15 (3d ed. 1982).
gross misdemeanor. 08c) A serious misdemeanor,
though not a felony. Also termed high misde
meanor.
high misdemeanor. l. Hist. English law. A crime that
ranked just below high treason in seriousness . In
English law, the term was essentially synonymous
with crime. Examples of crimes called high misde
meanors are riot and conspiracy. In early American
law, the term had the same meaning as in English law
and was used in defining crimes such as sedition. 2.
See gross misdemeanor. 3. See serious misdemeanor.
serious misdemeanor. (1893) One of a class of mis
demeanors having more severe penalties than most
other misdemeanors . Conduct rising to the level of
a serious misdemeanor can, in some jurisdictions,
be charged as either a felony or a misdemeanor.
Also termed high misdemeanor; indictable mis
demeanor; penitentiary misdemeanor; aggravated
misdemeanor.
1090 misdemeanor in office
treasonable misdemeanor. See TREASO:-.rABLE MISDE
MEANOR.
2. Archaic. Any crime, including a felony.
"A crime, or misdemeanor, is an act committed, or omitted,
in violation of a public law, either forbidding or command
ing it. This general definition comprehends both crimes
and misdemeanors; which, properly speaking, are mere
synonymous terms: though, in common usage, the word,
'crimes,' is made to denote such offences as are of a deeper
and more atrocious dye, while smaller faults, and omis
sions of less consequence, are comprised under the gentler
names of 'misdemeanors' only." 4 William Blackstone, Com
mentaries on the Laws of England 5 (1769).
misdemeanor in office. See official misconduct under
MISCONDUCT.
misdemeanor manslaughter. See MANSLAUGHTER.
misdemeanor-manslaughter rule. (1967) The doctrine
that a death occurring during the commission of a
misdemeanor (or sometimes a nondangerous felony)
is involuntary manslaughter. -Many states and the
Model Penal Code have abolished this rule. Cf. FELONY
MURDER RULE. [Cases: Homicide 0-'-::620-652.]
"Companion to the felony-murder rule is the so-called mis
demeanor-manslaughter rule!:l ... Homicide resulting from
the perpetration or attempted perpetration of an unlawful
act, less than a dangerous felony, is manslaughter if the
unlawful act is malum in se." Rollin M. Perkins & Ronald N.
Boyce, Criminal Law 108 (3d ed. 1982).
misdescription. (1848) L A contractual error or falSity
that deceives, injures, or materially misleads one ofthe
contracting parties. 2. A bailee's inaccurate identifica
tion, in a document oftitle, ofgoods received from the
bailor. 3. An inaccurate description of land in a
deed. [Cases: Deeds
misdirection. See MISCHARGE.
mise (meez or mIZ), n. [Law French] Hist. 1. Expenses
incurred in litigation. 2. The general issue in a writ of
right. -When a tenant pleads superior title to the plain
tiff, the tenant is said to join the mise on the mere right.
3. A settlement; a compromise, as in the Mise ofLewes
between Henry III and the rebelling barons.
mise money. Hist. Money paid by contract to purchase
a privilege.
miserabile depositum (miz-;>-rab-;>-lee di-poz-;>-t;>m).
[Law Latin "a pitiful deposit"] Civil law. A deposit or
bailment made in an emergency, as in a shipwreck, fire,
or insurrection.
miserere (miz-a-reer-ee). [Latin] Hist. Have mercy.
This is the first phrase of the 51st psalm, used to test a
person claiming benefit ofclergy. See NECK VERSE.
misericordia (miz-;>-ri-kor-dee-a). [Law Latin] Hist.
1. Mercy. 2. An arbitrary fine as a punishment. 3. An
exemption from a fine.
misericordia communis (miz-;>-ri-kor-dee-;> k;>-myoo
nis). [Law LatinJ Hist. A fine levied on a whole
county.
misfeasance (mis-fee-z;>nts), n. (16c) 1. A lawful act
performed in a wrongful manner. [Cases: Negligence
{~200.J 2. More broadly, a transgression or trespass; MALFEASANCE. Cf. NONFEASANCE. --misfeasant,
adj. -misfeasor, n.
misfeasance in public office. (1880) The tort of excessive,
malicious, or negligent exercise ofstatutory powers by
a public officer. Also termed malfeasance. [Cases:
Officers and Public Employees (::::::> 116.]
mishering. See MISKERING.
mishersing. See MISKERING.
misjoinder (mis-joyn-d;>r). (I8c) 1. The improper union
of |
.
misjoinder (mis-joyn-d;>r). (I8c) 1. The improper union
of parties in a civil case. See JOINDER. Cf. DlSJOINDER;
NONJOINDER. [Cases: Federal Civil Procedure (::::::>387;
Parties (::::::>85, 89.J 2. The improper union of offenses
in a criminal case. [Cases: Indictment and Informa
tion 126.J
miskenning (mis-ken-ing). [fro French misw "wrong" +
Saxon cennan "to declare"J 1. A wrongful summons.
2. A pleading mistake or irregularity.
"But every defeated plaintiff could be amerced 'for a false
claim.' Incidentally too any falsehood ... that is, anyfraudu
lent misuse of the machinery ofthe law, would be punished
by imprisonment. Then again every default in appearance
brought an amercement on the defaulter and his pledges.
Every mistake in pleading, every miskenning . .. brought
an amercement on the pleader if the mistake was to be
retrieved. A litigant who hoped to get to the end of his suit
without an amercement must have been a sanguine man;
for he was playing a game of forfeits." 2 Frederick Pollock
& Frederic W. Maitland, The History of English Law Before
the Time ofEdward I 519 (2d ed. 1899).
miskering (mis-k;>r-ing). Hist. Freedom or immunity
from amercement. - Also termed abishering; abishers
ing; mishering; mishersing.
mislaid property. See PROPERTY.
mislay, vb. (15c) To deposit (property, etc.) in a place
not afterwards recollected; to lose (property, etc.) by
forgetting where it was placed. See mislaid property
under PROPERTY.
misleading, adj. (l6c) (Of an instruction, direction, etc.)
delusive; calculated to be misunderstood. [Cases: Fraud
13(1)-1
misnomer (mis-noh-m;>r). (l5c) A mistake in naming
a person, place, or thing, esp. in a legal instrument.
-In federal pleading -as well as in most states
misnomer of a party can be corrected by an amend
ment, which will relate back to the date ofthe original
pleading. Fed. R. Civ. P. 15(c)(3). [Cases: Federal Civil
Procedure (::::::> 382; Limitation of Actions (::::::> 121(2);
Parties (;::::>94, 95(3).]
misperformance. (17c) A faulty attempt to discharge an
obligation (esp. a contractual one). Cf. PERFORMANCE;
NONPERFORMAKCE.
mispleading. (16c) Pleading incorrectly. - A party who
realizes that its pleading is incorrect can usu. amend
the pleading, as a matter of right, within a certain
period, and can thereafter amend with the court's
permission.
misprision (mis-prizh-;>n). (15c) 1. Concealment or non
disclosure of a serious crime by one who did not par
1091
ticipate in the crime. [Cases: Compounding Offenses
~l.]
clerical misprision. (I8c) A court clerk's mistake or
fraud that is apparent from the record.
misprision offelony. (l6c) Concealment or nondisclo
sure of someone else's felony. See 18 USCA 4. [Cases:
Compounding Offenses C;;,) 1.1.]
"In fact, whatever the law may be, it is not the general
custom to prosecute for misprision of felony, even where
a person who knows of a felony is questioned by the
pOlice and refuses to make a statement. Indeed, Stephen,
writing in the nineteenth century, regarded the offence as
'practically obsolete'; and American courts have refused !
to recognise it as subsisting, But there have been four suc
cessful prosecutions in England during the last quarter
century ... ," Glanville Williams, Criminal Law 424 (2d i
ed.1961).
misprision oftreason. (16c) Concealment or nondis
closure of someone else's treason. [Cases: Treason
negative misprision. (I8c) 1he wrongful concealment
of something that should be revealed <misprision of
treason>.
positive misprision. (I8c) The active commission of a
wrongful act <seditious conduct against the govern- i
ment is positive misprision>.
2. Seditious conduct against the government. 3. An
official's failure to perform the duties of public office.
[Cases: Officers and Public Employees Cd121.]4. Mis
understanding; mistake.
'The word 'misprision' has been employed with different
meanings. While Blackstone thought of it as referring to i
a grave misdemeanor, it seems to have been used earlier '
to indicate the entire field of crime below the grade of
treason or felony before the word 'misdemeanor' became
the generally accepted label for this purpose. More recently
it has been said: 'Misprision is nothing more than a word
used to describe a misdemeanor which does not possess
a specific name: [United States v. Perlstein, 126 F.2d 789,
798 (3d Or. 1942).1 It has been associated with two specific
offenses, and only these, from the earliest times, They
are misprision of treason and misprision of felony, which
consist of the criminal default of one in regard to the crime
of another." Rollin M. Perkins & Ronald N. Boyce, Criminal
Law 572 (3d ed, 1982).
misprisor (mis-prI-zar). One who commits mispriSion
of felony.
misreading. An act of fraud in which a person incor
rectly reads the contents of an instrument to an illiter
ate or blind person with the intent to deceitfully obtain
that person's signature. [Cases: Fraud (~4.5.1
misrecital. (16c) An incorrect statement of a factual
matter in a contract, deed, pleading, or other instru
ment.
misrepresentation, n. (l7c) 1. The act of making a false
or misleading assertion about something, usu. with the
intent to deceive . The word denotes not just written or
spoken words but also any other conduct that amounts
to a false assertion. [Cases: Fraud ~9.1 2. The asser
tion so made; an assertion that does not accord with
the facts. Also termed false representation; (redunmisrepresentation
dantly) false misrepresentation. Cf. REPRESENTATION
(1). -misrepresent, vb.
"A misrepresentation, being a false assertion of fact,
commonly takes the form of spoken or written words.
Whether a statement is false depends on the meaning of
the words in all the circumstances, including what may
fairly be inferred from them. An assertion may also be
inferred from conduct other than words, Concealment or
even non-disclosure may have the effect of a misrepre
sentation . .. [AJn assertion need not be fraudulent to
be a misrepresentation. Thus a statement intended to be
truthful may be a misrepresentation because of ignorance
or carelessness, as when the word 'not' is inadvertently
omitted or when inaccurate language is used. But a misrep
resentation that is not fraudulent has no consequences ...
unless it is material." Restatement (Second) of Contracts
159 cmt. a (1979).
fraudulent misrepresentation. (18c) A false statement
that is known to be false or is made recklessly
without knOWing or caring whether it is true or
false and that is intended to induce a party to det
rimentally rely on it. Also termed fraudulent rep
resentation; deceit. [Cases: Fraud ~8.j
"A misrepresentation is fraudulent if the maker intends
his assertion to induce a party to manifest his assent and
the maker (a) knows or believes that the assertion is not in
accord with the facts, or (b) does not have the confidence
that he states or implies in the truth of the assertion, or
(c) knows that he does not have the basis that he states or
implies for the assertion." Restatement (Second) of Con
tracts 162(1) (1979).
innocent misrepresentation. (1809) A false statement
that the speaker or writer does not know is false; a
misrepresentation that, though false, was not made
fraudulently. [Cases: Fraud C=,13(2).]
material misrepresentation. (I8c) 1. Contracts. A false
statement that is likely to induce a reasonable person
to assent or that the maker knows is likely to induce
the recipient to assent. [Cases: Contracts C:-:>94.J 2.
Torts. A false statement to which a reasonable person
would attach importance in deciding how to act in the
transaction in question or to which the maker knows
or has reason to know that the recipient attaches some
importance. See Restatement (Second) of Torts 538
(1979). [Cases: Fraud ~18.]
"The materiality of a misrepresentation is determined
from the viewpoint of the maker, while the justification
of reliance is determined from the viewpoint of the reCipi
ent.... The requirement of materiality may be met in
either of two ways. First, a misrepresentation is material
if it would be likely to induce a reasonable person to
manifest his assent. Second, it is material if the maker
knows that for some special reason it is likely to induce
the particular recipient to manifest his assent, There may
be personal considerations that the recipient regards as
important even though they would not be expected to
affect others in his situation, and if the maker is aware of
this the misrepresentation may be material even though
it would not be expected to induce a reasonable person
to make the proposed contract. One who preys upon
another's known idiosyncrasies cannot complain if the
contract is held voidable when he succeeds in what he is
endeavoring to accomplish ... , Although a nonfraudulent
misrepresentation that is not material does not make the
contract voidable under the rules stated in this Chapter,
the reCipient may have a claim to relief under other rules,
such as those relating to breach of warranty." Restatement
(Second) of Contracts 162 cmt. C (1979).
misrepresentation ofsource. See PASSING OFF.
negligent misrepresentation. (1888) A careless or inad
vertent false statement in circumstances where care
should have been taken. [Cases: Fraud C=:> 13(3).]
misrepresentee. A person to whom a fact has been mis
represented.
misrepresenter. A person who misrepresents a fact to
another. -Also spelled misrepresentor.
Missile Defense Agency. A unit in the U.S. Department
of Defense responsible for developing and deploying
a missile-defense system capable of protecting the
United States, its armed forces, and others from missile
attack. Abbr. MDA.
missilia (mi-sI-lee-<J), n. pl. [fro Latin mit/ere "to throw"]
Roman law. Money that the praetors, consuls, or
wealthy individuals throw as gifts to people on the
street; largesse.
missing-evidence rule. (198l) The doctrine that, when
a party fails at trial to present evidence that the party
controls and that would have been proper to present,
the jury is entitled to infer that the evidence would have
been unfavorable to that party. [Cases: Evidence
74.]
missing person. 1. Someone whose whereabouts are
unknown and, after a reasonable time, seem to be
unascertainable. 2. Someone whose continuous and
unexplained absence entitles the heirs to petition a
court to declare the person dead and to divide up the
person's property. See SEVEN-YEARS'-ABSENCE RULE. Cf.
DISAPPEARED PERSON. [Cases: Death
missing ship. Maritime law. A vessel that has been gone
for an unreasonably long time, leading to the presump
tion that it is lost at sea; esp. a vessel that has been gone
longer than the average time it takes a vessel to make a
similar voyage in the same season.
missing-witness rule. (1961) The doctrine that, when a
party fails at trial to present a witness who is available
only to that party and whose testimony would have
been admissible, the jury is entitled to infer that the
witness's testimony would have been unfavorable to
that party. [Cases: Criminal Law C=:>317; Evidence C=:>
77; Trial C=:>211.J
missio in bona (mis[hJ-ee-oh in boh-n<'l). [Latin] Roman
law. 1. A praetor's grant to a creditor ofindividual items
ofthe judgment debtor's property already in the credi
tor's possession. 2. A praetor's grant to a creditor in
possession of the debtor's whole estate, as a form of
execution ofjudgment.
missio in possessionem (mis[hJ-ee-oh in pa-zes[h]-ee
oh-n<'lm). [Latin] Roman law. A praetor's grant to a
creditor ofthe debtor's entire estate as a form ofexecu
tion ofjudgment.
mistake, n. (17c) 1. An error, misconception, or misun
derstanding; an erroneous belief. See ERROR. 2. Con
tracts. The situation in which either (1) the parties to
a contract did not mean the same thing, or (2) at least
one party had a belief that did not correspond to the facts or law . As a result, the contract mav be voidable.
[Cases: Contracts ~93.] .
"In this Restatement the word 'mistake' is used to refer to
an erroneous belief. A party's erroneous belief is there
fore said to be a 'mistake' of that party. The belief need
not be an articulated one, and a party may have a belief
as to a fact when he merely makes an assumption with
respect to it, without being aware of alternatives. The
word 'mistake' is not used here, as it is sometimes used
in common speech. to refer to an improvident act, i nclud |
'mistake' is not used here, as it is sometimes used
in common speech. to refer to an improvident act, i nclud
ing the making of a contract, that is the result of such an
erroneous belief. This usage is avoided here for the sake of
clarity and consistency. Furthermore, the erroneous belief
must relate to the facts as they exist at the time of the
making of the contract. A party's prediction or judgment
as to events to occur in the future, even if erroneous, is
not a 'mistake' as that word is defined here. An errone
ous belief as to the contents or effect of a writing that
expresses the agreement is, however, a mistake. Mistake
alone, in the sense in which the word is used here. has no
legal consequences. The legal consequences of mistake
in connection with the creation of contractual liability are
determined by [substantive rules] ," Restatement (Second)
of Contracts 151 emt. a (1979).
"The word mistake is generally used in the law of contracts
to refer to an erroneous belief -'a belief that is not in
accord with the facts.' To avoid confUSion. it should not
be used. as it sometimes is in common speech, to refer to
an improvident act, such as the making of a contract, that
results from such an erroneous belief. Nor should it be
used. as it sometimes is by courts and writers, to refer to
what is more properly called a misunderstanding. a situ
ation in which two parties attach different meanings to
their language." E. Allan Farnsworth, Contracts 9.2, at 619
(3d ed. 1999) (quoting Restatement (Second) of Contracts
151 (3d ed. 1979)).
basic mistake. A mistake offact or oflaw constituting
the basis on which a transaction rests.
bilateral mistake. See mutual mistake (1).
collateral mistake. See unessential mistake.
common mistake. See mutual mistake (2).
essential mistake. (1818) Contracts. A mistake serious
enough that no real consent could have existed, so
that there was no real agreement. [Cases: Contracts
G~93.1
inessential mistake. See unessential mistake.
mistake offact. (1808) 1. A mistake about a fact that
is material to a transaction; any mistake other than a
mistake oflaw. -Also termed error in fact; error of
fact. [Cases: Contracts 2. "The defense assert
ing that a criminal defendant acted from an innocent
misunderstanding offact rather than from a criminal
purpose.
mistake oflaw. (I8c) L A mistake about the legal effect
ofa known fact or situation. -Also termed error in
law; error oflaw. [Cases: Contracts G=;)93(4).] 2. The
defense asserting that a defendant did not understand
the criminal consequences ofcertain conduct. This
defense is generally not as effective as a mistake of
fact.
mutual mistake. (I8c) 1. A mistake in which each party
misunderstands the other's intent. Also termed
bilateral mistake. [Cases: Contracts C=:>93(S).] 2. A
mistake that is shared and relied on by both parties
to a contract. A court will often revise or nullify a
contract based on a mutual mistake about a material
term. Also termed (in sense 2) common mistake.
[Cases: Contracts (:::J93(5); Reformation ofInstru
ments (;:::: 19.J
"The term 'common mistake' is more usually, but less
grammatically, referred to as 'mutual mistake'. Cheshire
and Fifoot on Contract have made a heroic effort to intra
duce and establish the more correct term, and it does seem
to be gaining ground. However, the beginner is warned
that the term 'mutual mistake' is nearly always used by
the Courts to mean what we here call 'common mistake'."
P.S. Atiyah, An Introduction to the Law ofContract 190 n.7
(3d ed. 1981).
nonessential mistake. See unessential mistake.
unessential mistake. (1928) Contracts. A mistake that
does not relate to the nature of the contents of an
agreement, but only to some external circumstance,
so that the mistake has no effect on the validity of
the agreement. Also termed inessential mistake;
nonessential mistake; collateral mistake. [Cases: Con
tracts
unilateral mistake. (1885) A mistake by only one party
to a contract. A unilateral mistake is generally not
as likely to be a ground for VOiding the contract as is
a mutual mistake. [Cases: Contracts C::>93.]
mistakenly induced revocation. See DEPENDENT RELA
TIVE REVOCATION.
mistery (mist~r-ee). Hist. A business; a trade. Also
spelled mystery.
mistrial. (17c) 1. A trial that the judge brings to an end,
without a determination on the merits, because of a
procedural error or serious misconduct occurring
during the proceedings. [Cases: Criminal Law G=>867;
Federal Civil Procedure (;::::> 1951; Trial c";:=:} 18, 133.1,
304.] 2. A trial that ends inconclusively because the
jury cannot agree on a verdict. -Also termed abortive
trial. [Cases: Criminal Law (;::::;867.]
misunderstanding. (Bc) 1. A flawed interpretation of
meaning or significance. 2. A situation in which the
words or acts oftwo people suggest assent, but one or
both ofthem in fact intend something different from
what the words or acts express. 3. A quarrel; an instance
ofusu. mild wrangling.
misuse, n. (14c) 1. Products liability. A defense alleging
that the plaintiff used the product in an improper,
unintended, or unforeseeable manner. [Cases: Products
Liability C:::c 182.] 2. Patents. The use ofa patent either
to improperly extend the granted monopoly to non
patented goods or to violate antitrust laws. [Cases:
Patents (:::J283(l).]
misuser. (17c) An abuse ofa right or office, as a result of
which the person having the right might lose it <it is
an act of misuser to accept a bribe>. Cf. USER. [Cases:
Officers and Public Employees (:::J64.]
mitigate (mit-a-gayt), vb. (15c) To make less severe or
intense <the fired employee mitigated her damages
for wrongful termination by accepting a new job>. Cf. MILITATE. -mitigation, n. mitigatory (mit-~-g~
tor-ee), adj.
mitigating circumstance. See CIRCUMSTANCE.
mitigation cost. See COST (1).
mitigation-of-damages doctrine. (1978) The princi
ple requiring a plaintiff, after an injury or breach of
contract, to make reasonable efforts to alleviate the
effects of the injury or breach. Ifthe defendant can
show that the plaintiff failed to mitigate damages, the
plaintiff's recovery may be reduced. Also termed
avoidable-consequences doctrine. Cf. DOCTRINE OF
CONSTRUCTIVE SERVICE (2). [Cases: Damages (:::J62.]
mitigation ofpunishment. (18c) Criminal law. A reduc
tion in punishment due to mitigating circumstances
that reduce the criminal's level of culpability, such as
the existence of no prior convictions. See mitigating
circumstance under CIRCUMSTANCE.
mitigator. A factor tending to show that a criminal
defendant, though guilty, is less culpable than the act
alone would indicate <the fact that he was coerced into
taking part in the robbery may have been a mitigator
in the minds ofthe jurors>. Cf. AGGRAVATOR. [Cases:
Sentencing and Punishment C=>54.]
mitiori sensu. See IN MITIORI SENSU.
mitter avant (mit-<'lf ~-vant), vb. [Law French] Hist. To
present or produce (evidence, etc.) to a court.
mittimus (mit-<'l-m<'ls). [Law Latin "we send") Hist. 1.
A court order Of warrant directing a jailer to detain
a person until ordered otherwise; COMMITMENT (4).
[Cases: Sentencing and Punishment C-:::>462, 463.] 2.
A certified transcript ofa prisoner's conviction or sen
tencing proceedings. 3. A writ directing the transfer of
records from one court to another. PI. mittimuses.
mixed action. See ACTION (4).
mixed blood. See BLOOD.
mixed cognation. See COGNATION.
mixed condition. See CONDITION (2).
mixed contract. See CONTRACT.
mixed cost. See COST (1).
mixed government. See GOVERNMENT.
mixed insurance company. See INSURANCE COMPANY.
mixed interpretation. See liberal interpretation under
INTERPRETATION.
mixed jury. See JURY.
mixed larceny. See LARCENY.
mixed law. A law concerning both persons and
property.
mixed marriage. See MISCEGENATION.
mixed-motive doctrine. Employment law. The principle
that, when the evidence in an employment-discrimi
nation case shows that the complained-of employment
action was based in part on a nondiscriminatory reason
and in part on a discriminatory reason, the plaintiff
must show that discrimination was a motivating factor
for the employment action and, if the plaintiff makes
that showing, then the defendant must show that it
would have taken the same action without regard to the
discriminatory reason. [Cases: Civil Rights C=>1137.]
mixed nuisance. See NUISANCE.
mixed policy. See INSURANCE POLICY.
mixed presumption. See PRESUMPTION.
mixed property. See PROPERTY.
mixed question. (lSc) L MIXED QUESTION OF LAW AND
FACT. 2. An issue involving conflicts of foreign and
domestic law.
mixed question oflaw and fact. (1S05) An issue that
is neither a pure question of fact nor a pure question
of law. Mixed questions of law and fact are typi
cally resolved by juries. -Often shortened to mixed
question. -Also termed mixed question offact and
law. [Cases: Administrative Law and Procedure
781; Appeal and Error C=>S42(9); Criminal Law
735; Federal Courts Trial Cr~137.]
"Many issues in a lawsuit involve elements of both law and
fact. Whether these be referred to as mixed questions of
law and fact, or legal inferences from the facts, or the
application of law to the facts, there is substantial authority
that they are not protected by the 'clearly erroneous' rule
and are freely reviewable. This principle has been applied
to antitrust violations, bankruptcy, contracts, copyright,
taxation, and to other areas of the law." 9A Charles Alan
Wright & Arthur R. Miller, Federal Practice and Procedure
2589, at 608-11 (2d ed. 1995).
mixed tithes. See TITHE.
mixed treaty. See TREATY (1).
mixed trust. See TRUST.
mixed war. See WAR.
mixtion (miks-chan). Archaic. 1. The process ofmixing
products together so that they can no longer be sepa
rated. 2. The product of mixing.
mixtum imperium (miks-ti'lm im-peer-ee-am). [Latin]
Rist. Mixed authority; mixed jurisdiction . This term
refers to the power of subordinate civil magistrates.
M]OA. abbr. MOTION FOR JUDGMENT OF ACQUITTAL.
MLA. abbr. MOTION FOR LEAVE TO APPEAL.
MMBtu. Abbr. Oil & gas. One million British thermal
units, one ofthe standard units for measuring natural
gas.
MMI. abbr. MAXIMUM MEDICAL IMPROVEMENT.
M'Naghten rules. See MCNAGHTEN RULES.
M'Naughten rules. See MCNAGHTEN RULES.
M.O. abbr. MODUS OPERANDI.
mobile goods. See GOODS.
Mobile-Sierra doctrine. The principle that the Federal
Energy Regulatory Commission may not grant a rate
increase to a natural-gas producer unless the produc
er's contract authorizes a rate increase, or unless the
existing rate is so low that it may adversely affect the
public interest (as by threatening the continued viabil
ity of the public utility to continue its service). United Gas Pipe Line Co. v. Mobile Gas Servo Corp., 350 U.S.
332,76 S.Ct. 373 (1956); Federal Power Comm'n v. Sierra
Pac. Power Co., 350 D.S. 348, 76 S.Ct. 368 (1956).
Also termed Sierra-Mobile doctrine. [Cases: Gas C=~
14.4(1).]
mobilia (moh-bil-ee-i'l), n. pI. [Latin "movables"] Roman
law. Movable things . The term primarily refers to
inanimate objects but sometimes also refers to slaves
and animals.
mobilia sequuntur personam (moh-bil-ee-a si-kwdn
tar pdr-soh-nam). [Latin] Int'llaw. Movables follow
the person -Le., the law of the person. This is the
general principle that rights ofownership and transfer
of movable property are determined by the law of the
owner's domicile. [Cases: Property C=>6; Taxation
2211.]
"The maxim mobilia sequuntur personam is the excep
tion rather than the rule, and is probably to be confined
to certain special classes of general assignments such
as marriage settlements and devolutions on death and
bankruptcy." Handel v. S/atford, 1953 Q.B. 248, 257 (Eng.
C.A.).
"Under the influence of Savigny many Continental systems
in the mid-nineteenth century led the way for Anglo-Amer
ican law in limiting the operation |
igny many Continental systems
in the mid-nineteenth century led the way for Anglo-Amer
ican law in limiting the operation of the doctnne of mobilia
sequuntur personam to universal assignments of movables,
adopting for particular assignments the single principle
of the lex situs of the movable." R.H. Graveson, Conflict of
Laws 457 (7th ed. 1974).
mock trial. (18c) 1. A fictitious trial organized to allow
law students, or sometimes lawyers, to practice the
techniques of trial advocacy. 2. A fictitious trial,
arranged by a litigant's attorney, to assess trial strategy,
to estimate the case's value or risk, and to evaluate the
case's strengths and weaknesses . In this procedure,
people from the relevant jury pool are hired to sit as
mock jurors who, after a condensed presentation of
both sides, deliberate and reach a verdict (often while
being observed by the participants behind a one-way
glass). The jurors may later be asked specific ques
tions about various arguments, techniques, and other
issues. Because the mock jurors usu. do not know which
side has hired them, their candid views are thought
to be helpful in formulating trial strategies. Cf. MOOT
COl:RT.
modal legacy. See LEGACY.
mode. (l7c) A manner of doing something <mode of
proceeding> <mode ofprocess>.
model act. (1931) A statute drafted by the National
Conference of Com missioners on Uniform State Laws
and proposed as gUideline legislation for the states to
borrow from or adapt to suit their individual needs .
Examples of model acts include the Model Employment
Termination Act and the Model Punitive Damages Act.
Cf. UNIFORM LAW; UNIFORM ACT.
Model Code of Professional Responsibility. A set of
gUidelines for lawyers, organized in the form of canons,
diSciplinary rules, and ethical considerations . Pub
lished by the ABA in 1969, this code has been replaced
in most states by the Model Rules of Professional
1095
Conduct as the ethical standards by which lawyers are
regulated and disciplined, although the Model Code
continues to be used to interpret and apply the Model
Rules. [Cases: Attorney and Client (;::::> 32(2).]
model jury charge. See model jury instruction under
JURY INSTRUCTION.
model juryinstruction. See fURY INSTRUCTION.
Model Marriage and Divorce Act. See UNIFORM
MARRIAGE AND DIVORCE ACT.
Model Penal Code. A proposed criminal code drafted
by the American Law Institute and used as the basis for
criminal-law revision by many states. -Abbr. MPC.
Model Penal Code test. See SUBSTANTIAL-CAPACITY
TEST.
Model Putative Fathers Act. See UNIFORM PUTATIVE
AND UNKNOWN FATHERS ACT.
Model Rules of Professional Conduct. A set ofethical
guidelines for lawyers, organized in the form of 52
rules some mandatory, some discretionary
together with explanatory comments. -Published by
the ABA in 1983, these rules have generally replaced
the Model Code of Professional Responsibility and have
been adopted as law, sometimes with modifications, by
most states. The Model Code of Professional Respon
sibility is sometimes used to interpret and apply the
Model Rules. [Cases: Attorney and Client (;::::>32(2).]
Model State Trademark Bill. A proposed statute intended
to standardize trademark laws among the states. -The
bill was first promulgated by the International Trade
mark Association (then called the United States Trade
mark Association) in 1949. -Abbr. MSTB.
model statute. See uniform statute under STATUTE.
moderamen inculpatae tutelae (moh-da-ray-man in-kal
pay-tee t[y]oo-tee-lee). 1. [Law Latin] Hist. The degree
offorce justified in self-defense. 2. A plea ofjustifiable
self-defense. -Also termed inculpatae tutelae mod
eratio (mod-a-ray-shee-oh).
moderate castigavit (mod-a-ray-tee kas-ta-gay-vit).
[Latin "he moderately chastised"] Hist. A plea justify
ing a trespass because it is really a chastisement that the
defendant is legally entitled to inflict on the plaintiff
because of their relationship.
moderate force. See nondeadly force under FORCE.
moderator. (16c) 1. One who presides at a meeting or
assembly. See CHAIR (1). 2. Scots law. The person who
presides in a public assembly; specif., the elected chair
of the General Assembly of the Church of Scotland or
another Presbyterian church, of a presbytery, or of a
kirk session.
modiatio (moh-dee-ay-shee-oh), n. [Latin] Hist. A duty
paid for every tierce ofwine. See PRISAGE.
modica differentia (mod-i-k<:l dif-<:l-ren-shee-<:l). [Latin]
Scots law. A moderate difference, esp. in price.
modification. (l7c) 1. A change to something; an altera
tion <a contract modification>. [Cases: Contracts
236.]2. A qualification or limitation of something <a Modus Tenendi Pariiamentum
modification of drinking habits>. 3. Parliamentary
law. A change in a motion that its mover initiates or
accepts, usu. before the chair has stated the motion.
_ The mover controls a motion only until the chair
states the question, after which the motion belongs to
the assembly and the mover cannot modify it without
the assembly's permission. See request for permission
to modify a motion under REQUEST.
modification order. Family law. A post-divorce order
that changes the terms ofchild support, custody, visita
tion, or alimony. _ A modification order may be agreed
to by the parties or may be ordered by the court. The
party wishing to modify an existing order must show
a material change in circumstances from the time
when the order sought to be modified was entered. See
CHANGE IN CIRCUMSTANCES. [Cases: Child Custody
C'='661; Child Support (;:::)342; Divorce (;:::>245(3).J
Modified Accelerated Cost Recovery System. See
ACCELERATED COST RECOVERY SYSTEM.
modified-comparative-negligence doctrine. See
50-PERCENT ReLE.
modius (moh-dee-<:ls), n. [Latin "a measure"] Hist. 1. A
bushel. 2. An uncertain measure, as of land.
modo et forma (moh-doh et for-rna). [Latin] In manner
and form. -In common-law pleading, this phrase
began the conclusion of a traverse. Its object was to
put the burden on the party whose pleading was being
traversed not only to prove the allegations of fact but
also to establish as correct the manner and form ofthe
pleading. - Also termed manner andform.
modus (moh-d<:ls), n. [Latin "mode"]l. Criminal pro
cedure. The part of a charging instrument describing
the manner in which an offense was committed. 2.
Roman & civil law. Mode; manner; consideration, esp.
the manner in which a gift, bequest, servitude, etc. is to
be employed. 3. Eccles. law. See DE MODO DECIMANDI.
Cf. MODUS OPERANDI.
modus decimandi (moh-d<:ls des-a-man-dI). See DE
i
MODO DECIMANDI.
modus de non decimando (moh-das dee non des-<:l-man
doh). See DE NON DECIMANDO.
modus habilis (moh-d<:ls hab-<:l-lis). [Latin] A valid
manner (in proving a debt, etc.).
i modus operandi (moh-d<:ls op-<:l-ran-dl or -dee). [Latin
"a manner of operating"] (17c) A method of operating
or a manner of procedure; esp. a pattern of criminal
behavior so distinctive that investigators attribute
it to the work of the same person <staging a fight at
the train station was part of the pickpocket's modus
operandi>. Abbr. M.O. PI. modi operandi.
modus tenendi (moh-das ta-nen-dl). [Latin] Hist. The
manner of holding. -This phrase referred to the differ
ent types oftenures by which estates were held.
I Modus Tenendi Parliamentum (moh-d<:ls ta-nen-dT
'pahr-Ia-men-tam). [Law Latin "the manner ofholding
Parliament"] Hist. A 14th-century writing on the
1096 modus transferendi
powers of Parliament, translated in the 17th century
and edited by T.D. Hardy in 1846.
modus transferendi (moh-dds trans-fd-ren-dI). [Law
Latin] Hist. The manner of transferring. Also spelled
modus transferrendi. Cf. TITULUS TRANSFERENDI.
modus vacandi (moh-dds vd-kan-dI). [Law Latin] Hist.
The manner ofvacating. This term was often used in
determining the circumstances under which a vassal
surrendered an estate to a lord.
modus vivendi (moh-dds vi-ven-dI or -dee). [Latin
"means of living (together),,] Int'llaw. A temporary,
provisional arrangement concluded between subjects
of international law and giving rise to binding obliga
tions on the parties.
"[Modus vivenqi] is an instrument of toleration looking
towards a settlement, by preparing for or laying down
the basis of a method of living together with a problem
or by bridging over some difficulty pending a permanent
settlement. Normally it is used for provisional and interim
arrangements which ultimately are to be replaced by a
formal agreement of a more permanent and detailed
character. There is no clear distinction of a modus vivendi
from other treaties. The most distinguishing feature is its
provisional character; nevertheless a modus vivendi may be
exercised for an indefinite period of time if it is prolonged
sine die or if a defi nitive solution to the problem cannot be
reached by treaty. Some 'temporary' arrangements have
actually turned out to be quite durable." Walter Rudolf,
"Modus Vivendi,'" in 3 Encvclopedia ofPublic International
Law 443 (1997).
moeble (myoo-boJl), adj. [Law French] Hist. Movable, as
in the phrase biens moebles ("movable goods").
moiety (moy-;>-tee). (15c) 1. A half of something (such
as an estate). -Also termed mediety. 2. A portion less
than half; a small segment. 3. In federal customs law,
a payment made to an informant who assists in the
seizure of contraband, the payment being no more than
25% of the contraband's net value (up to a maximum
of$250,000). 19 DSCA 1619.
moiety act. (1875) Criminal law. A law providing that a
portion (such as half) of an imposed fine will inure to
the benefit of the informant. [Cases: Fines
mole. (1922) A person who uses a long affiliation with an
organization to gain access to and betray confidential
information.
molestation. (15c) 1. The persecution or harassment
of someone <molestation of a witness>. 2. The act of
making unwanted and indecent advances to or on
someone, esp. for sexual gratification <sexual moles
tation>. -molest, vb. -molester, n.
child molestation. (1951) Any indecent or sexual
activity on, involving, or surrounding a child, usu.
under the of 14. See Fed. R. Evid. 414(d). [Cases:
Infants
Molineux rule. New York law. The principle that
evidence of prior crimes is inadmissible when offered
to prove the defendant's bad character and to show
that the defendant is therefore more likely than not to
have committed the crime charged. -The evidence is
admissible if offered to prove something other than criminal propensity, such as motive, identity, absence
of mistake or accident, intent, or the existence of a
common scheme or plan. The rule was first handed
down in People v. Molineux, 61 N.E. 286 (N.Y. 1901).
[Cases: Criminal Law C?369, 371.]
moliturae (mol-i-t[y]uur-ee or -chuur-ee). fLaw Latin]
Scots law. Tolls for grinding grain; multures. See CUM
ASTRICTIS MULTURIS.
molliter manus imposuit (mol-;>-tdr man-;:lS im-poz-[y]
oJ-wit). [Latin] Hist. He gently laid hands upon . This
phrase was used in actions of trespass and assault to
justify a defendant's use of force as reasonable, as when
it was necessary to keep the peace.
monarchy. (14c) A government in which a single person
rules, with powers varying from absolute dictatorship
to the merely ceremonial.
limited monarchy. A monarchical form ofgovernment
in which the monarch's power is subject to constitu
tional or other restraints. Also termed constitu
tional monarchy.
moneta (md-nee-t d), n. [Latin] Money.
monetagium (mon-;>-tay-jee-dm), n. [Law Latin
"mintage"] Hist. l. The right to coin money; mintage.
2. A tribute paid by s tenant to persuade a lord not to
change coinage.
monetarism (mon-i-td-riz-;>m). An economic theory
claiming that the money supply is the basic influence
on the economy . The theory was originated by Milton
Friedman in the late 1960s.
monetary, adj. 1. Of or relating to money <monetary
value> <monetary damages>. 2. Financial <monetary
services |
relating to money <monetary
value> <monetary damages>. 2. Financial <monetary
services> <monetary investments>.
monetary bequest. See pecuniary bequest under
BEQUEST,
money. (14c) 1. The medium of exchange authorized or
adopted by a government as part of its currency; esp.
domestic currency <coins and currency are money>.
UCC 1-201(24).2. Assets that can be easily converted
to cash <demand deposits are money>. 3. Capital that
is invested or traded as a commodity <the money
market> 4. (pl.) Funds; sums of money <investment
moneys>. Also spelled (in sense 4) monies. See
MEDIUM OF EXCHANGE; LEGAL TENDER.
current money. Money that circulates throughout a
country; currency.
e-money. Money or a money substitute that is trans
formed into information stored on a computer or
computer chip so that it can be transferred over infor
mation systems such as the Internet. Cf. e-check under
CHECK. -Also termed digital cash; electronic cash;
electronic currency; Internet scrip; on-line scrip.
fiat money. Paper currency not backed by gold or
silver. -Also termed flat money.
hard money. 1. Coined money, in contrast to paper
currency. 2. Cash.
lawful money. Money that is legal tender for the
payment ofdebts.
paper money. Paper documents that circulate as
currency; bills drawn by a government against its
own credit.
real money. 1. Money that has metallic or other intrin
sic value, as distinguished from paper currency,
checks, and drafts. 2. Current cash, as opposed to
money on account.
money bequest. See pecuniary bequest under BEQUEST.
money bill. See revenue bill under BILL (3).
money broker. See BROKER.
money changer. One whose primary business is exchang
ing currencies.
money claim. Hist. Under the English Judicature Act
of 1875, money claimed as damages, as for breaches of
contract and rent arrearages.
money count. See COUNT.
money demand. (1821) A claim for a fixed, liquidated
sum, as opposed to a damage claim that must be
assessed by a jury. [Cases: Damages (';:::,200.]
moneyed capital. See CAPITAL.
moneyed corporation. See CORPORATION.
money had and received. See action for money had and
received under ACTION (4).
money judgment. See JUDGMENT.
money land. Money held in a trust providing for its con
version into land.
money-laundering, n. (1974) The act of transferring
illegally obtained money through legitimate people or
accounts so that its original source cannot be traced.
Money-laundering is a federal crime. 18 USCA
1956. It is also addressed by state governments, e.g.,
through the Uniform Money Services Act. Because
some money-laundering is conducted across national
borders, enforcement of money-laundering laws often
requires international cooperation, fostered by
nizations such as Interpol. [Cases; United States
34.]
money made. A sheriff's return on a writ of execution
signifying that the sum stated on the writ was collected.
[Cases; Execution
money market. See MARKET.
money-market account. An interest-bearing account at
a bank or other financial institution . Such an account
usu. pays interest competitive with money-market
funds but allows a limited number oftransactions per
month. See money market under MARKET.
money-market fund. See MUTUAL FUND.
money order. (1802) A negotiable draft issued by an
authorized entity (such as a bank, telegraph company,
post office, etc.) to a purchaser, in lieu of a check to be
used to pay a debt or otherwise transmit funds upon the
credit of the issuer. [Cases; Postal Service (>:"J 18.] money paid. See action for money paid under ACTION
(4).
money-purchase plan. See EMPLOYEE BENEFIT PLAN.
money scrivener. A money broker; one who obtains
money for mortgages or other loans.
money service business, n. A nonbank entity that
provides mechanisms for people to make payments or
to obtain currency or cash in exchange for payment
instruments . Money service businesses do not accept
deposits or make loans. They include money transmit
ters, payment instrument sellers, stored-value provid
ers, check cashers, and currency exchangers. Also
termed nonbank financial institution; nondepository
provider offinancial services.
money supply. 1he total amount ofmoney in circulation
in the economy. See Ml: M2; M3.
monger (mang-g;lr). Archaic. A seller of goods; a dealer
<moneymonger>.
monier (moh-nyair or m<ln-ee-;lr), n. [fro Law Latin mon
etarius ~a moneyer"] Hist. 1. A minister ofthe mint. 2.
A banker; a dealer in money. -Also spelled moneyer.
monies. See MONEY (4).
moniment. Archaic. A memorial; a monument.
monition (ma-nish-;m), n. (14c) 1. Generally, a warning
or caution; ADMONITION. 2. Civil & maritime law.
A summons to appear in court as a defendant or to
answer contempt charges. [Cases; Admiralty (;::>44,
46; Contempt (;::>55.) 3. Eccles. law. A formal notice
from a bishop demanding that an offense within the
clergy be corrected or avoided. -monish (mon-ish),
vb. -monitory (mon-d-tor-ee), adj.
monitory letter. Eccles. law. Admonitory communica
tions sent from an ecclesiastical judge to staff members
in response to reported abuses or scandals.
monocracy (ma-nok-ra-see). A government by one
person.
monocrat (mon-d-krat). A monarch who governs
alone.
monogamy (m;l-nog-d-mee), n. (lSc) L The custom prev
alent in most modern cultures restricting a person to
one spouse at a time. 2. The fact of being married to
only one spouse. Cf. BIGAMY; POLYGAMY. -monoga
mous, adj. -monogamist, n.
monomachy (m<'l-nom-<'l-kee). Hist. See DUEL (2).
monomania (mon-<'l-may-nee-d). (1823) Insanity about
some particular subject or class of subjects, usu. mani
fested by a single insane delusion . A will made by
someone suffering from this condition is usu. held valid
unless the evidence shows that particular provisions in
the will were influenced by the insane delusion. [Cases:
Mental Health e:-~3.Ll -monomaniacal, adj.
monomaniac, n.
monopolist (ma-nop-<'l-list), n. 1. One who has a
monopoly; specif., a seller or combination of sellers
who can alter the price of a product in the market by
changing the quantity sold. By reducing output, a
1098 monopolium
monopolist can raise the price above the cost of supply
ing the market. 2. A proponent ofa monopoly.
monopolium (mon-a-poh-lee-am). [Latin fro Greek
monopoliol1 "a selling alone"] Hist. The sole power of
sale; a monopoly.
monopolization, n. (18c) The act or process of obtaining
a monopoly. -In federal antitrust law, monopoliza
tion is an offense with two elements: (1) the possession
of monopoly power that is, the power to fix prices
and exclude competitors -within the relevant market,
and (2) the willful acquisition or maintenance of that
power, as distinguished from growth or development as
a consequence of a superior product, business acumen,
or historical accident. United States v. Grinnell Corp.,
384 U.S. 563, 86 S.Ct. 1698 (1966). [Cases: Antitrust and
Trade Regulation (;=::-619.] monopolize, vb.
attempted monopolization. The effort to monopolize
any part of interstate or foreign commerce, consist
ing in (1) a specific intent to control prices or destroy
competition in the relevant market, (2) predatory
or anticompetitive conduct, and (3) a "dangerous
probability" of success in achieving monopoly in the
relevant market.
monopoly, n. (16c) 1. Control or advantage obtained by
one supplier or producer over the commercial market
within a given region. Cf. OLIGOPOLY. 2. The market
condition existing when only one economic entity
produces a particular product or provides a particular
service. _ The term is now commonly applied also to
situations that approach but do not strictly meet this
definition. [Cases: Antitrust and Trade Regulation
619.} -monopolistic, adj. -monopolist, n.
"[Ninety per cent] is enough to constitute a monopoly: it
is doubtful whether sixty or sixtyfour per cent is enough;
and certainly thirtythree per cent is not." United States
v. Aluminum Co. of Am., 148 F.2d 416, 424 (2d Gr. 1945)
(Hand, j.).
"In the modern sense, a monopoly exists when all, or
so nearly all, of an article of trade or commerce within
a community or district, is brought within the hands of
one person or set of persons, as practically to bring the
handling or production of the commodity or thing within
such single control to the exclusion of competition or free
traffic therein. A monopoly is created when, as the result
of efforts to that end, previously competing businesses are
so concentrated in the hands of a single person or corpo
ration, or a few persons or corporations acting together,
that they have power, for all practical purposes, to control
the prices of a commodity and thus to suppress compe
tition. In brief, a monopoly is the practical suppression
of effective business competition which thereby creates
a power to control prices to the public harm." 54A Am.
jur. 2d Monopolies, Restmints of Trade, and Unfair Trade
Practices 781, at 107 (1996).
bilateral monopoly. A hypothetical market condi
tion in which there is only one buyer and one seller,
resulting in transactional delays because either party
can hold out for a better deal without fearing that the
other party will turn to a third party.
legal monopoly. The exclusive right granted by govern
ment to business to provide utility services that are, in turn, regulated by the government. [Cases: Public
Utilities (;=::-113.]
natural monopoly. A monopoly resulting from a cir
cumstance over which the monopolist has no power,
as when the market for a product is so limited that
only one plant is needed to meet demand.
3. Patents. The exclusive right of a patentee to make, use,
sell, offer for sale, or import an invention for a certain
period of time, subject to the rights of the owners of
other patents that would be infringed. [Cases: Patents
185.]
"[TJhe statute of monopolies, 21 jac. I. c. 3, allows a royal
patent of privilege to be granted for fourteen years to
any inventor of a new manufacture, for the sole working
or making of the same; by virtue whereof a temporary
property becomes vested in the patentee." William Black
stone, 2 Commentaries on the Laws of England 407
(1766).
monopoly leveraging. A theory ofliability holding that
a party violates the antitrust laws when it exploits its
monopoly power in one market to gain a competitive
advantage in another market.
monopoly power. The power to control prices or to
exclude competition. -The size of the market share
is a primary determinant ofwhether monopoly power
exists. [Cases: Antitrust and Trade Regulation
641.]
monopsony (m<l-nop-sa-nee), n. (1933) A market situ
ation in which one buyer controls the market. [Cases:
Antitrust and Trade Regulation -monop
sonistic, adj.
"Monopsony is often thought of as the flip side of
monopoly. A monopolist is a seller with no rivals; a man
opsonist is a buyer with no rivals. A monopolist has power
over price exercised by limiting output. A monopsonist
also has power over price, but this power is exercised by
limiting aggregate purchases. Monopsony injures efficient
allocation by reducing the quantity of the input product
or service below the efficient level." Lawrence A. Sullivan
& Warren S. Grimes, The Law of Antitrust: An Integrated
Handbook 137-38 (2000).
Monroe Doctrine. The principle that the United States
will allow no intervention or domination in the Western
Hemisphere by any non-American nation. _ This prin
ciple, which has some recognition in international law
(though not as a formal doctrine), was first announced
by President James Monroe in 1823.
"The Monroe doctrine is a policy which the United States
has followed in her own interest more or less consistently
for more than a century, and in itself is not contrary to
international law, though possible applications of it might
easily be so. But it certainly is not a rule of international
law. It is comparable to policies such as the 'balance of
power' in Europe, or the British policies of maintaining the
independence of Belgium or the security of our searoutes
to the East, or the former japanese claim to something like
a paramount influence over developments in the Far East.
Apart from other objections, it is impossible to regard as
a rule of law a doctrine which the United States claims the
sale right to interpret, which she interprets in different
senses at different times, and which she applies only as
and when she chooses. Nor is the doctrine, as Article 21
of the Covenant described it, a 'regional understanding',
for the other states of the region concerned, that is to say,
the Continent of America, have never been parties to it
1099 moot |
the region concerned, that is to say,
the Continent of America, have never been parties to it
1099 moot court
and indeed have often resented it." J.L. Brierly, The Law of
Nations 314 (5th ed. 1955).
monstrans de droit (mon-str<}nz d<} droyt). [Law French]
Hist. A manifestation ofright as a method of obtaining
restitution from the Crown . It was replaced by the
writ of right. Currently, restitution is obtained by an
ordinary action against the government.
monstrans de faits (mon-str<}nz d<} fay[ts]). [Law French]
Hist. A showing ofdeeds; a profert.
monstraverunt (mon-strd-veer-;mt). [Latin "they have
showed"] Hist. A writ of relief for tenants of ancient
demesne who were distrained by their lord to do more
than the tenure required. Also termed writ ofmon
stral'erunt.
'The little writ serves the turn of a man who claims land
according to the custom of the manor; but the tenants of
whom we are speaking are protected, and protected col
lectively, against any increase of their services. This is very
plain when the manor is in the hands of a mesne lord. If he
attempts to increase the customary services, some of the
tenants, acting on behalf of all, will go to the royal chancery
and obtain a writ against him. Such a writ begins with the
word Monstraverunt. The king addresses the lord: 'A,
Band C, men of your manor of X, which is of the ancient
demesne of the crown of England, have shown us that you
exact from them other customs and services than those
which they owe, and which their ancestors did in the time
when that manor was in the hands of our predecessors,
kings of England; therefore we command you to cease from
such exactions, otherwise we shall order our sheriff to
interfere." 1 Frederick Pollock & FrederiC W. Maitland, The
History ofEnglish Law Before the Time ofEdward 1388 (2d
ed. 1898).
montes pietatis (mon-teez pI-d-tay-tis). [Latin "moun
tains of piety"] Hist. Institutions established to lend
money upon pledges of goods.
Montevideo Treaty. Copyright. An 1889 copyright treaty
among Western Hemisphere nations, based on the
Berne Convention but affording less copyright protec
tion.
month. (18c) (bef. 12c) 1. One of the twelve periods of
time in which the calendar is divided <the month of
March>. Also termed calendar month; civil month.
[Cases: Time 2. Any time period approximating
30 days <due one month from today>. 3. At common
law, a period of28 days; the period of one revolution
of the moon <a lunar month>. Also termed lunar
month. 4. One-twelfth of a tropical year; the time it
takes the sun to pass through one sign of the zodiac,
usu. approximating 30 days <a solar month> Also
termed solar month.
month-to-month lease. See LEASE.
month-to-month tenancy. See periodic tenancy under
TENANCY.
Montreal Agreement. A private agreement, Signed by
most international airlines, waiving both the Warsaw
Convention's limitation on liability for death and per
sonal-injury cases (currently about $20,000) and the
airline's due-care defenses, raising the liability limit
per passenger to $75,000, and providing for absolute
liability on the part of the carrier (in the absence of passenger negligence) for all flights originating,
stopping, or terminating in the United States . The
Montreal Agreement was the result of negotiations in
1965 and 1966 follOWing the United States' denuncia
tion ofthe Warsaw Convention, based primarily on its
low liability limits. -Also termed Agreement Relating
to Liability Limitation ofthe Warsaw Convention and
the Hague Protocol. [Cases: Carriers C::)307; Treaties
C::='8.]
monument, n. (I5c) 1. A written document or record,
esp. a legal one. 2. Any natural or artificial object that
is fixed permanently in land and referred to in a legal
description ofthe land. [Cases: Boundaries 5.)
monumental, adj.
mural monument. A monument set into or otherwise
made part ofa wall.
natural monument. A nonartificial permanent thing
on land, such as a tree, river, or beach. -Also termed
natural object. [Cases: Boundaries
Moody's Investor's Service. An investment-analysis and
adVisory service . Moody's rates the financial strength
ofbusinesses from Aaa (strongest) to Aa, A, Baa, and so
on to C. 'The grade may also be modified with a 1,2, or
3 according to the business's relative strength among
similar companies. -Often shortened to Moody's.
moonlighting. (1957) The fact or practice ofworking at
a second job after the hours of a regular job. -Also
termed dual employment; multiple job-holding.
I moonshine. (18c) Slang. A distilled alcoholic beverage,
esp. whiskey, that is illegally manufacturecl. [Cases:
Intoxicating Liquors C=' l37.)
moorage. 1. An act of mooring a vessel at a wharf. 2. A
mooring charge. [Cases: Wharves 15.]
moored in safety. Marine insurance. (Of a vessel) located
in a usual place for landing or loading cargo, free from
any imminent peril insured against. [Cases: Insurance
C::='2214.]
moot, adj. (16c) 1. Archaic. Open to argument; debat
able. 2. Having no practical significance; hypotheti
calor academic <the question on appeal became moot
once the parties settled their case>. -mootness, n.
moot, vb. (bef. 12c) 1. Archaic. To raise or bring forward
(a point or question) for discussion. 2. To render (a
question) moot or of no practical significance.
moot case. A matter in which a controversy no longer
exists; a case that presents only an abstract question
that does not arise from existing facts or rights. [Cases:
Action Federal Courts C::=' 12.l.]
moot court. (I8c) 1. A fictitious court held usu. in law
schools to argue moot or hypothetical cases, esp. at the
appellate level. 2. A practice session for an appellate
argument in which a lawyer presents the argument
to other lawyers, who first act as judges by asking
questions and who later provide criticism on the
argument. -Also termed practice court. Cf. MOCK
TRIAL.
moot man. Hist. A person who argued cases in the Inns
of Court.
mootness doctrine. (1963) 1be principle that American
courts will not decide moot cases -that is, cases in
which there is no longer any actual controversy. Cf.
RIPENESS. [Cases: Action ~6;Appeal and Error ~
781; Federal Courts (;:;,) 12.1.]
mop fair. See STATUTE FAIR.
mora (mor-a), n. [Latin] Roman law. Willful delay or
default in fulfilling a legal obligation . A creditor or
debtor in mora could be required to pay interest on any
money owed.
"The word mora means delay or default. In its technical
sense it means a culpable delay in making or accepting
performance .... The definition includes both mora deb;
toris and mora creditoris. In French law and other civil law
systems mora debitoris seems (sometimes, if not always)
to occur as a mean term between failure to perform a duty
timeously and liability for breach .... Mora usually attaches
to a debtor, but it may also attach to a creditor who fails
to accept performance duly tendered ...." R.w. Lee, An
Introduction to Roman-Dutch Law 445 (4th ed. 1946).
"Mora. This was wrongful failure to discharge a legal obliga
tion on demand made at a fitting time and place. It must be
wilful: failure to appear, by mistake, or in a bona (ide belief
that there was no obligatiO, or doubt about it, or by mishap,
did not suffice to put a debtor in mora." W.W. Buckland, A
Manual ofRoman Private Law 338 (2d ed. 1939).
mora (mor-a), n. [Law Latin] Hist. A moor; unprofitable
ground.
moral absolutism. The view that a person's action can
always properly be seen as right or wrong, regardless
of the situation or the consequences. -Also termed
ethical absolutism; objective ethics. Cf. MORAL RELA
TIVISM.
moral certainty. (17c) Absolute certainty . Moral cer
tainty is not required to sustain a criminal conviction.
See REASONABLE DOUBT; proof beyond a reasonable
doubt under PROOF. [Cases: Criminal Law C=-561(1).)
moral coercion. See UNDGE INFLUE!'oICE (1).
moral consideration. See good consideration (1) under
CONSIDERATIO!'ol (1).
moral depravity. See MORAL TURPITUDE (1).
moral duress. See DURESS.
moral duty. See DUTY (1).
moral evidence. See EVIDENCE.
moral fraud. See actualfraud under FRAUD.
moral hazard. See HAZARD (2).
morality. (14c) 1. Conformity with recognized rules of
correct conduct. 2. The character of being virtuous,
esp. in sexual matters.
"[Tlhe terms 'morality' and 'immorality' ... are understood
to have a sexual connotation. In fact, the terms 'ethics' and
'morals' are no longer interchangeable in everyday speech.
A governmental offiCial arraigned on a 'morals charge' will
be accused of something quite different from one accused
of an 'ethics Violation.'" William P. Golding, Philosophy of
Law 5S (1975).
3. A system of duties; ethics. private morality. (18c) A person's ideals, character, and
private conduct, which are not valid governmental
concerns if the individual is to be considered sover
eign over body and mind and ifthe need to protect the
individual's physical or moral well-being is insuffi
cient to justify governmental intrusion . In his essay
On Liberty (1859), John Stuart Mill distingUished
between conduct or ideals that affect only the indi
vidual from conduct that may do harm to others. Mill
argued that governmental intrusion is justified only
to prevent harm to others, not to influence a person's
private morality.
public morality. (lSc) 1. The ideals or general moral
beliefs ofa society. 2. The ideals or actions of an indi
vidual to the extent that they affect others.
moral law. (lSc) A collection of principles defining right
and wrong conduct; a standard to which an action must
conform to be right or virtuous.
"It quite often happens that the moral law disapproves of
something which the secular permits as a concession to
human frailty." Patrick Devlin, The Enforcement of Morals
78 (1968).
moral necessity. See NECESSITY.
moral obligation. See OBLIGATION.
moral person. See artificial person under PERSON (3).
moral relativism. The view that there are no absolute or
constant standards ofright and wrong. Also termed
ethical relativism; subjective ethics. Cf. MORAL ABSO
LUTISM.
moral right. (usu. pl.) Copyright. The right ofan author
or artist, based on natural-law principles, to guaran
tee the integrity of a creation despite any copyright or
property-law right ofits owner. Moral rights include
rights of (1) attribution (also termed "paternity"): the
right to be given credit and to claim credit for a work,
and to deny credit if the work is changed; (2) integ
rity: the right to ensure that the work is not changed
without the artist's consent; (3) publication: the right
not to reveal a work before its creator is satisfied with
it; and (4) retraction: the right to renounce a work and
withdraw it from sale or display. Moral rights are recog
nized by law in much ofEurope. Limited moral rights
are recognized in the United States in 17 USCA 106A.
Cf. INTEGRITY RIGHT; ATTRIBUTION RIGHT. [Cases:
Copyrights and Intellectual Property (;::, lO1.J
"The recognition of moral rights is founded in the notion
that works of art belong to their creators in a way that
transcends the sale or transfer of the work to a new owner,
because the artist has imbued the work with her personal
ity." EriC M. Brooks, 'Titled" Justice: Site-Specific Art and
Moral Rights After u.s. Adherence to the Berne Convention,
77 Cal. L. Rev. 1431, 1434 (1989).
"Moral rights protect an author's non-pecuniary or non
economic interests. The 1988 [Copyrightl Act provides
authors and directors with the right to be named when a
work is copied or communicated (the right of attribution),
the right norto be named as the author of a work which one
did not create (the right to object against false attribution),
and the right to control the form of the work (the right
of integrity)." Lionel Bently & Brad Sherman, Intellectual
Property Law 233 (2001).
1101
moral suasion. The act or effort of persuading by appeal
to principles of morality.
moral turpitude. (17c) 1. Conduct that is contrary to
justice, honesty, or morality. In the area of legal
ethics, offenses involving moral turpitude such as
fraud or breach oftrust -traditionally make a person
unfit to practice law. -Also termed moral depravity.
2. Military law. Any conduct for which the applicable
punishment is a dishonorable discharge or confinement
not less than one year.
"Moral turpitude means, in general, shameful wicked
ness so extreme |
inement
not less than one year.
"Moral turpitude means, in general, shameful wicked
ness so extreme a departure from ordinary standards of
honest, good morals, justice, or ethics as to be shocking to
the moral sense ofthe community. It has also been defined
as an act of baseness, vileness, or depravity in the private
and social duties which one person owes to another, or to
society in general, contrary to the accepted and customary
rule of right and duty between people." 50 Am. Jur. 2d Libel
and Slander 165, at 454 (1995).
moral wrong. See WRONG.
moral-wrong doctrine. (1962) The doctrine that if a
wrongdoer acts on a mistaken understanding of the
facts, the law will not exempt the wrongdoer from cul
pability when, ifthe facts had been as the actor believed
them to be, his or her conduct would nevertheless be
immoral. [Cases: Criminal Law (;=33.]
morandae solutionis causa (ma-ran-dee sa-Ioo-shee-oh
nis kaw-za). [Latin] Hist. For the purpose of delaying
payment.
moratorium (mor-a-tor-ee-Jm). (1875) 1. An authorized
postponement, usu. a lengthy one, in the deadline for
paying a debt or performing an obligation. 2. The period
of this delay. 3. The suspension of a specific activity. PI.
moratoriums, moratoria.
moratory (mor-J-tor-ee), adj. (1891) Of or relating to a
delay; esp. of or relating to a moratorium.
moratory damages. See DAMAGES.
moratory interest. See prejudgment interest under
INTEREST (3).
more burg; (mor-ee b;}r-jI). [Law Latin] Hist, According
to the custom in burgage-tenure. See BURGAGE-TENURE
(2).
more or less. (Of a quantity) larger or smaller . This
phrase often appears in deeds <the property contains
120 acres, more or less> and sometimes in contracts
<seller's wheat field will produce 50 bushels per acre,
more or less>. It qualifies a good-faith representation
of quantity. By using the phrase, the parties mutually
acknowledge that the true circumstances may differ
from what the parties believe they are when the contract
is made, and accept a risk that the true quantity will
be slightly different. When the qualifying phrase is
present, neither party can recover for a surplus or defi
ciency. [Cases: Deeds (;=38(1); Sales (;=71; Vendor
and Purchaser
morganatic marriage. See MARRIAGE (1),
morgangiva (mor-gan-ja-va), n. [Law Latin "morning
gift" from Old Norsel Hist. A gift made to the bride on mortgage
the morning after the wedding; a type of dowry. Also
spelled morgangina.
Morgan Nick Alert. See AMBER ALERT.
Morgan presumption. (1948) A presumption that shifts
the burden of proof by requiring the person against
whom it operates to produce sufficient evidence to
outweigh the evidence that supports the presumed fact,
as in requiring a criminal defendant who was arrested
while in possession of an illegal substance and is
thereby presumed to have knOWingly possessed it -to
produce sufficient evidence to entitle the jury to find
that the defendant's evidence outweighs the evidence of
knowing possession. See Edmund M. Morgan, Instruct
ing the Jury Upon Presumptions and Burdens ofProof,
47 Harv. 1. Rev. 59, 82-83 (1933). Cf. THAYER PRESUMP
TION. [Cases: Controlled Substances <2=)68; Criminal
Law (;=324; Evidence (:::;.-:>85.]
mors (morz), n. [Latin "death"] Roman law. 1. Death. 2.
The punishment of death.
morsellum terrae (mor-sel-am ter-ee). [Law Latin "a
morsel of earth"] Hist. A small parcel of land.
morsel of execration. See ordeal ofthe morsel under
ORDEAL.
mors naturalis (morz nach-a-ray-lis). See natural death
under DEATH.
mortality factor. Insurance. In life-insurance ratemak
ing, an estimate of the average number of deaths that
will occur each year at each specific age, calculated by
using an actuarial table . The mortality factor is one
element that a life insurer uses to calculate premium
rates. See ACTUARIAL TABLE; PREMIUM RATE_ Cf.'
INTEREST FACTOR; RISK FACTOR. [Cases: Insurance
(:::J 1542(1).]
: mortality table. See ACTUARIAL TABLE.
mort civile (mor[t] see-veel). [Law French] See CIVIL
DEATH (t).
mort d'ancestor (mor[t] dan-ses-tar). [Law French "death
of an ancestor"] Hist. An assize founded on the death
of an ancestor. -Also termed (in Scots law) brieve of
mortancestry.
"Another of the petty assizes was that of mort d'ancestor,
founded on the Assize of Northhampton 1176. The question
in this assize was whether the plaintiff's father (or other
close ancestor) had been seised in fee that is, of an
inheritable estate ~ on the day he died, and whether the
plaintiff was his next heir; if both questions were answered
in the affirmative, the plaintiff was entitled to be put in
seisin." J,H. Baker, An Introduction to English Legal History
267-68 (3d ed. 1990).
mortgage (mor-gij), n. (I5c) 1. A conveyance of title
to property that is given as security for the payment
of a debt or the performance of a duty and that will
become void upon payment or performance according
to the stipulated terms. -Also termed (archaically)
dead pledge. [Cases: Mortgages 2. A lien against
property that is granted to secure an obligation (such
as a debt) and that is extinguished upon payment or
performance according to stipulated terms. [Cases:
Mortgages C:::> 145.] 3. An instrument (such as a deed
or contract) specifying the terms of such a transac
tion. 4. Loosely, the loan on which such a transaction
is based. 5. The mortgagee's rights conferred by such
a transaction. 6. Loosely, any real-property security
transaction, including a deed of trust. -Abbr. M.
mortgage, vb.
"The chief distinction between a mortgage and a pledge
is that by a mortgage the general title is transferred to the
mortgagee, subject to be revested by performance of the
condition; while by a pledge the pledgor retains the general
title in himself, and parts with the possession for a special
purpose. By a mortgage the title is transferred; by a pledge,
the possession." Leonard A. Jones, A Treatise on the Law of
Mortgages 4, at 5-6 (5th ed, 1908).
adjustable-rate mortgage. A mortgage in which the
lender can periodically adjust the mortgage's interest
rate in accordance with fluctuations in some external
market index. -Abbr. ARM. -Also termed vari
able-rate mortgage;flexible-rate mortgage. Cf. explod
ing adjustable-rate mortgage.
all-inclusive mortgage. See wraparound mortgage.
amortized mortgage. A mortgage in which the mort
gagor pays the interest as well as a portion of the
principal in the periodic payment. _ At maturity, the
periodic payments will have completely repaid the
loan. -Also termed self-liquidating mortgage. See
AMORTIZATION (1). Cf. straight mortgage.
balloon-payment mortgage. A mortgage requir
ing periodic payments for a specified time and a
lump-sum payment of the outstanding balance at
maturity.
blanket mortgage. A mortgage covering two or more
properties that are pledged to support a debt.
bulk mortgage. 1. A mortgage of personal property in
bulk; a pledge of an aggregate of goods in one location.
2. A mortgage of more than one real-estate parcel.
chattel mortgage (chat-<)l). A mortgage on goods pur
chased on installment, whereby the seller transfers
title to the buyer but retains a lien securing the unpaid
balance. -Chattel mortgages have generally been
replaced by security agreements, which are governed
by Article 9 of the VCe. Cf. retail installment contract
under CONTRACT. [Cases: Chattel Mortgages 1.]
closed-end mortgage. A mortgage that does not permit
either prepayment or additional borroWing against
the collateral. Cf. open-end mortgage. -Also termed
closed mortgage.
closed mortgage. See closed-end mortgage.
collateral mortgage. Civil law. A mortgage securing a
promissory note pledged as collateral security for a
principal obligation.
common-law mortgage. See deed oftrust under DEED.
consolidated mortgage. A mortgage created by com
bining two or more mortgages.
construction mortgage. A mortgage used to finance a
construction project. contingent-interest mortgage. A mortgage whose
interest rate is directly related to the economic per
formance of the pledged property.
conventional mortgage. A mortgage, not backed by
government insurance, by which the borrower trans
fers a lien or title to the lending bank or other financial
institution. -These mortgages, which feature a fixed
periodic payment of principal and interest through
out the mortgage term, are typically used for home
financing. Also termed conventional loan.
direct-reduction mortgage. An amortized mortgage in
which the principal and interest payments are paid at
the same time -usu. monthly in equal amounts
with interest being computed on the remaining
balance. -Abbr. DRM.
dry mortgage. A mortgage that creates a lien on
property but does not impose on the mortgagor any
personal liability for any amount that exceeds the
value of the premises.
equitable mortgage. A transaction that has the intent
but not the form of a mortgage, and that a court
of equity will treat as a mortgage. Cf. technical
mortgage.
"Courts of equity are not governed by the same principles
as courts of law in determining whether a mortgage has
been created, and generally, whenever a transaction
resolves itself into a security, or an offer or attempt to
pledge land as security for a debtor liability, equity will
treat it as a mortgage, without regard to the form it may
assume, or the name the parties may choose to give it. The
threshold issue in an action seeking imposition of an equi
table mortgage is whether the plaintiff has an adequate
remedy at law. In applying the doctrine of equitable mort
gages doubts are resolved in favor of the transaction being
a mortgage." 59 c.J.S. Mortgages 12, at 62 (1998).
exploding adjustable-rate mortgage. An adjustable
rate mortgage for which the lender resets the interest
rate so high that the borrower can no longer make
payments. -Sometimes shortened to exploding
ARM. Cf. adjustable-rate mortgage.
extended first mortgage. See wraparound mortgage.
FHA mortgage. A mortgage that is insured fully or par
tially by the Federal Housing Administration.
first mortgage. A mortgage that is senior to all other
mortgages on the same property. [Cases: Mortgages
151.J
fixed-rate mortgage. A mortgage with an interest rate
that remains the same over the life of the mortgage
regardless of market conditions. -Abbr. FRM.
flexible-rate mortgage. 1. See adjustable-rate mortgage.
2. See renegotiable-rate mortgage.
flip mortgage. A graduated-payment mortgage
allowing the borrower to place all or some of the
down payment in a savings account and to use the
principal and interest to supplement lower mortgage
payments in the loan's early years.
future-advances mortgage. A mortgage in which part
of the loan proceeds will not be paid until a future
date. [Cases: Mortgages 16, 116.]
1103
general mortgage. Civil law. A blanket mortgage against
all the mortgagor's present and future property. La.
Civ. Code art. 3285.
graduated mortgage. See graduated-payment
mortgage.
graduated-payment adjustable-rate mortgage. A
mortgage combining features of the graduated-pay
ment mortgage and the adjustable-rate mortgage. -
Abbr. GPARM. -Also termed graduated mortgage.
graduated-payment mortgage. A mortgage whose
initial payments are lower than its later payments .
The payments are intended to gradually increase, as
the borrower's income increases over time.
growing-equity mortgage. A mortgage that is fully
amortized over a Significantly shorter term than the
traditional 25-to 30-year mortgage, with increasing
payments each year. -Abbr. GEM.
indemnity mortgage. See deed oftrust under DEED.
interest-only mortgage. A balloon-payment mortgage
on which the borrower must at tirst make only interest
payments, but must make a lump-sum payment of the
full principal at maturity. -Abbr. 10 mortgage.
Also termed standing mortgage; straight-term
mortgage.
joint mortgage. A mortgage given to two or more mort
gagees jointly.
judicial mortgage. Civil law. A judgment lien created
by a recorded legal judgment. [Cases: Judgment
752-766.J
jumbo mortgage. A mortgage loan in a principal
amount that exceed |
752-766.J
jumbo mortgage. A mortgage loan in a principal
amount that exceeds the dollar limits for a govern
ment guarantee.
junior mortgage. A mortgage that is subordinate to
another mortgage on the same property. -Also
termed puisne mortgage. [Cases: Mortgages
151.J
leasehold mortgage. A mortgage secured by a lessee's
leasehold interest.
legal mortgage. Civil law. A creditor's mortgage arising
by operation oflaw on the debtor's property. Also
termed tacit mortgage.
open-end mortgage. A mortgage that allows the mort
gagor to borrow additional funds against the same
property. Cf. closed-end mortgage.
package mortgage. A mortgage that includes both real
and incidental personal property, such as a refrigera
tor or stove.
participation mortgage. 1. A mortgage that permits the
lender to receive profits of the venture in addition to
the normal interest payments. 2. A mortgage held by
more than one lender.
price-level-adjusted mortgage. A mortgage with a
fixed interest rate but the principal balance ofwhich
is adjusted to reflect inflation. -Abbr. PLAM.
puisne mortgage. See junior mortgage.
mortgage
purchase-money mortgage. A mortgage that a buyer
gives the seller, when the property is conveyed, to
secure the unpaid balance of the purchase price.
Abbr. PMM. See SECURITY AGREEMENT. [Cases:
Mortgages 115.J
renegotiable-rate mortgage. A government-sponsored
mortgage that requires the mortgagee to renegotiate
its terms every three to five years, based on market
conditions. Also termed flexible-rate mortgage;
rollover mortgage.
reverse annuity mortgage. A mortgage in which the
lender disburses money over a long period to provide
regular income to the (usu. elderly) borrower, and in
which the loan is repaid in a lump sum when the
borrower dies or when the property is sold. -Abbr.
RAM. -Also termed reverse mortgage.
rollover mortgage. See renegotiable-rate mortgage.
second mortgage. A mortgage that is junior to a first
mortgage on the same property, but that is senior to
any later mortgage. [Cases: Mortgages C=>151.J
"A landowner who already holds land subject to a mortgage
may wish to hypothecate his equity. He does this by taking
out a 'second mortgage.' Should the mortgagor default in
his obligation on the first mortgage, the first mortgagee
may foreclose. Ifthere is a deficiency upon sale, the second
mortgagee loses his security in the eqUity because there
is no equity. If the mortgagee does not default on the first
mortgage, but does on the second, the second mortgagee
can foreclose on the mortgagor's equity. Such a foreclosure
would not affect the first mortgagee's rights." Edward H.
Rabin, Fundamentals of Modern Real Property Law 1087
(1974).
self-liquidating mortgage. See amortized mortgage.
senior mortgage. A mortgage that has priority over
another mortgage (a junior mortgage) on the same
property. [Cases: Mortgages C:~J151.]
shared-appreciation mortgage. A mortgage giving the
lender the right to recover (as contingent interest) an
agreed percentage of the property's appreciation in
value when it is sold or at some other specified, future
date. -Abbr. SAM.
shared-equity mortgage. A mortgage in which the
lender shares in the profits from the property's resale.
The lender must usu. tirst purchase a portion of the
property's equity by providing a portion ofthe down
payment.
special mortgage. Civil law. A mortgage burdening
only particular, specified property of the mortgagor.
La. Civ. Code art. 3285.
standing mortgage. See interest-only mortgage.
straight mortgage. A mortgage in which the mortgagor
is obligated to pay interest during the mortgage term
along with a final payment of principal at the end of
the term. Cf. amortized mortgage.
straight-term mortgage. See interest-only mortgage.
submortgage. A mortgage created when a person
holding a mortgage as security for a loan procures
another loan from a third party and pledges the
mortgage as security; a loan to a mortgagee who
puts up the mortgage as collateral or security for the
loan.
tacit mortgage. See legal mortgage.
technical mortgage. A traditional, formal mortgage, as
distinguished from an instrument haVing the charac
ter ofan equitable mortgage. Cf. equitable mortgage.
VA mortgage. A veteran's mortgage that is guaranteed
by the Veterans Administration.
variable-rate mortgage. See adjustable-rate
mortgage.
Welsh mortgage. A type of mortgage, formerly
common in Wales and Ireland, by which the mort
gagor, without promising to pay the debt, transfers
title and possession ofthe property to the mortgagee,
who takes the rents and profits and applies them to
the interest, often with a stipulation that any surplus
will reduce the principal. The mortgagee cannot
compel the mortgagor to redeem, and cannot fore
close the right to redeem, because no time is fixed for
payment. The mortgagor is never in default, but may
redeem at any time.
wraparound mortgage. A second mortgage issued
when a lender assumes the payments on the borrow
er's low-interest first mortgage (usu. issued through
a different lender) and lends additional funds . Such
a mortgage covers both the outstanding balance of
the first mortgage and the additional funds loaned.
12 CPR 226.17 cmt. 6. -Also termed extended first
mortgage; all-inclusive mortgage.
zero-rate mortgage. A mortgage with a large down
payment but no interest payments, with the balance
paid in equal installments.
mortgage-backed security. See SECURITY.
mortgage banker. An individual or organization that
originates real-estate loans for a fee, resells them to
other parties, and services the monthly payments.
mortgage bond. See BOND (3).
mortgage broker. See BROKER.
mortgage certificate. (1843) A document evidencing
part ownership of a mortgage.
mortgage clause. An insurance-policy provision that
protects the rights of a mortgagee when the insured
property is subject to a mortgage . Such a clause usu.
provides that any insurance proceeds must be allocated
between the named insured and the mortgagee "as their
interests may appear." -Also termed mortgagee clause.
See LOSS-PAYABLE CLAUSE; AT1MA. [Cases: Mortgages
C=.'201.)
open mortgage clause. A mortgage clause that does
not protect the mortgagee if the insured mortgagor
does something to invalidate the policy (such as com
mitting fraud) . This type of clause has been largely
superseded by the mortgage-loss clause, which affords
the mortgagee more protection. Also termed simple
mortgage clause. Cf. MORTGAGE-LOSS CLAUSE. standard mortgage clause. A mortgage clause that
protects the mortgagee's interest even ifthe insured
mortgagor does something to invalidate the policy.
In effect, this clause creates a separate contract
between the insurer and the mortgagee. -Also
termed union mortgage clause.
mortgage commitment. (1939) A lender's written agree
ment with a borrower stating the terms on which it will
lend money for the purchase ofspecified real property,
usu. with a time limitation. [Cases: Mortgages (;::.
211.]
mortgage company. A company that makes mortgage
loans and then sells or assigns them to investors.
mortgage-contingency clause. (1965) A real-estate-sale
provision that conditions the buyer's performance on
obtaining a mortgage loan. [Cases: Vendor and Pur
chaser ~)79.1
mortgage deed. See DEED.
mortgage discount. (1928) The difference between the
mortgage principal and the amount the mortgage
actually sells for; the up-front charge by a lender at a
real-estate closing for the costs of financing . Although
usu. paid by the buyer, the discount is sometimes
paid by the seller when required by law, as with a VA
mortgage. -Also termed point; mortgage point; loan
brokerage fee; new-loan fee.
mortgagee (mor-g;)-jee). (l6c) One to whom property is
mortgaged; the mortgage creditor, or lender. Also
termed mortgage-holder. [Cases: Mortgages
mortgagee in possession. (18c) A mortgagee who takes
control of mortgaged land by agreement with the
mortgagor, usu. upon default of the loan secured by
the mortgage. [Cases: Mortgages
mortgagee clause. See MORTGAGE CLAUSE.
mortgagee policy. A title-insurance policy that covers
only the mortgagee's title and not the owner's title. Cf.
OWNER'S POLICY. [Cases: Mortgages (:::)201.]
mortgage foreclosure. See FORECLOSURE.
mortgage-guarantee insurance. Insurance provided
by the Mortgage Guarantee Insurance Company
to mortgage lenders that grant mortgages to parties
having less than a 20% down payment. The cost of
the insurance is included in the dosing costs. [Cases:
Mortgages C-:201.]
mortgage-holder. See MORTGAGEE.
mortgage insurance. See INSURANCE.
mortgage lien. See LIEN.
mortgage loan. See LOAN.
mortgage-loss clause. A mortgage clause proViding that
title insurance will not be invalidated by the mortgag
or's acts . Thus, even if the mortgagor does an act that
would otherwise make the policy void, the act merely
voids the policy as against the mortgagor, but it remains
in full force for the benefit of the mortgagee. -Also
termed New York standard clause; union-loss clause. Cf.
1105
open mortgage clause under MORTGAGE CLAUSE. [Cases:
Mortgages C~20l.]
mortgage market. The conditions that provide the
demand for new mortgage loans and the later resale of
those loans in the secondary mortgage market.
primary mortgage market. The national market in
which mortgages are originated.
secondary mortgage market. The national market in
which existing mortgages are bought and sold, usu.
on a package basis.
mortgage note. See NOTE (1).
mortgage point. 1. See POINT (3). 2. See MORTGAGE
DISCOUNT.
mortgager. See MORTGAGOR.
mortgage servicing. The administration of a mortgage
loan, including the collection of payments, release of
liens, and payment of property insurance and taxes .
Servicing is usu. performed by the lender or the lender's
agent, for a fee. [Cases: Mortgages
mortgage warehousing. An arrangement in which
a mortgage company holds loans for later resale at a
discount.
mortgaging out. The purchase of real property by financ
ing 100% of the purchase price.
mortgagor (mor-ga-jor or mor-ga-jar). One who mort
gages property; the mortgage-debtor, or borrower.
Also spelled mortgager; mortgageor. [Cases: Mortgages
<>='23.]
mortification. (l4c) The act of disposing of or con
tributing property for religious, charitable, or public
purposes.
mortis causa (mor-tis kaw-za). See gift causa mortis
under GIFT.
mortmain (mort-mayn). [French "deadhand"] (ISc) The
condition oflands or tenements held in perpetuity by
an ecclesiastical or other corporation . Land alienated
in mortmain is not inalienable, but it will never escheat
or pass by inheritance (and thus no inheritance taxes
will ever be paid) because a corporation does not die.
See AMORTIZE (3); DEADHAND CONTROL. [Cases: Cor
porations (::::::c43S; ReligiOUS Societies C=::> 15.]
mortmain statute. (1839) A law that limits gifts and
other dispositions ofland to corporations (esp. charita
ble ones) and that prohibits corporations from holding
land in perpetuity. -In England, laws such as the Pro
visions of Westminster and Magna Carta essentially
required the Crown's authorization before land could
vest in a corporation. The object was to prevent lands
from being held by religious corporations in perpetu
ity. Although this type ofrestriction was not generally
part of the common law in the United States, it influ
enced the enactment of certain state laws restricting
the amount of property that a corporation could hold
for religious or charitable purposes. Also termed
mortmain act; statute ofmortmain. [Cases: Corpora
tions C~434.1 most-significant-relationship test
mortua manus. See DEADHAND CO:->lTROL.
mortuary. (16c) 1. A place where cadavers are prepared
for burial; a place where dead bodies are held before
burial. [Cases: Dead Bodies (::::::c2.] 2. A burial place.
3. Hist. A customary gift left by a deceased to a parish
church for past tithes owed. Also termed (in sense
3) soul scot.
mortuary table. See ACTUARIAL TABLE.
mortuum vadium (mor-choo-am vay-dee-am). See |
ACTUARIAL TABLE.
mortuum vadium (mor-choo-am vay-dee-am). See
vadium mortuum under VADIUM.
mortuus (mor-choo-<ls). adj. [Latin] Hist. 1. Dead. 2. A
sheriff's return that the named party is dead.
mortuus civiliter (mor-choo-as s<l-vil-a-tar). [Latin
"civilly dead"] A person civilly dead, deprived of civil
rights. See civil death under DEATH.
mortuus sine prole (mor-choo-<ls 5I-nee proh-Iee).
[Latin] Dead without issue. -Abbr. m.s.p.
most favorable light. See LIGHT MOST FAVORABLE.
most favored nation. A treaty status granted to a
nation, usu. in international trade, allOWing it to enjoy
the privileges that the other party accords to other
nations under similar circumstances . The primary
effect of most-favored-nation status is lower trade
tariffs. -Sometimes shortened to favored nation.
Abbr. MFN. Also termed most-favored-nation status.
[Cases: Treaties (::.:::8.]
most-favored-nation clause. 1. A clause in an agreement
between two nations providing that each will treat the
other as well as it treats any other nation that is given
preferential treatment. [Cases: Treaties (;:-.:>8.] 2. By
extension, such a clause in any contract, but esp. an oil
and-gas contract. -Often shortened to favored-nation
clause; MFN clause. -Also termed most-favored
nations clause. Cf. preferential tariff under TARIFF (2).
most-favored-nation status. See MOST FAVORED
NATION.
most-favored-nation treatment. Intellectual property.
The practice or policy of automatically and uncondi
tionally granting any intellectual-property protection,
advantage. favor, privilege, or immunity that by treaty
is extended to nationals of any member country to the
nationals ofall member countries . This treatment is
incorporated into the TRIPs agreement. Abbr. MFN
treatment.
most-favored-tenant clause. (1962) A commercial-lease
provision ensuring that the tenant will be given the
benefit of any negotiating concessions given to other
tenants.
most-signifIcant-contacts test. See MOST-SIGNIFICANT
RELATIONSHIPS TEST.
most-signifIcant-relationship test. (1968) Conflict of
laws. The doctrine that, to determine the state law to
apply to a dispute, the court should determine which
state has the most substantial connection to the occur
rence and the parties . For example, in a tort case, the
court should consider where the injury occurred, where
most suitable use 1106
the conduct that caused the injury occurred, the resi
dence, place of business, or place ofincorporation of the
parties, and the place where the relationship between
the parties, if any, is centered. Restatement (Second)
of Conflict of Laws 145 (1971). In a case involving a
contract, the court should consider where the contract
was made, where the contract was negotiated, where the
contract was to be performed, and the domicile, place
of business, or place of incorporation of the parties.
Id. 188. Also termed most-signifIcant-contacts test.
[Cases: Action
most suitable use. See highest and best use under USE
(1).
most-suitable-use value. See optimal-use value under
VALUE (2).
moteer (moh-teer). Hist. A customary payment or service
made at the lord's court.
mother. (bef. 12c) A woman who has given birth to,
provided the egg for, or legally adopted a child . The
term is sometimes interpreted as including a pregnant
woman who has not yet given birth. [Cases: Parent and
Child 1.]
adoptive mother. See adoptive parent under PARENT.
biological mother. (1965) The woman who provides
the egg that develops into an embryo . With to day's
genetic-engineering techniques, the biological mother
may not be the birth mother, but she is usu. the legal
mother. Also termed genetic mother; natural
mother. [Cases: Children Out-of-Wedlock (;:::::>1.]
birth mother. (1958) The woman who carries an embryo
during the gestational period and who delivers the
child. When a child is conceived through artifi
cial insemination, the birth mother may not be the
genetic or biological mother. And she may not be the
legal mother. Also termed gestational mother. See
surrogate mother; natural mother; biological mother.
[Cases: Child Custody (;:::::>274.5; Child Support
63; Children Out-of-Wedlock 15; Parent and
Child C=;)20.]
de facto mother. See de facto parent under PARENT.
foster mother. Seefoster parent under PARENT.
genetic mother. See biological mother.
gestational mother. See birth mother.
godmother. See GODPARENT.
intentional mother. See intentional parent under
PARENT.
natural mother. 1. See birth mother. 2. See biological
mother.
psychological mother. See psychological parent under
PARENT.
stepmother. (bef. 12c) The wife ofone's father by a later
marriage. [Cases: Child Custody (;:::::>272; Parent and
Child (;:::::>14.]
surrogate mother. (1914) 1. A woman who carries out
the gestational function and gives birth to a child for another; esp. a woman who agrees to provide her
uterus to carry an embryo throughout pregnancy,
typically on behalf of an infertile couple, and who
relinquishes any parental rights she may have upon
the birth of the child . A surrogate mother mayor
may not be the genetic mother of a child. Often
shortened to surrogate. -Also termed surrogate
parent; gestational surrogate; gestational carrier; sur
rogate carrier. [Cases: Child CustodyC;:)274.5; Child
Support Children Out-of-Wedlock (;:::::> 15;
Parent and Child (;:::::>20.] 2. A person who performs
the role of a mother. [Cases: Parent and Child
15.]
mother country. A colonizing nation; a colonial power.
See COLONY.
Mother Hubbard clause. (1939) 1. A clause stating that
a mortgage secures all the debts that the mortgagor
may at any time owe to the mortgagee. -Also termed
anaconda clause; dragnet clause. [Cases: Mortgages
14, 114, 121.] 2. Oil & gas. A provision in an oil
and-gas lease protecting the lessee against errors in the
description ofthe property by providing that the lease
covers all the land owned bv the lessor in the area . A
Mother Hubbard clause is ~ometimes combined with
an after-acquired-titIe clause. -Also termed cover-all
clause. 3. A court's written declaration that any relief
not expressly granted in a specific ruling or judgment is
denied. [Cases: Mines and Minerals (;::'55,73.1.]
mother-in-law. (14c) The mother ofa person's spouse.
motion. (18c) 1. A written or oral application request
ing a court to make a specified ruling or order. [Cases:
Federal Civil Procedure ()::;,921-928; Motions (;:::::> 1.]
calendar motion. (1930) A motion relating to the time
of a court appearance. Examples include motions to
continue, motions to advance, and motions to reset.
[Cases: Trial (;:::::>9-16.]
contradictory motion. Civil law. A motion that is likely
to be contested or that the nonmoving side should
have an opportunity to contest. Cf. contradictory
judgment under JUDGMENT.
cross-motion. A competing request for relief or orders
similar to that requested by another party against the
cross-moving party, such as a motion for summary
judgment or for sanctions.
dilatory motion (dil-<'l-tor-ee). (18c) 1. A motion made
solely for the purpose of delay or obstruction. 2. A
motion that delays the proceedings.
enumerated motion. Archaic. A motion directly related
to the proceeding or the merits of the case.
ex parte motion (eks pahr-tee), (1831) A motion made
to the court without notice to the adverse party; a
motion that a court considers and rules on without
hearing from all sides. Also termed ex parte appli
cation. [Cases: Federal Civil Procedure C=.:c921;
Motions (;:::::> 19.]
motion for reduction. Family law. A motion to lessen
the amount of child-support payments. -This is a
1107
type ofmotion to modify. [Cases: Child Support
331, 331.]
motionfor resettlement. A request to clarify or correct
the form of an order or judgment that does not cor
rectly state the court's decision. _ The motion cannot
be used to request a substantial change to or ampli
fication of the court's decision. [Cases: Motions C-::::)
49.]
motion ofcourse. A party's request that the court may
grant as a matter of routine, without investigating or
inquiring further. [Cases: Motions 36.]
motion to modify, A post-final-decree motion asking
the court to change one of its earlier orders; esp. a
request to change child support or visitation. Also
termed complaint for modification; motion for modifi
cation. [Cases: Child CustodyC~609; Child Support
C=>331; Divorce C=>245; Federal Civil Procedure <.::=)
921; Motions C=>58.]
omnibus motion. (1889) A motion that makes several
requests or asks for multiple forms of relief. [Cases:
Motions
posttrial motion. (1889) A motion made after judgment
is entered, such as a motion for new trial. [Cases:
Federal Civil Procedure C:):)2368, 2605; New Trial
show-cause motion. A motion filed with the court
requesting that a litigant be required to appear and
explain why that litigant has failed to comply with a
legal requirement.
speaking motion. (1935) A motion that addresses
matters not raised in the pleadings. [Cases: Federal
Civil Procedure C::>~) 1834 ; Motions C=> 1, 2.]
special motion. (16c) A motion specifically requiring
the court's discretion upon hearing, as distinguished
from one granted as a matter of course. [Cases:
Motions <'::=36.]
2. Parliamentary law. A proposal made in a meeting, in
a form suitable for its consideration and action, that the
meeting (or the organization for which the meeting is
acting) take a certain action or view. - A motion may be
a main motion or a secondary motion. A motion techni
cally becomes a "question" when the chair states it for
the meeting's consideration. But for most purposes,
the parliamentary terms "motion" and "question" are
interchangeable. Cf. REQUEST.
coexisting motion. Parliamentary law. A main motion,
such as one raising a question of privilege, that is
pending at the same time as another main motion of
lower precedence.
immediately pending motion. The pending motion
directly under consideration; the pending motion
last stated by the chair and next in line for a vote. See
pending motion; PRECEDENCE (4).
improper motion. A motion that is out of order. See
OUT OF ORDER.
incidental main motion. A main motion that relates
to a procedural rather than a substantive matter; an motion
otherwise secondary motion, made when no main
motion is pending.- Also termed procedural main
motion; quasi-main motion; specific main motion. See
main motion. Cf. original main motion.
incidental motion. A secondary motion that relates to
the procedure under which other business is consid
ered. See secondary motion.
main motion. A motion that brings business before a
meeting. - A main motion may be an original main
motion or an incidental main motion. -Also termed
principal motion; proposition.
ordinary main motion. See original main motion.
original main motion. A main motion that relates to a
substantive rather than a procedural matter; a main
motion that is not an incidental main motion.
Also termed ordinary main motion; substantive main
motion; substantive motion. See main motion. Cf. inci
dental main motion.
parliamentary motion. 1. Any motion that is not an
original main motion that is, any motion that is
either a secondary motion or an incidental main
motion. 2. A motion under parliamentary law;
MOTION (2).
pending motion. A motion under consideration,
even though other pending motions of higher rank
may have taken precedence over it. Cf. immediately
pending motion.
principal motion. See main motion.
privileged motion. A secondary motion that does not
relate to other business, but rather to the organiza
tion, the meeting, its members, and their rights and
privileges, and is thus entitled to prompt attention in
preference over other pending business. See secondary
motion; PRIVILEGE (6).
procedural main motion. See incidental main
motion.
procedural motion. A motion that relates to the manner
in which a meeting conducts its business, rather than
to the business itself. - A procedural motion may be
either an incidental motion (including an incidental
main motion) or aprivileged motion.
quasi-main motion. See incidental main motion.
restorative motion. A motion that renews consid
eration of a question already disposed of. Also
termed restoratory motion.
restoratory motion. See restorative motion.
secondary motion. A motion that does not itself bring
business before the meeting, and is therefore in order
when a main motion is pending. - A secondary
motion may be either an incidental motion (although
not an incidental main motion), a privileged motion,
or a subSidiary motion. Cf. main motion.
specific main motion |
an incidental main motion), a privileged motion,
or a subSidiary motion. Cf. main motion.
specific main motion. See incidental main motion.
subsidiary motion. A secondary motion that directly
affects the main motion's form or consideration. See
secondary motion.
1108 motion for a directed verdict
substantive main motion. See original main motion.
substantive motion. See original main motion.
motion for a directed verdict. See MOTION FOR DIRECTED
VERDICT.
motion for a more definite statement. See MonON FOR
MORE DEFINITE STATEMENT.
motion for a new trial. See MOTION FOR NEW TRIAL.
motion for a protective order. See MOTION FOR PROTEC
TIVEORDER.
motion for directed verdict. (1904) A party's request
that the court enter judgment in its favor before sub
mitting the case to the jury because there is no legally
sufficient evidentiary foundation on which a reasonable
jury could find for the other party . Under the Federal
Rules ofCivil Procedure, the equivalent court paper is
known as a motion for judgment as a matter oflaw. -
Abbr. MDV. Also termed motion for a directed
verdict. See MonON FOR JUDGMENT AS A MATTER OF
LAW; directed verdict under VERDICT. [Cases: Federal
Civil Procedure Trial C=c167.]
motion for j.n.o.v. See MOTION FOR JUDGMENT NOT
WITHSTANDING THE VERDICT.
motion for judgment as a matter of law. (1956) A
party's request that the court enter a judgment in its
favor before the case is submitted to the jury, or after
a contrary jury verdict, because there is no legally suf
ficient evidentiary basis on which a jury could find for
the other party . Under the Federal Rules ofCivil Pro
cedure, a party may move for judgment as a matter
of law anytime before the case has been submitted to
the jury. This kind of motion was formerly known as a
motion for directed verdict (and still is in many jurisdic
tions). If the motion is denied and the case is submit
ted to the jury, resulting in an unfavorable verdict, the
motion may be renewed within ten days after entry of
the judgment. This aspect of the motion replaces the
court paper formerly known as a motion for judgment
notwithstanding the verdict. Fed. R. Civ. P. 50. [Cases:
Federal Civil Procedure C=c212 1, 2605; Judgment
199; Trial
motion for judgment notwithstanding the verdict.
(1822) A party's request that the court enter a judgment
in its favor despite the jury's contrary verdict because
there is no legally sufficient evidentiary basis for a jury
to find for the other party . Under the Federal Rules
of Civil Procedure, this procedure has been replaced by
the provision for a motion for judgment as a matter of
law, which must be presented before the case has been
submitted to the jury but can be reasserted if it is denied
and the jury returns an unfavorable verdict. Fed. R. Civ.
P. 50. -Also termed motion for j.n.o. v. See MOTION FOR
JUDGMENT AS A MATTER OF LAW. [Cases: Federal Civil
Procedure Judgment C=c 199.]
motion for judgment of acquittal. (1923) A criminal
defendant's request, at the close of the government's
case or the close ofall evidence, to be acquitted because
there is no legally sufficient evidentiary basis on which a reasonable jury could return a guilty verdict. _ If
the motion is granted, the government has no right of
appeal. Fed. R. Crim. P. 29(a). -Abbr. MJOA. [Cases:
Criminal LawC=c753.2.]
motion for judgment on the pleadings. (1923) A party's
request that the court rule in its favor based on the
pleadings on file, without accepting evidence, as when
the outcome of the case rests on the court's interpreta
tion ofthe law. Fed. R. Civ. P. 12(c). [Cases: Federal Civil
Procedure Pleading C=c342.]
motion for leave to appeal. (1874) A request that an
appellate court review an interlocutory order that
meets the standards ofthe collateral-order doctrine.
Abbr. MLA. See COLLATERAL-ORDER DOCTRINE.
[Cases: Appeal and Error C=c358; Federal Courts
660.30.]
motion for modification. See motion to modify under
MOTION (1).
motion for more definite statement. (1904) A party's
request that the court require an opponent to amend
a vague or ambiguous pleading to which the party
cannot reasonably be required to respond. Fed. R. Civ.
P. 12(e). Also termed motion for a more definite state
ment. [Cases: Federal Civil ProcedureC=c957; Pleading
C=c367.]
"Another disfavored motion is the motion for a more
definite statement. Bya 1948 amendment to the rules,
the old bill of particulars was abolished. The motion for
more definite statement, which serves much the same
function, is to be granted only where a pleading to which a
responsive pleading is permitted is so vague or ambiguous
that the party cannot reasonably be required to frame a
responsive pleading. If the pleading is sufficiently definite
that the opponent can reply to it, the motion for more
definite statement should be denied and any particulars
that the opponent needs to prepare for trial obtained by
depositions, interrogatories, and similar discovery proce
dures. The motion is never proper where no responsive
pleading is permitted, nor should it be used to force the
plaintiff to include additional particulars that may make
the complaint vulnerable to a motion to dismiss." Charles
Alan Wright, The Law of Federal Courts 66, at 461-62
(5th ed. 1994).
motion for new trial. (l8c) A party's postjudgment
request that the court vacate the judgment and order
a new trial for such reasons as factually insufficient
evidence, newly discovered evidence, and jury miscon
duct. In many jurisdictions, this motion is required
before a party can raise such a matter on appeaL
Also termed motion for a new trial. [Cases: Criminal
Law C=c948; Federal Civil Procedure C=c2368; New
Trial C=c 124(1).]
motion for protective order. (1948) A party's request
that the court protect it from potentially abusive action
by the other party, usu. relating to discovery, as when
one party seeks discovery of the other party's trade
secrets. A court will sometimes craft a protective
order to protect one party's trade secrets by ordering
that any secret information exchanged in discovery
be used only for purposes of the pending suit and not
be publicized. Also termed motion for a protective
1109
order. [Cases: Federal Civil Procedure C::>1271; Pretrial
Procedure ~41.]
motion for reduction. See MOTION (1).
motion for relief from stay. See MOTION TO LIFT THE
STAY.
motion for relief from the judgment. (1867) A party's
request that the court correct a clerical mistake in the
judgment -that is, a mistake that results in the judg
ment's incorrectly reflecting the court's intentions -or
relieve the party from the judgment because of such
matters as (1) inadvertence, surprise, or excusable
neglect, (2) newly discovered evidence that could not
have been discovered through diligence in time for a
motion for new trial, (3) the judgment's being the result
offraud, misrepresentation, or misconduct by the other
party, or (4) the judgment's being void or haVing been
satisfied or released. Fed. R. Civ. P. 60. Cf. MOTION TO
ALTER OR AMEND THE JUDGMENT. [Cases: Federal Civil
Procedure Judgment~336-402.]
motion for repleader. (18c) Common-law pleading. An
unsuccessful party's posttrial motion asking that the
pleadings begin anew because the issue was joined
on an immaterial point. The court never awards a
repleader to the party who tendered the immaterial
issue. Cf. REPLEADER. [Cases: PleadingC::>286.]
motion for resettlement. See MOTION (1).
motion for summary judgment. (1842) A request that
the court enter judgment without a trial because there is
no genuine issue ofmaterial fact to be decided by a fact
finder that is, because the evidence is legally insuf
ficient to support a verdict in the nonmovant's favor .
In federal court and in most state courts, the movant
defendant must point out in its motion the absence of
evidence on an essential element ofthe plaintiff's claim,
after which the burden shifts to the nonmovant-plain
tiff to produce evidence raising a genuine fact issue.
But ifa party moves for summary judgment on its own
claim or defense, then it must establish each element of
the claim or defense as a matter ofIaw. Fed. R. Civ. P.
56. -Abbr. MSJ. -Also termed summary-judgment
motion; motion for summary disposition. See SUMMARY
JUDGMENT. [Cases: Federal Civil Procedure <::--~2533;
Judgment (;=181(2), 183.]
motion in arrest ofjudgment. (17c) 1. A defendant's
motion claiming that a substantial error appearing on
the face ofthe record vitiates the whole proceeding and
the judgment. 2. A postjudgment motion in a criminal
case claiming that the indictment is insufficient to
sustain a judgment or that the verdict is somehow
insufficient. [Cases: Criminal Law ~966-976.]
motion in limine (in lim~-nee). (I8c) A pretrial request
that certain inadmissible evidence not be referred to or
offered at trial. -Typically, a party makes this motion
when it believes that mere mention of the evidence
during trial would be highly prejudicial and could not
be remedied by an instruction to disregard. If, after
the motion is granted, the opposing party mentions or
attempts to offer the evidence in the jury's presence, a motion to dissolve interference
mistrial may be ordered. A ruling on a motion in limine
does not always preserve evidentiary error for appel
late purposes. To raise such an error on appeal, a party
may be required to formally object when the evidence
is actually admitted or excluded during trial. [Cases:
Criminal Law~632(4); Federal Civil Procedure
927.5; Pretrial Procedure
motion ofcourse. See MOTION (1).
motion to alter or amend the judgment. (1950) A party's
request that the court correct a substantive error in the
judgment, such as a manifest error oflaw or fact.
Under the Federal Rules of Civil Procedure, a motion
to alter or amend the judgment must be filed within ten
days after the judgment is entered. It should not ordi
narily be used to correct clerical errors in a judgment.
Those types oferrors -that is, errors that result in the
judgment not reflecting the court's intention -may be
brought in a motion for relief from the judgment, which
does not have the ten-day deadline. A motion to alter
or amend the judgment is usu. directed to substantive
issues regarding the judgment, such as an intervening
change in the law or newly discovered evidence that was
not available at trial. Fed. R. Civ. P. 59(e). Cf. MOTION
POR RELIEF PROM THE JUDGMENT. [Cases: Federal Civil
Procedure C=)2659; Judgment C:)'294-333.]
motion to compel discovery. (1960) A party's request
that the court force the party's opponent to respond to
the party's discovery request (as to answer interroga
tories or produce documents), Fed. R. Civ. P. 37(a).
Often shortened to motion to compel. Also termed
motion to enforce discovery. [Cases: Federal Civil Proce
dure ~1278; Pretrial Procedure 310,434.]
motion to correct inventorship. Patents. A request in an
interference proceeding to add one or more unnamed
coinventors to the patent application . The motion will
be granted unless the unnamed coinventor acted with
the intent to deceive. [Cases: Patents <::::::::> 106(1).]
motion to dismiss. (18c) A request that the court dismiss
the case because of settlement, voluntary withdrawal,
or a procedural defect. -Under the Federal Rules of
Civil Procedure, a plaintiff may voluntarily dismiss
the case (under Rule 41(a)) or the defendant may ask
the court to dismiss the case, usu. based on one ofthe
detenses listed in Rule 12{b).These defenses include lack
of personal or subject-matter jurisdiction, improper
venue, insufficiency ofprocess, the plaintiff's failure
to state a claim on which relief can be granted, and the
failure to join an indispensable party. A defendant will
frequently file a motion to dismiss for failure to state
a claim, which is governed by Rule 12(b)(6), claiming
that even if all the plaintiff's allegations are true, they
would not be legally sufficient to state a claim on which
relief might be granted. Abbr. MID. See DEMURRER.
[Cases: Criminal Law ~303.5-303.35; Federal Civil
Procedure 1707,1825; Pretrial Procedure C::>511,
675.]
motion to dissolve interference. Patents. A request by
the senior party to dismiss challenges to its priority as
the first inventor. [Cases: Patents (.;::;:, 106(5).]
1110 motion to enforce discovery
motion to enforce discovery. See MOTION TO COMPEL
DISCOVERY.
motion to lift the stay. (1969) Bankruptcy. A party's
request that the bankruptcy court alter the automatic
bankruptcy stay to allow the movant to act against the
debtor or the debtor's property, as when a creditor seeks
permission to foreclose on a lien because its security
interest is not adequately protected. -Also termed |
itor seeks
permission to foreclose on a lien because its security
interest is not adequately protected. -Also termed
motion for relief from stay; motion to modify the stay.
[Cases: Bankruptcy C=='2435.]
motion to modify. See MOTION (1).
motion to modify the stay. See MOTION TO LIFT THE
STAY.
motion to quash (kwahsh). (l8c) A party's request that
the court nullify process or an act instituted by the
other party, as in seeking to nullify a subpoena. [Cases:
Witnesses C=='9, 16.]
motion to remand. (1816) In a case that has been
removed from state court to federal court, a party's
request that the federal court return the case to state
court, usu. because the federal court lacks jurisdic
tion or because the procedures for removal were not
properly followed. 28 USCA 1447(c). [Cases: Removal
of Cases C==' 107.]
motion to strike. (1806) 1. Civil procedure. A party's
request that the court delete insufficient defenses or
immaterial, redundant, impertinent, or scandalous
statements from an opponent's pleading. Fed. R. Civ.
P. 12(f). [Cases: Federal Civil Procedure 1144;
Pleading C=='351, 361.] 2. Evidence. A request that inad
missible evidence be deleted from the record and that
the jury be instructed to disregard it. [Cases: Federal
Civil Procedure C=='20l8; Trial C=='88.]
motion to suppress. (I8c) A request that the court
prohibit the introduction ofillegally obtained evidence
at a criminal trial. [Cases: Criminal Law C=='394.6.]
motion to transfer venue. (I934) A request that the
court transfer the case to another district or county,
usu. because the original venue is improper under the
applicable venue rules or because oflocal prejudice. See
VENUE; CHANGE OF VENUE. [Cases: Criminal Law C=='
115-144; Federal Courts C==' 141; Venue C=='58.]
motion to withdraw. 1. An attorney's request for a
court's permission to cease representing a client in a
lawsuit. 2. A defendant's formal request for a court's
permission to change the defendant's plea or strike
an admission. -Also termed (in sense 2) motion to
withdraw a plea. [Cases: Attorney and Client C=='76(l);
Criminal Law C==' 1831.]
motion to withdraw a plea. See MOTION TO WITHDRAW
(2).
motive. (14c) Something, esp. willful desire, that leads
one to act. -Also termed ulterior intent. Cf. INTENT.
"The term 'motive' is unfortunately ambiguous. That
feeling which internally urges or pushes a person to do or
refrain from doing an act is an emotion, and is of course
evidential towards his doing or not doing the act. But when
that evidential fact comes in turn to be evidenced, we must rely on two sorts of data, (a) the person's own expressions
of that emotion, e.g., 'I hate M,' or 'I wish I owned that
necklace'; and (b) external circumstances likely in human
experience to arouse the emotion, e.g., a slander on D may
be evidence that D became angry; a purse of money left in
sight of D may be evidence that D's desire to have it was
aroused. Now this second sort of evidential circumstance
(b) is loosely referred to as 'motive,' -though in reality it
is only evidential of the emotion, which itself is evidential
of the act." John H. Wigmore, A Students' Textbook of the
Law of Evidence 76 (1935).
bad motive. (l8c) A person's knowledge that an act is
wrongful while the person commits the act.
malicious motive. (l8c) A motive for bringing a pros
ecution, other than to do justice. [Cases: Malicious
Prosecution C=='30.]
Motor Carrier Act. A federal statute, originally enacted
in 1935 (49 USCA 502-507), subjecting commer
cial motor carriers of freight and passengers in inter
state commerce to the regulations of the Interstate
Commerce Commission, now the U.S. Department of
Transportation . The Act was repealed in the 1980s.
[Cases: Automobiles C=='60.]
MOU. abbr. MEMORANDUM OF UNDERSTANDING.
movable, n. (usu. pl.) (l5c) 1. Property that can be moved
or displaced, such as personal goods; a tangible or intan
gible thing in which an interest constitutes personal
property; specif., anything that is not so attached to
land as to be regarded as a part of it as determined by
local law. -Also termed movable property; movable
thing. [Cases: Property C:::)4.]
"Movables and immovables. The main distinction drawn
in later Roman law and modern systems based thereon
between kinds of things subject to ownership and pos
session. While basically the distinction corresponds to
everyday conceptions, assigning animals and vehicles to
the former and land and buildings to the latter category,
particular things may be assigned to one category rather
than the other for reasons of convenience. Thus, in French
law, farm implements and animals are immovables. The
distinction is also important in international private law,
more so than that between real and personal ... Thus,
land held on lease is personal property by English law for
historical reason, but in international private law it is a
right in immovable property." David M. Walker, The Oxford
Companion to Law 858 (1980).
intangible movable. A physical thing that can be
moved but that cannot be touched in the usual sense.
Examples are light and electricity.
'''Intangible movables' is a term of art in the common law
which has been applied more widely than its meaning lit
erally justifies, which is merely to those things that have
physical existence and can be moved, though cannot be
touched in the normal sense, such as light, electricity and
radioactive waves. In English law the term has been gener
ally applied to interests created by law which have only a
legal, not a physical existence, and are accordingly capable
only of legal, not phYSical, movement. It is convenient,
however, to retain a term which is generally accepted and
understood in this special legal meaning." R.H. Graveson,
Conflict of Laws 470 (7th ed. 1974).
2. Scots law. A nonheritable right. -Also spelled (in
BrE) moveable. Cf. IMMOVABLE. -movable, adj.
"Moveables are, in the phraseology of the law of Scotland,
opposed to heritage; so that every species of property,
1111 mulierty
and every right a person can hold, is by that law either i MSA. abbr. See mediated settlement agreement under
heritable or moveable. Hence, moveables are not merely
corporeal subjects capable of being moved, but every
species of property, corporeal or incorporeal, which does
not descend to the heir in heritage." William Bell, Bell's
Dictionary and Digest of the Law ofScotland 662 (George
Watson ed., 1882).
movable estate. See personal property (1) under PRO
PERTY.
movable fixture. See tenant's fixture under FIXTURE.
movable freehold. See FREEHOLD.
movable property. See MOVABLE (1).
movable thing. See MOVABLE (1).
movant (moov-:mt). (1875) One who makes a motion
to the court or a deliberative body. -Formerly also
spelled movent. -Also termed moving party; mover.
Also termed movingparty; mover. [Cases: Federal Civil
Procedure C=-.:c921; Motions C= 11.]
move, vb. (I5c) 1. To make an application (to a court)
for a ruling, order, or some other judicial action <the
appellant moved the court for a new trial>. [Cases:
Federal Civil Procedure C='921; Motions 1.] 2,
To make a motion <the senator moved that a vote be
taken>. See MOTION (2).
moveable. See MOVABLE.
movent. See MOVANT.
mover, n. 1. Slang. A stock that experiences spectacu
lar market price changes; a very unstable stock. 2.
MOVANT.
moving expense. See EXPENSE.
moving papers. The papers that constitute or support a
motion in a court proceeding. -Also termed motion
papers. [Cases: Federal Civil Procedure (;=921;
Motions C=::>2S.J
moving part. Patents. A separate component ofan appa
ratus that works together with another to produce the
intended useful result. -Moving parts and a rule of
operation generally distinguish an apparatus from an
article ofmanufacture.
moving party. See MOVANT.
moving violation. (1954) An infraction of a traffic law
while the vehicle is in motion. [Cases: Automobiles
144.1(3),349.]
Mozilla public license. See LICENSE.
MP. abbr. Member ofParliament. See PARLIAMENT.
MPC. abbr. MODEL PENAL CODE.
MPC test. See SUBSTANTIAL-CAPACITY TEST.
MPEP. abbr. MANUAL OF PATENT EXAMINING PROCE
DURE.
MPL. abbr. Mozilla public license. See Mozilla public
license under LICENSE.
Mr. Denman's Act. See DENMAN'S ACT (2).
MRE. abbr. MILITARY RULES OF EVIDENCE. SETTLEMENT (2).
MSHA. abbr. MINE SAFETY AND HEALTH ADMINISTRA
TION.
MSJ. abbr. MOTION FOR SUMMARY JUDGMENT.
m.s.p. abbr. MORTUUS SINE PROLE.
MSPB. abbr. MERIT SYSTEMS PROTECTION BOARD.
MSTB. abbr. MODEL STATE TRADEMARK BILL.
MTD. abbr. MOTION TO DISMISS.
MUD. abbr. See municipal utility district under
DISTRICT.
mug book. (1947) A collection ofmug shots of criminal
suspects maintained by law-enforcement agencies (such
as the FBI and police departments) to be used in iden
tifying criminal offenders.
mug shot. (1950) A photograph of a person's face taken
after the person has been arrested and booked.
mulct (mCllkt), n. (16c) A fine or penalty.
mulct, vb. (17c) 1. To punish by a fine. 2. To deprive or
divest of, esp. fraudulently.
mulct law. Hist. An Iowa law that allowed some saloons
to pay the state a sum ofmoney and continue to operate
despite a statewide prohibition against alcohol sales.
While the money paid was called a mulct, it was effec
tivelya licensing tax rather than a criminal penalty
because continuing violations of the liquor law were
not prosecuted.
mule. Slang. A person hired to smuggle contraband, esp.
a controlled substance, and deliver it to the distribu
tor at a destination point . For example, a drug mule
might carry cocaine through a security checkpoint by
concealing it beneath a suitcase's false bottom.
mulier (myoo-Iee-Clr), n. [Latin]l. Roman law. A woman.
This term at various times referred to a marriageable
virgin, a woman not a virgin, a wife, or a mistress. 2.
Hist. & Scots law. A legitimate son; the son of a mulier
("lawful wife").
mulieratus filiUS (myoo-lee-er-<l-tCls fil-ee-ds). Hist. &
Scots law. A legitimate son or daughter; the son of a
mulier ("lawful wife").
mulierpuisne (myoo-Iee-Clr pyoo-nee), [Law Latin] Hist.
The younger lawful son, usu. distinguished from the
bastard eigne ("the elder bastard son").
"The common law developed one exception to its harsh
doctrine of bastardy. Where the eldest son was born
out of wedlock (the bastard eigne) and the next son was
born to the same parents after the marriage (the mulier
puisne), and upon the ancestor's death the bastard eigne
entered as heir and remained in undisturbed possession
until his own death, the bastard eigne was treated as if he
had been legitimate with respect to the inheritance of that
land. The reason given by Littleton was that a person who
was legitimate by the Canon law could not be bastardised
posthumously, when he no longer had the opportunity to
contest the issue," J.H. Baker, An Introduction to English
Legal History 559 (3d ed. 1990).
mulierty (myoo-Iee-Clr-tee). Hist. The condition of a
legitimate child, as distinguished from a bastard.
1112 multa
multa (m<ll-t<l), n. [Latin "a fine"] Hist. Eccles. law. A fine
the bishops paid to the king so that they could make
and probate wills and administer estates. -Also
termed multura episcopi (m<ll-t[y]oor-<l i-pis-k<l-pI).
multicraft union. See UNION.
multidisciplinary practice. A fee-sharing association
oflawyers and nonlawyers in a firm that delivers both
legal and nonlegal services . Rule 5.4 of the Model
Rules of Professional Conduct effectively bars multi
disciplinary practice. Under this rule, a lawyer cannot
(1) share legal fees with nonlawyers, (2) form a partner
ship involving the practice oflaw with nonlawyers, (3)
form a law firm in which a nonlawyer has an interest,
or (4) allow a nonlawyer to direct the lawyer's profes
sional judgment. -Abbr. MDP. -Sometimes termed
multidisciplinary practice oflaw. [Cases: Attorney and
Client c=>10.]
multidistrict litigation. (1966) Civil procedure. Federal
court |
Attorney and
Client c=>10.]
multidistrict litigation. (1966) Civil procedure. Federal
court litigation in which civil actions pending in differ
ent districts and involving common fact questions are
transferred to a single district for coordinated pretrial
proceedings, after which the actions are returned to
their original districts for trial. Multidistrict litiga
tion is governed by the Judicial Panel on Multidistrict
Litigation, which is composed of seven circuit and
district judges appointed by the Chief Justice of the
United States. 28 USC A 1407. -Abbr. MDL. [Cases:
Federal Civil Procedure C=>9; Federal Courts C=>
151-157.]
Multiethnic Placement Act of 1994. A model statute
intended to (1) decrease the length oftime that a child
awaits adoption, (2) identify and recruit adoptive and
foster parents who can meet the needs of available
children, and (3) eliminate adoption discrimination
based on race, color, or national origin of the child or
the adoptive parents. -Abbr. MEPA.
multifarious (m<ll-t<l-fair-ee-<ls), adj. (16c) 1. (Of a single
pleading) improperly joining distinct matters or causes
of action, and thereby confounding them. [Cases:
Federal Civil Procedure C=>676; Pleading C=>SO, 64.]
2. Improperly joining parties in a lawsuit. 3. Diverse;
many and various. -multifariousness, n.
multifarious issue. See ISSUE (1).
multilateral, adj. (1827) Involving more than two parties
<a multilateral agreement>.
multilateral advance pricing agreement. See ADVANCE
PRICING AGREEMENT.
multilevel-distribution program. See PYRAMID
SCHEME.
multimaturity bond. See put bond under BOND (3).
multimodal shipping. The transportation of freight
using more means of carriage and usu. more than one
carrier. For example, a cargo may be carried first by
air or sea, then by rail or truck to its destination. -Also
termed intermodal transport; multimodal carriage.
multinational corporation. See CORPORATION. multipartite, adj. (17c) (Of a document, etc.) divided into
many parts.
multiperil policy. See INSURANCE POLICY.
multiple access. See ACCESS (4).
multiple admissibility. See ADMISSIBILITY.
multiple-class application. See combined application
under TRADEMARK APPLICATION.
multiple counts. See COUNT.
multiple damages. See DAMAGES.
multiple-dependent claim. See PATENT CLAIM.
multiple evidence. See EVIDENCE.
multiple hearsay. See double hearsay under HEARSAY.
multiple interest. See INTEREST (2).
multiple job-holding. See MOONLIGHTING.
multiple listing. See LISTING (1).
multiple offense. See OFFENSE (1).
multiple-party account. See ACCOUNT.
multiple sentences. See SENTENCE.
multiplicity (m<ll-t<l-plis-i-tee), n. Criminal procedure.
The improper charging of the same offense in more
than one count of a single indictment or information.
Multiplicity violates the Fifth Amendment protec
tion against double jeopardy. [Cases: Indictment and
Information C=>126.] -multiplicitous (m<ll-t<l-plis
i-t<ls), adj.
multiplicity of actions. (17c) The existence of two or
more lawsuits litigating the same issue against the
same defendant. -Also termed multiplicity ofsuits;
multiplicity ofproceedings. See PIECEMEAL LITIGATION.
[Cases: Action C=>S3.]
multiplicity ofclaims. See AGGREGATION OF CLAIMS.
multiplied damages. See multiple damages under
DAMAGES.
Multistate Bar Examination. See BAR EXAMINATION.
multistate corporation. See CORPORATION.
multital (mal-ti-t<ll), adj. (1917) 1. Ofor relating to legal
relations that exist among three or more people, esp. a
multitude ofpeople. Cf. UNITAL.
"Tort and breach of contract are alike breaches of duty,
but in the case of tort the pre-existing duty of the wrong
doer was one that was shared by every other member of
society; and the injured party whose right was violated
had not merely one right, he had a multitude of rights. His
rights and the correlative duties of others were 'multital.'
The secondary right and duty, however, arising from the
tort, are relations that exist between the two persons only.
They are 'unital.' In the case of a breach of contract, both
the primary right and duty and the secondary right and
duty are 'unital.'" William R. Anson, Principles of the Law of
Contract 11 (Arthur L. Corbin ed., 3d Am. ed. 1919).
2. Rare. See IN REM.
multura episcopi. See MULTA.
multure. Hist. 1. A quantity of grain that was paid to
a mill's owner or tenant in exchange for grinding the
1113
remaining grain. 2. A miller's right to payment in grain
for milling services rendered.
Munchausen syndrome by proxy (man-chow-z ..n). A
condition in which a caregiver, usu. a parent, fabri
cates or induces a child's medical condition and seeks
medical treatment for the child on the basis ofthe fab
rications or induced condition . This syndrome is a
kind ofchild abuse, esp. when the victim is subjected
to repeated medical examinations and treatment, often
ofan invasive nature, and sometimes even to physical
injuries that induce symptoms consistent with the fal
sified medical condition. The parent is usu. emotion
ally deprived and fabricates or causes the child's illness
or medical condition as an attention-getting device.
[Cases: Infants (;=:' 156, 158.]
mund (m..nd or muund). [Old English "hand"] Hist. A
right to protection or guardianship; a guardian. Cf.
MANUS (1).
"Once more we see prerogatival rights growing, while
feudal claims fall into the background; and in the case
of lunacy we see a guardianship, a mund, which is not
profitable to the guardian, and this at present is a novel
and noteworthy thing." 1 Frederick Pollock & Frederic W.
Maitland, The History of English Law Before the Time of
Edward 1481 (2d ed. 1898).
mundium (man-dee-dm). [Law Latin] The legal protec
tion and representation granted to a person who is
socially and phYSically weak.
'In a society of persons in which the authority to maintain
the law was in the hands of its members, and of which the
membership rested on the ability to bear arms and defend
oneself ('weer'), those who. for want of strength or some
other reason, were unable to do so. could not play an active
part, and were necessarily placed under the authority of
those whose protection they needed. Originally, mundium
was not limited to family law. Gradually it lost its wider
meaning, and in its restricted sense it received different
applications, as family relations became classified into
separate groups, and the conception of mundium appeared
under different forms. with special rules and speCial
names -e.g., marital power, parental power, guardian
ship, and curatorship." Alexander Wood Renton & George
Grenville Phillimore, The Comparative Law ofMarriage and
Divorce 10 (1910).
munera (myoo-ndr-d), n. [Law Latin "graces"] Hist.
Tenancies at will; tenancies made at the grantor's
pleasure.
munerapublica (myoo-n..r-d PJb-li-b). [Latin] Roman
law. Public duties, such as performing the offices of
tutor and curator, and of index privatus. Sing. munus
publicum.
"Among the Romans there were certain offices regarded
as public duties, which no citizen (unless he could plead
certain speCified excuses) could refuse to accept of and
fulfil; and among these were included the offices of
tutor and curator. These offices are voluntary by the law
of Scotland, and their acceptance, as well as the perfor
mance of the attendant duties. cannot be imposed upon
anyone against his own wish. But if the office has been
once accepted and acted upon. the tutor or curator cannot
resign it. He must perform the duties of his office until
it expires through the death, attainment of minority or
majority, as the case may be, or it may be through the
marriage of the ward, and he will be liable for the conse
quences of his neglect, as well as the consequences of his municipal law
actings and intromissions." John Trayner, Trayner's Latin
Maxims 364 (4th ed. 1894).
muni (myoo-nee), n, See municipal bond under BOND
(3).
municeps (myoo-nd-seps), n. [fr. Latin munus "office" +
capere "to take"] Roman law. 1. A citizen of a munici
pality (municipium), 2. A member of the council of a
municipium. PI. municipes (myoo-ni-sip-eez).
municipal, adj. (16c) 1. Of or relating to a city, town,
or local governmental unit. 2. Of or relating to the
internal government ofa state or nation (as contrasted
with international).
municipal, n. See muniCipal bond under BOND (3).
municipal action. Any authorized exercise of govern
mental power by a municipal officer, board, agency, or
other municipal body. [Cases: Municipal Corporations
(;::>61.]
municipal affairs. The matters relating to the local gov
ernment of a municipality. [Cases: Municipal Corpo
rations
municipal aid. Financial or other assistance provided
by a municipality to a private business, usu, to encour
age it to relocate to the municipality. [Cases: Municipal
Corporations (;::>872.]
municipal attorney. See CITY ATTORNEY.
municipal bond. See BOND (3).
municipal charter. See CHARTER (2).
municipal corporation. A city, town, or other local
political entity formed by charter from the state and
having the autonomous authority to administer the
state's local affairs; esp., a public corporation created for
political purposes and endowed with political powers to
be exercised for the public good in the administration
oflocal civil government. Also termed municipal
ity. Cf. quaSi-corporation under CORPORATION. [Cases:
Municipal Corporations (;::> 1.1.]
municipal corporation de facto. A corporation rec
ognized to exist, although it has not fully complied
with statutory requirements, when there is (1) a valid
law authorizing its incorporation, (2) a colorable and
bona fide attempt to organize under that law, and (3)
an assumption of powers conferred under that law.
[Cases: Municipal Corporations (;::> 17.J
municipal court. See COURT.
municipal domicile. See DOMICILE.
municipal election. See ELECTION (3).
municipal function. 1he duties and responsibilities that
a municipality owes its members.
municipal government. See local government under
GOVERNMENT.
municipality. (l8c) 1. MUNICIPAL CORPORATION. 2. The
governing body ofa municipal corporation,
municipal judge. See rUDGE.
municipal law. 1. The ordinances and other laws appli
cable within a city, town, or other local governmental
1114 municipal lien
entity. [Cases: Municipal Corporations 2. The
internal law of a nation, as opposed to international
law.
municipal lien. See LIEN.
municipal officer. See OPFICER (1).
municipal ordinance. See ORDINANCE.
municipal security. See municipal bond under BOND
(3).
municipal utility district. See DISTRICT.
municipal warrant. See WARRANT (2).
municipium (myoo-na-sip-ee-am), n. [Latin "free town"]
Roman law. A self-governing town; specif., any com
munity allied with or conquered by Rome and allowed
to maintain certain privileges (such as maintaining
separate laws called leges municipales) . The members
of a municipium were also Roman citizens. PI. muni
cipia (myoo-ni-sip-ee-a).
muniment (myoo-n<l-m<lnt). (I5c) A document (such as a
deed or charter) eVidencing the rights or privileges ofa
person, family, or corporation. Also termed (archai
cally) miniment. [Cases: Corporations
muniment house. Hist. A place (such as a room in a
castle or cathedral) where titles, deeds, and other evi
dences of title are stored.
muniment of title. (1806) Documentary evidence of
title, such as a deed or a judgment regarding the own
ership ofproperty. Also termed common assurance.
See CHAIN OP TITLE. [Cases: Property
mural monument. See MONUMENT.
murder, n. (bef. 12c) The killing of a human being with
malice aforethought. At common law, the crime of
murder was not subdivided, but many state statutes
have adopted the degree structure outlined below,
though the Model Penal Code has not. Model Penal
Code 210.2. See MALlCE AFORETHOUGHT. Cf. MAN
SLAUGHTER. [Cases: Homicide murder,
vb. -murderous, adj.
"The word 'murder' has ... had a devious history. Its
original sense is the particularly heinous crime of secret
slaying. After the conquest it was observed that Normans
were frequently found dead under mysterious circum
stances, and so William I enacted that ifanyone were found
slain and the slayer were not caught, then the hundred
should pay a fine; this fine is a murdrum. The practice soon
grew up to taking inquests and if it were presented that the
dead man was English, |
murdrum. The practice soon
grew up to taking inquests and if it were presented that the
dead man was English, then the fine was not due. In 1267
it was enacted that accidental deaths should not give rise
to murdrum, and finally in 1340 presentment of Englishry
and murdrumwere abolished. Henceforth the word slowly
tends to get linked up with 'malice aforethought' and so we
get the classical formulae describing the crime of murder."
Theodore F.T Plucknett, A Concise History ofthe Common
Law 445 (5th ed. 1956).
constructive murder. See felony murder.
depraved-heart murder. (1975) A murder resulting
from an act so reckless and careless of the safety of
others that it demonstrates the perpetrator's complete
lack of regard for human life. Also termed depraved-indifference murder; unintentional murder.
[Cases: Homicide <">::>533.]
felony murder. (1926) Murder that occurs during the
commission of a dangerous felony (often limited to
rape, kidnapping, robbery, burglary, and arson).
Also termed unintentional murder; (in English law)
constructive murder. See FELONY-MURDER RULE.
[Cases: Homicide (;::::0580.]
first-degree murder. (1895) Murder that is willful,
deliberate, or premeditated, or that is committed
during the course ofanother dangerous felony . AII
murder perpetrated by poisoning or by lying in wait
is considered first-degree murder. All types of murder
not involving willful, deliberate, and premeditated
killing are usu. considered second-degree murder.
Also termed murder ofthe first degree; murder one.
[Cases: Homicide C=:>539.]
mass murder. (1917) A murderous act or series of acts
by which a criminal kills many victims at or near the
same time, usu. as part of one act or plan. Cf. serial
murder.
murder by torture. (1901) A murder preceded by the
intentional infliction of pain and suffering on the
victim.
"In some jurisdictions, a murder by torture may constitute
murder in the first degree. It occurs when a defendant
intentionally inflicts pain and suffering upon his victim
for the purpose of revenge, extortion, or persuasion." 2
Charles E. Torcia, Wharton's Criminal Law 144, at 281
(15th ed. 1994).
murder ofthe first degree. See first-degree murder.
murder of the second degree. See second-degree
murder.
murder ofthe third degree. See third-degree murder.
murder one. See first-degree murder.
murder three. See third-degree murder.
murder two. See second-degree murder.
second-degree murder. (1909) Murder that is not aggra
vated by any of the circumstances of first-degree
murder. -Also termed murder ofthe second degree;
murder twa. [Cases: Homicide C=:>544.]
serial murder. (1977) A murder in which a criminal
kills one of many victims over time, often as part of
a pattern in which the criminal targets victims who
have some similar characteristics. Cf. mass murder.
third-degree murder. (1933) A wrong that did not con
stitute murder at common law . Only a few states
have added to their murder statutes a third degree of
murder. The other states claSSify all murders in two
degrees. Manslaughter is not a degree of the crime
of murder, but instead is a distinct offense. -Also
termed murder of the third degree; murder three.
[Cases: Homicide C=:>548.)
unintentional murder. 1. A killing for which malice
is implied because the person acted with intent to
cause serious physical injury or knew that the conduct
was substantially certain to cause death or serious
1115 mutual-agreement program
physical injury. _ In some jurisdictions, this term is
applied generally to several grades ofkillings without
express intent. 2. See depraved-heart murder. 3. See
felony murder. 4. See voluntary manslaughter under
MANSLAUGHTER.
willful murder. (16c) The unlawful and intentional
killing of another without excuse or mitigating cir
cumstances.
murder clause. A contract provision that imposes
onerous -often unreasonable obligations on one
party. -Murder clauses are usu. found in construc
tion contracts.
murdrum (m~r-dr~m). [Law Latin] Hist. 1. The secret
killing ofsomeone. 2. A fine against the tithing where
the secret and unsolved homicide took place.
"The readiness with which the Norman administrators
seized on this Anglo-Saxon system was probably due to
its effectiveness in collecting the murdrum, the murder
fine. In ordinary cases of homicide, the whole district ~
except the kin of the suspect ~would be zealous to bring
the malefactor to Justice. But we can readily see that, ifthe
person killed was a Norman, every effort would be made
to shield the murderer. The Norman rulers had recourse
to the device ... of imposing a group responsibility. The
tithing within which the murdered Norman was found was
compelled to pay a fine or to discover and surrender the
homicide. The word murdrum is a word of uncertain ety
mology, and has given us our term for willful homicide."
Max Radin, Handbook ofAnglo-American Legal Historv
175-76 (1936).
3. Murder; speci., murder with malice aforethought.
See MALICE AFORETHOUGHT.
murorum operatio (myuur-or-<lm op-a-ray-shee-oh).
[Latin] Hist. Repair work to the fortifications of build
ings, cities, or castles, performed by their inhabitants.
muster, vb. (14c) Military law. 1. To assemble together
(troops) for inspection or service. 2. To assemble
together (potential troops) for enlistment. [Cases:
Armed Services (;:::> 18.J
muster roll. Maritime law. A shipmaster's account listing
the name, age, national character, and quality ofevery
employee on the ship. _ In wartime, it is used in ascer
taining a ship's neutrality. [Cases: Shipping C=:>67.J
must-pass bill. See BILL (3).
mutation, n. A Significant and basic alteration; esp. in
property law, the alteration of a thing's status, such
as from separate property to community property.
mutate, vb. -mutational, adj.
mutation oflibel. Maritime law. An amendment to a
complaint. See UBEL (3).
mutatio nominis (myoo-tay-shee-oh nom-<:>-nis). [Latin]
Roman law. Change ofname. -It was allowed provided
that no prejudice was thereby caused to others. The
related phrase mutato nomine (myoo-tay-toh nom-a
nee) means "the name having been changed."
mutatis mutandis (myoo-tay-tis myoo-tan-dis). [Latin]
(16c) All necessary changes having been made; with the
necessary changes <what was said regarding the first contract applies mutatis mutandis to all later ones>.
[Cases: Contracts (;:::'159.]
mute, n. (17c) 1. A person who cannot speak. [Cases: Wit
nesses C=:>229.] 2. A person (esp. a prisoner) who stands
silent when required to answer or plead. -Formerly, if
a prisoner stood mute, a jury was empaneled to deter
mine whether the prisoner was intentionally mute or
mute by an act ofGod. By the Criminal Law Act of 1827
(7 & 8 Geo. 4, ch. 28), ifa prisoner was mute by malice,
the officer automatically entered a plea of not guilty
and the trial proceeded. Ifadjudicated to be insane, the
prisoner was kept in custody until the Crown deter
mined what should be done.-Also termed (in sense
2) standing mute.
mutilation, n. (16c) 1. The act or an instance of render
ing a document legally ineffective by subtracting or
altering -but not completely destroying an essen
tial part through cutting, tearing, burning, or erasing.
[Cases: Alteration ofInstruments (;:::2.] 2. Criminal
law. lhe act ofcutting off or permanently damaging a
body part, esp. an essential one. [Cases: Mayhem (;:::> 1.]
See MAYHEM. -mutilate, vb. -mutilator, n.
mutiny (myoo-t<l-nee), n. (16c) 1. An insubordination
or insurrection of armed forces, esp. sailors, against
the authority of their commanders; a forcible revolt by
members of the military against constituted author
ity, usu. their commanding officers. [Cases: Armed
Services (;:::>37; Military Justice (;:::>680,790.]
"Both mutiny and failure to prevent, suppress, or report a
mutiny are capital offenses .... The elements of mutiny
are (1) creation of any violence or disturbance or acting
in concert with others to refuse to obey orders (2) with
the intent to usurp or override lawful military authority.
One fails to prevent, suppress, or report mutiny when he
does not take all reasonable means to overcome or report
mutiny. Concert of action is not required for mutiny when
the accused creates violence or disturbance." Charles A.
Shanor & L. Lynn Hogue, Military Law in a Nutshell 197-98
(2d ed. 1996).
2. Loosely, any uprising against authority. -Also
termed (in both senses) inciting revolt. mutinous,
adj.
Mutiny Act. Hist. An English statute enacted annually
from 1689 to 1879 to prOVide for a standing army and to
punish mutiny, desertion, and other military offenses.
_ Itwas merged into the Army Discipline and Regula
tion Act of 1879 (ch. 33).
mutual, adj. (16c) 1. Generally, directed by each toward
the other or others; reciprocal. [Cases: Contracts (;:::
55.] 2. (Of a condition, credit covenant, promise, etc.)
reciprocally given, received, or exchanged. 3. (Of a
right, etc.) belonging to two parties; common. [Cases:
Contracts (;:::, 10.] mutuality, n.
mutual account. See ACCOUNT.
mutual affray. See MUTUAL COMBAT.
mutual-agreement program. (1978) A prisoner-rehabil
itation plan in which the prisoner agrees to take part in
certain self-improvement activities to receive a definite
parole date.
mutual assent. See ASSENT.
mutual association. A mutually owned, cooperative
savings and loan association, with the deposits being
shares of the association . A mutual association is not
allowed to issue stock and is usu. regulated by the Office
of Thrift Supervision, an agency of the U.S. Treasury
Department. -See SAVINGS-AND-LOAN ASSOCIATION.
[Cases: Building and Loan Associations C=::c 1.]
mutual-benefit association. A fraternal or social orga
nization that provides benefits for its members, usu.
on an assessment basis. [Cases: Beneficial Associations
C~ 1; Insurance C=::c 1237.]
"In the absence of ... statutory definition, the question of
the extent to which mutual benefit, fraternal beneficiary,
and like associations or societies, are within the meaning
of the insurance laws must depend upon the terms of the
different statutes, and the various circumstances of each
particular case .... Broadly speaking, when a company,
society, or association, either voluntary or incorporated,
and whether known as a relief, benevolent, or benefit
society, or by some similar name, contracts for a consid
eration to pay a sum of money upon the happening of a
certain contingency, and the prevalent purpose and nature
of the organization is that of insurance, it will be regarded
as an insurance company and its contracts as insurance
contracts ...." 2A George j. Couch, Couch on Insurance
20:2, at 11 (rev. 2d ed. 1984).
mutual-benefit insurance. Benefits provided by a
mutual-benefit association upon the occurrence of a
loss. [Cases: Insurance C=::c 1001, 1237.]
mutual combat. (17c) A consensual fight on equal
terms -arising from a moment of passion but not
in self-defense -between two persons armed with
deadly weapons . A murder charge may be reduced
to voluntary manslaughter if death occurred by mutual
combat. -Also termed mutual affray. Cf. DUEL. [Cases:
Criminal Law C=::c45.15; Homicide C=::c537.]
mutual company. See COMPANY.
mutual contract. See bilateral contract under
CONTRACT.
mutual debts. See DEBT.
mutual demands. (l7c) Countering demands between
two parties at the same time <a claim and counterclaim
in a lawsuit are mutual demands>. [Cases: Set-off and
Counterclaim C=::c41.]
mutual fund. (1934) 1. An investment company that
invests its shareholders' money in a usu. diversified
selection of securities. -Often shortened to fund. 2.
Loosely, a share in such a company.
balanced fund. A mutual fund that maintains a
balanced investment in stocks and bonds, investing
a certain percentage in senior securities.
bond fund. A mutual fund that invests primarily in
specialized corporate bonds or municipal bonds.
closed-end fund. A mutual fund having a fixed
number of shares that are traded on a major securi
ties exchange or an over-the-counter market.
common-stock |
number of shares that are traded on a major securi
ties exchange or an over-the-counter market.
common-stock fund. A mutual fund that invests only
in common stock. dualfund. A closed-end mutual fund that invests in
two classes ofstock -stock that pays dividends and
stock that increases in investment value without divi
dends . A dual fund combines characteristics ofan
income fund and a growth fund. -Also termed dual
purpose fund; leverage fund; split fund.
fully managed fund. A mutual fund whose policy
allows reasonable discretion in trading securities in
combination or quantity.
global fund. A mutual fund that invests in stocks and
bonds throughout the world, including the U.S.
Also termed world fund. Cf. single-country fund;
international fund.
growth fund. A mutual fund that typically invests
in well-established companies whose earnings are
expected to increase . Growth funds usu. pay small
dividends but offer the potential for large share-price
increases.
hedge fund. See HEDGE FUND.
income fund. A mutual fund that typically invests in
securities that consistently produce a steady income,
such as bonds or dividend-paying stocks.
index fund. A mutual fund that invests in the stock of
companies constituting a specific market index, such
as Standard & Poor's 500 stocks, and thereby tracks
the stock average.
international fund. A mutual fund that invests in
stocks and bonds of companies outside the U.S.,
but not those within. Cf. global fund; single-country
fund.
leverage fund. See dual fund.
load fund. A mutual fund that charges a commission,
usu. ranging from 4 to 9%, either when shares are pur
chased (afront-end load) or when they are redeemed
(a back-end load).
money-market fund. A mutual fund that invests
in low-risk government securities and short-term
notes.
no-load fund. A mutual fund that does not charge
any sales commission (although it may charge fees
to cover operating costs).
open-end fund. A mutual fund that continually offers
new shares and buys back existing shares on demand.
An open-end fund will continue to grow as more
shareholders invest because it does not have a fixed
number of shares outstanding.
performance fund. A mutual fund characterized by
an aggressive purchase of stocks expected to show
near-term growth.
regional fund. A mutual fund that concentrates its
investments in a specific geographic area or a par
ticular economic area.
single-country fund. A mutual fund that invests in an
individual nation outside the U.S. Cf. global fund;
international fund.
split fund. See dual fund.
1117
utilityfund. A mutual fund that invests only in public
utility securities.
valuefund. A mutual fund that invests in stocks that
its manager believes to be priced below their true
market value.
vulturefund. An investment company that purchases
bankrupt or insolvent companies to reorganize them
in hopes ofreselling them at a profit.
worldfund. See global fund.
mutual-fund wrap account. See ACCOUNT.
mutual insurance. See INSURANCE.
mutual insurance company. See INSURANCE COMPANY.
mutuality. (16c) The state of sharing or exchanging
something; a reciprocation; an interchange <mutual
ity of obligation>. [Cases: Contracts C:=> 10.]
mutuality doctrine. (1926) The collateral-estoppel
reqUirement that, to bar a party from relitigating an
issue determined against that party in an earlier action,
both parties must have been in privity with one another
in the earlier proceeding. Also termed mutuality of
parties. [Cases: Judgment 678.]
mutuality ofassent. See MEETING OF THE MINDS.
mutuality ofbenefits. See RECIPROCITY (2).
mutuality of contract. See MUTUALITY OF OBLIGA
TION.
mutuality of debts. Bankruptcy. For purposes of setoff,
the condition in which debts are owed between parties
acting in the same capacity, even though the debts are
not of the same character and did not arise out ofthe
same transaction. [Cases: Bankruptcy C::)2674.]
mutuality of estoppel. (1852) 'The collateral-estoppel
principle that a judgment is not concluSively in favor
of someone unless the opposite decision would also be
conclusively against that person. [Cases: Judgment
625,666.]
mutuality ofobligation. (l838) The agreement ofboth
parties to a contract to be bound in some way. -Also
termed mutuality ofcontract. See mutual assent under
ASSENT. [Cases: Contracts G~10.]
"[The] so-called doctrine of 'mutuality of obligation' in
bilateral contracts ... unfortunately has been the cause of
no little confusion. This confusion is evident from the fact
that, while it is commonly admitted there is such a doctrine,
there is a lack of unanimity, both in the statement of it
and in regard to its application. The most common mode
of statement is: 'In a bilateral agreement both promises
must be binding or neither is binding.' This statement is
obviously ambiguous, since it does not indicate in what
sense the promises must be binding. The fact is that it
has been variously interpreted and applied by the courts
with results that have sometimes been inconsistent with
other well settled principles of the law of consideration.
Usually it has been held to mean that a promise that is
not legally obligatory cannot be consideration in spite of
the fact that it may satisfy all the usual requirements of
consideration. However, at times it has in effect been held
to involve the requirement that the undertaking of the
promise relied upon as a consideration must be reason
ably commensurate with, or equivalent to, the undertaking
of the promise which it supports, before it can constitute mutuum
consideration - a kind of doctrine of mutuality of under
taking." John Edward Murray Jr., Murrayon Contracts 90,
at 190-91 (2d ed. 1974).
"The doctrine of mutuality of obligation is commonly
expressed in the phrase that in a bilateral contract 'both
parties must be bound or neither is bound.' But this phrase
is over-generalization because the doctrine is not one of
mutuality of obligation but rather one of mutuality of
consideration. Phrasing the rule in terms of mutuality of
obligation rather than in terms of consideration has led
to so-called exceptions and judicial circumventions ....
It has been suggested that the term 'mutuality of obliga
tion' should be abandoned and we must agree in the light
of the confusion that this term has engendered." John D.
Calamari &Joseph M. Perillo. The Law ofContracts 4-12,
at 226 (3d ed. 1987).
mutuality of parties. See MUTUALITY DOCTRINE.
mutuality ofremedy. (l8l9) The availability of a remedy,
esp. equitable relief, to both parties to a transaction,
sometimes required before either party can be granted
specific performance. See SPECIFIC PERFORMAKCE.
[Cases: Specific Performance
mutual mistake. See MISTAKE.
mutual promises. See PROMISE.
mutual release. See RELEASE.
mutual rescission. See RESCISSION (2).
mutual savings bank. See BANK.
mutual testament. See mutual will under WILL.
mutual will. See WILL
mutuant (myoo-choo-dnt). The provider ofproperty in
a mutuum. See MUTUUM. Cf. MUTUARY.
mutua petitio (myoo-choo-<l p<l-tish-ee-oh), [Latin]
Scots law. A counterclaim. See COUNTERCLAIM. PI.
mutuae petitiones.
mutuari (myoo-choo-air-I), vb. [Latin] To borrow.
mutuary (myoo-choo-er-ee). (1839) The recipient of
property in a mutuum. See MUTUUM. Cf. MUTUANT.
[Cases: Bailment C:=>2, 7.]
mutuatus (myoo-choo-ay-t<ls), n. [Latin] A borrowing;
a loan ofmoney.
mutui datio (myoo-choO-I day-shee-oh). [Latin] Roman
law. lbe lending of objects that could be weighed,
measured, or counted (such as bullion, corn, wine,
oil, and coined money), on the understanding that the
borrower would repay by restoring an equal amount of
the object borrowed. See MUTUUM (2).
mutus etsurdus (myoo-tds et s<lr-d<ls). [Latin] Hist. Deaf
and dumb.
mutuum (myoo-choo-am), n. (I5c) 1. A transac
tion (sometimes referred to as a bailment) in which
goods are delivered but, instead of being returned,
are replaced by other goods of the same kind. At
common law such a transaction is regarded as a sale
or exchange, not as a bailment, because the particular
goods are not returned. [Cases: Bailment ~'2, 7.] 2.
Roman law. A real contract in which money or fungible
goods were delivered from the lender to the borrower,
who was strictly liable to return an equivalent amount.
1118 mysterious disappearance
Because the contract was gratuitous, any interest had
to be demanded by stipulation. This was one ofthe real
contracts, along with the loan for use (commodatum
(kom-d-day-tdm)) and deposit and pledge (pignoratio
(pig-nd-ray-shee-oh)). See MUTUI DATIO.
mysterious disappearance. A loss of property under
unknown or baffling circumstances that are difficult to
understand or explain. The term is used in insurance
policies covering theft. [Cases: Insurance C=-2152.]
"Under a policy insuring against loss of property by
'mysterious disappearance' recovery is generally allowed where the article disappears from the place the insured
left it, while recovery is ordinarily disallowed where the
insured has no recollection of when he last had possession
of the article and cannot say when or from what place it
disappeared. Thus the addition of the words 'mysterious
disappearance' to a theft policy does not transform it to
an 'all loss' policy covering lost or mislaid articles, but it
remains a theft policy." 43 Am. Jur. 2d Insurance 501, at
575-76 (1982).
mystic testament. See mystic will under WILL.
mystic will. See WILL.
N
n.a. abbr. (1947) 1. (cap.) National Association. See !
national bank under BANK. 2. Not applicable. 3. Not
available. 4. Not allowed.
NAA. abbr. NEUTRON-ACTIVATION ANALYSIS.
NAFTA (naf-t;)). abbr. NORTH AMERICAN !'REE TRADE
AGREEMENT.
naked, adj. (14c) (Of a legal act or instrument) lacking
confirmation or validation <naked ownership of
property>.
naked assignment. See assignment-in-gross under
ASSIGNMENT (2).
naked authority. See AUTHORITY (1).
naked bailment. See gratuitous bailment under BAIL
MENT.
naked confession. See CONFESSION.
naked contract. See NUDUM PACTUM.
naked debenture. See DEBENTURE (3).
naked deposit.!. See gratuitous bailment under BAIL
MENT. 2. See DEPOSIT (5).
naked expectancy. See naked possibility under POSSI-
BILITy.
naked land trust. See land trust under TRUST.
naked license. See LICE::-.rSE.
naked licensee. See bare licensee under LICENSEE.
naked option. See OPTION.
naked owner. See OWNER.
naked ownership. See imperfect ownership under OWN
ERSHIP.
naked possession. See POSSESSION.
naked possibility. See POSSIBILITY.
naked power. See POWER (3).
naked promise. See gratuitous promise under PROMISE.
naked trust. See passive trust under TRUST.
nam (nam), n. [Old English naamJ Hist. Ihe act of dis
training property.
nam (nam or nahm), prep. [Latin) For.
"Nam .... This particle is frequently used as introductory !
to the quotation of a maxim, and sometimes erroneously
treated as a part of the maxim quoted." 2 Alexander M.
Burrill, A Law Dictionary and Glossary 219 (2d ed. 1867).
namare (n<J-mair-ee), vb. [Law Latin] Rist. To distrain
property.
namation (n<J-may-sh;m), n. [fr. Old English naml Hist.
1. The act of distraining property. 2. Scots law. The I
impounding of property. -Also termed namatio. name, n. (bef. 12c) A word or phrase identifying or desig
nating a person or thing and distinguishing that person
or thing from others.
alias. See ALIAS.
assumed name. See ASSUMED NAME.
brand name. See TRADENAME.
Christian name. See personal name.
corporate name. 'Ine registered name under which a
corporation conducts legal affairs such as suing, being
sued, and paying taxes; the name that a corporation
files with a state authority (usu. the secretary ofstate)
as the name under which the corporation will conduct
its affairs . A corporate name usu. includes, and in
many states is required to include, the word "corpo
ration, "incorporated," or "company," or an abbre
viation of one of those words. Cf. ASSUMED NAME.
[Cases: Corporations (;::::>43-50.J
distinctive name. A name, esp. a tradename, that
clearly distinguishes one thing from another. -To
maintain an action for tradename infringement, the
plaintiff must prove, among other things, that it owns
a distinctive name. [Trademarks 1029.J
fictitious name. 1. See ASSUMED NAME. 2 |
[Trademarks 1029.J
fictitious name. 1. See ASSUMED NAME. 2. See ALIAS.
3. See JOHN DOE.
first name. See personal name.
full name. An individual's personal name, second
or middle names or initials (if any), and surname
arranged in a customary order . In Western cultures,
the traditional order is usu. personal name, middle
names or initials, and surname. In many other
cultures, the order is surname first, followed by one
or more personal names. [Cases: Names (;:;, 1.J
generic name. See GENERIC NAME.
geographic name. A name that deSignates a geographic
location or area. Also termed geographical name.
given name. See PERSONAL NAME.
legal name. A person's full name as recognized in law.
A legal name is usu. acquired at birth or through
a court order. There are no rules governing a legal
name's length or constitution; it may be a single name
(e.g., Prince) or include words not generally used in
human names (e.g., Moon Unit). [Cases: Names
1.]
maiden name. A woman's childhood surname
(which mayor may not remain her surname tor
life). Normally the term is used only in reference
to a woman who has married and changed her last
name.
nickname. See NICKNAME.
personal name. An individual's name or names given
at birth, as distinguished from a family name. -Also
termed given name; (in the Western tradition) first
name; (in the Christian tradition) Christian name.
Cf. surname. [Cases: Names ~2.]
proprietary name. Trademarks. A nondescriptive name
that may be owned and registered as a trademark.
[Cases: Trademarks ~1040.]
street name. See STREET NAME.
surname. The family name automatically bestowed at
birth, acquired by marriage, or adopted by choice .
Although in many cultures a person's surname is tra
ditionally the father's surname, a person may take the
mother's surname or a combination of the parents'
surnames. [Cases: Names ~2,9.]
tradename. See TRADENAME.
name-and-arms clause. Hist. A clause (usu. in a will or
settlement transferring property) providing that the
property's recipient must assume and continue using
the testator's or settlor's surname and coat-of-arms, or
else the property will pass to another person. [Cases:
Wills ~642.]
named additional insured. See additional insured under
INSURED.
named insured. See INSURED.
named-insured exclusion. See EXCLUSION (3).
named partner. See name partner under PARTNER.
named-perils policy. See multiperil policy under INSUR
ANCE POLICY.
named plaintiff. See class representative under REPRE
SENTATIVE.
namely, adv. By name or particular mention; that is to
say <the plaintiff asserted two claims, namely wrongful
termination and slander> . The term indicates what is
to be included by name. By contrast, including implies
a partial list and indicates that something is not listed.
See INCLUDE.
name partner. See PARTNER.
namium (nay-mee-;lm), n. [Law Latin] Hist. The act of
distraining property.
namium vetitum (nay-mee-;lm vet-;l-t;lm), n. [Law Latin
"taking prohibited"] Hist. A refused or prohibited
taking or redelivery. This term is most often asso
ciated with the circumstance in which a lord's bailiff
distrained animals or goods, and was ordered by the
lord to take them to an unknown place or otherwise
not to redeliver them when the sheriff came to replevy
them. -Also termed vetitum namium.
nanny tax. See TAX.
nantissement (non-tis-mahn), n. [French] French law. A
security or pledge . Ifit involves movable property, it
is called "gage." If it involves immovable property such
as real estate, it is called "antichrese."
NAPABA. abbr. NATIONAL ASIAN PACIFIC AMERICAN
BAR ASSOCIATION. Napoleonic Code. 1. (usu. pi.) The codification of French
law commissioned by Napoleon in the 19th century,
including the Code civil (1804), the Code de procedure
civil (1806), the Code de commerce (1807), the Code
penal (1810), and the Code d'instruction crimenelle
(1811). -Sometimes shortened to Napoleon. -Also
termed Code Napoleon (abbr. CN). 2. Loosely, CIVIL
CODE (2).
NAR. abbr. NATIONAL ASSOCIATION OF REALTORS.
NARA. abbr. NATIONAL ARCHIVES AND RECORDS ADMI
NISTRATION.
narcoanalysis (nahr-koh-;l-nal-;l-sis). (1936) The process
of injecting a "truth-serum" drug into a patient to
induce semiconsciousness, and then interrogating the
patient. This process has been utilized to enhance the
memory ofa witness. [Cases: Witnesses ~257.1O.]
narcotic, n. (14c) 1. An addictive drug, esp. an opiate,
that dulls the senses and induces sleep. 2. (usu. pi.) A
drug that is controlled or prohibited by law.[Cases:
Controlled Substances ~9.] -narcotic, adj.
narr. abbr. NARRATIO.
narr-and-cognovit law (nahr-and-kahg-noh-vit). [Latin
narratio "declaration" and cognovit "the person has
conceded"] Hist. A law providing that a plaintiff will
be granted judgment on a note through an attorney's
confession that the amount shown on the note, together
with interest and costs, constitutes a legal and just
claim. Cf. cognovit judgment under JUDGMENT; CON
FESSION OF JUDGMENT. [Cases: Judgment ~29,54.]
narratio (n;l-ray-shee-oh), n. [Latin "narrative"] Hist. A
declaration, complaint, or petition in which the plain
tiff sets out the facts of a case; an oral narrative by the
plaintiffof the facts and legal arguments on which the
claim is based. The term has also been called the
"conte" or "tale." -Abbr. narr.
"[Tlhe making of the count, in Latin the narratio, was the
very centre of the legal process. We do not know how it
came about that the litigant was allowed to speak through
the mouth of another, though it has been suggested that
it was not to prevent mistakes being made but to prevent
them being fatal. Certainly the litigant could disavow what
was said on his behalf; and perhaps it was only 'said' by
him when he formally adopted it. If this is right, our modern
barrister began as one who could harmlessly blunder."
S.F.C. Milsom, Historical Foundations of the Common Law
28 (1969).
narrative recital. See RECITAL.
narrator (na-ray-tor or na-ray-t;lr), n. [Law Latin] Hist.
A pleader or counter; a person who prepares pleadings
(i.e., narrs) . For example, a serjeant-at-law was also
known as serviens narrator. PI. narratores (na-r;l-tor
eez).
"The Latin narrator and its French equivalent contour
became technical terms. If an English term was in use, it
was perhaps forspeaker." 1 Frederick Pollock & Frederic
W. Maitland, The History ofEnglish Law Before the Time of
Edward I 215 n.l (2d ed. 1898).
narrow certiorari. See CERTIORARI.
narrow-channel rule. The navigational requirement that
a vessel traveling down a slim fairway must keep as
1121
near to the fairway wall on the vessel's starboard side
as is safe and pract'icable. 33 USCA 2009(a)(i). [Cases:
Collision C='90.]
narrowly tailored, adj. (1972) (Of a content-neutral
restriction on the time, place, or manner ofspeech in
a deSignated public forum) being only as broad as is
reasonably necessary to promote a substantial govern
mental interest that would be achieved less effectively
without the restriction; no broader than absolutely
necessary. See deSignated public forum under PUBLIC
FORUM. [Cases: Constitutional Law 1505, 1747.)
narrow sea. (often pi,) A sea running between two coasts
that are close to each another . The English Channel,
for example, is a narrow sea.
NASA. abbr. NATIONAL AERONAUTICS AND SPACE ADMI
NISTRATION.
nasciturus (nas-a-t[y)oor-as or -t[y]ar-as), n. [fr. Latin
nascar "to be born"] Roman law. An unborn child.
NASD. abbr. NATIONAL ASSOCIATION OF SECURITIES
DEALERS.
NASDAQ (naz-dak). abbr. NATIONAL ASSOCIATION OF
SECURITIES DEALERS AUTOMATED QUOTATIONS.
NASS. abbr. NATIONAL AGRICULTURAL STATISTICS
SERVICE.
natale (n;Hay-lee), n. [Latin "of or belonging to birth"]
Rist. The status a person acquires by birth. For
example, if one or both parents of a child were serfs,
the child was generally regarded as a serf, and a child
born free rarely became a serf. See NATIVUS.
nati et nascituri (nay-u et nas-a-t[yJoor-I or t[y]ar-I), n.
pl. [Latin "born and to be born"] Hist. A person's heirs,
near and remote.
natio (nay-shee-oh), n. [Latin] Hist. 1. A nation, 2. A
group ofstudents. 3. A native place.
nation, n, (14c) 1. A large group of people haVing a
common origin, language, and tradition and usu.
constituting a political entity. When a nation is
coincident with a state, the term nation-state is often
used. Also termed nationality.
'The nearest we can get to a definition is to say that a
nation is a group of people bound together by common
history, common sentiment and traditions, and, usually
(though not always. as, for example, Belgium or Switzer
land) by common heritage. A state, on the other hand, is a
society of men united under one government. These two
forms of society are not necessarily coincident. A single
nation may be divided into several states, and conversely
a single state may comprise several nations or parts of
nations." John Salmond, Jurisprudence 136 (Glanville L
Williams ed., 10th ed. 1947).
2. A community of people inhabiting a defined terri
tory and organized under an independent government;
a sovereign political state. Cf. STATE.
national, adj. (l6c) 1. Ofor relating to a nation <national
anthem>. 2. Nationwide in scope <national emer
gency>. National Association of Securities Dealers
national, n. 1. A member ofa nation. 2. A person owing
permanent allegiance to and under the protection ofa
state, 8 l;SCA llOl(a)(21).
national ofthe United States. A citizen of the United
States or a noncitizen who owes permanent allegiance
to the United States. 8 USC A 1l01(a)(22). Also
termed u.s. national; U.S. citizen, [Cases: Aliens,
Immigration, and Citizenship C=654.]
National Aeronautics and Space Act. A 1958 federal
statute that created the National Aeronautics and Space
Administration (NASA). 42 USCA 2451-2484.
National Aeronautics and Space Administration. The
independent federal agency that conducts research into
space flight and that builds and flies space vehicles .
NASA was created by the National Aeronautics and
Space Act of 1958,42 USCA 2451-2484. -Abbr.
NASA,
National Agricultural Statistics Service. An agency
in the U.S. Department of Agriculture responsible
for compiling statistical information and estimating
agricultural production, supply, price, chemical use,
and other related statistics. _ Most of the data come
from farmers, ranchers, and agribusinesses. -Abbr.
NASS.
national airspace. See AIRSPACE.
! National Archives and Records Administration. An
independent federal agency that sets procedures for
preserving governmental records that are important
! for legal and historical reasons; helps federal agencies
manage their records; provides record-storage access;
and manages the Presidential Libraries system, 1he
. agency, run by the Archivist of the United States, retains
! only a small percentage ofthe federal records produced
each year. It publishes the United States Statutes at
Large, the Federal Register, the Code ofFederal Regu
lations, the weekly Compilation ofPresidential Docu
ments, the annual Public Papers ofthe President, and the
United States Government Manual. It is a successor to
the National Archives Establishment, created in 1934,
that was made a unit of the General Services Admin
istration in 1949. It became an independent agency in
1984. -Abbr. NARA. See FEDERAL REGISTER. [Cases:
Records C=i 13.]
National Asian Pacific American Bar Association. A
professional association of Asian Pacific American
attorneys, judges, law professors, and law students,
. emphasizing civil rights and immigration issues.
! Abbr. NAPABA.
national association. See national bank under BANK.
National Association of Realtors. An association of
real-estate brokers and agents promoting education,
I professional standards, and modernization in areas of
i real estate such as brokerage, appraisal, and property
management. -Abbr. NAR. [Cases: Brokers C='3.]
National Association ofSecurities Dealers. A group of
bro |
NAR. [Cases: Brokers C='3.]
National Association ofSecurities Dealers. A group of
brokers and dealers empowered by the SEC to regulate
the over-the-counter securities market. Abbr. NASD.
1122 National Association of Securities Dealers Automated Quotations
[Cases: Exchanges 11; Securities Regulation
40.15.]
National Association ofSecurities Dealers Automated
Quotations. A computerized system for recording
transactions and displaying price quotations for a
group of actively traded securities on the over-the
counter market. Abbr. NASDAQ.
National Association ofWomen Lawyers. An organiza
tion, formed in 1899, devoted to the interests offemale
lawyers and their families. Abbr. NAWL.
national bank. See BANK.
National Bar Association. An organization of primarily
African-American lawyers, founded in 1925 to promote
education, professionalism, and the protection ofcivil
rights. -Abbr. NBA.
National Capital Parks Commission. See NATIONAL
CAPITAL PLANNING COMMISSION.
National Capital Planning Commission. A 12-member
federal commission that plans the development of
federal lands and facilities in the National Capital
region, an area that includes the District of Columbia
and six nearby counties -two in Maryland and four in
Virginia. The Commission was originally established
as the National Capital Park Commission, a park-plan
ning agency, in 1924. Abbr. NCPC.
National Capital Region. The District ofColumbia and
six nearby counties: Montgomery and Prince George's
in Maryland. and Fairfax, Loudoun, Prince William,
and Arlington in Virginia. -Abbr. NCR.
National Cemetery Administration. A unit in the U.S.
Department of Veterans Affairs responsible for oper
ating national cemeteries, prOViding headstones for
unmarked graves of veterans worldwide, and making
grants to states for establishing and caring for veterans'
cemeteries. -Abbr. NCA.
National Conference ofBlack Lawyers. An organization
of African American attorneys formed in 1969, active
esp. in civil rights. -Abbr. NCBL.
National Conference of Commissioners on Uniform
State Laws. An organization that drafts and proposes
statutes for adoption by individual states, with the goal
ofmaking the laws on various subjects uniform among
the states . Founded in 1892 and composed of repre
sentatives from all 50 states, the Conference has drafted
more than 200 uniform laws, including the Uniform
Commercial Code. -Abbr. NCCUSL. -Also termed
Uniform Law Commissioners. See UNIFORM ACT; MODEL
ACT; UNIFORM LAW.
National Council ofJuveniIe and Family Court Judges.
An organization of judges and hearing officers who
exercise jurisdiction over abuse, neglect, divorce,
custody and visitation, support, domestic-violence, and
other family-law cases . Founded in 1937, the Council
has an educational and support facility located near
Reno, Nevada. Itprovides training, technical support,
and professional assistance in improving courtroom
operations. National Credit Union Administration. An indepen
dent federal agency that charters, insures, supervises,
and examines federal credit unions; administers the
National Credit Union Share Insurance Fund and
the Community Development RevolVing Loan Fund;
and manages the Central liqUidity Facility, a separate
mixed-ownership government corporation that
supplies emergency loans to member credit unions .
The agency was established in 1970 and reorganized
in 1978. -Abbr. NCUA. [Cases: Building and Loan
Associations
national currency. See CURRENCY.
National Daily Quotation Service. See PINK SHEET.
national debt. (l8c) The total financial obligation of
the federal government, including such instruments
as Treasury bills, notes, and bonds, as well as foreign
debt. [Cases: United States
national defense. 1. All measures taken by a nation to
protect itself against its enemies . A nation's protec
tion of its collective ideals and values is included in the
concept of national defense. [Cases: War and National
Emergency C=>48.J 2. A nation's military establish
ment.
National Disaster Medical System. A unit ofthe Federal
Emergency Management Agency in the U.S. Depart
ment of Homeland Security responsible for training,
equipping, and deploying teams ofemergency medical
responders and for coordinating the transportation
of people affected by emergencies . The agency was
transferred from the U.S. Department of Health and
Human Services in 2003. -Abbr. NDMS.
national domicile. See DOMICILE.
National Economic Council. See OFFICE OF POLICY
DEVELOPMENT.
national emergency. A state of national crisis or a situ
ation requiring immediate and extraordinary national
action. [Cases: War and National Emergency
National Endowment for the Arts. An independent
federal agency that promotes involvement in the arts
by making grants to organizations, honOring artists
for their achievements, expanding artistic resources,
preserving cultural heritage, and funding projects that
educate children and adults in the arts. -Abbr. NEA.
See NATIONAL FOUNDATION ON THE ARTS AND THE
HUMANITIES.
National Endowment for the Humanities. An inde
pendent federal agency that supports research, educa
tion, and public programs in the humanities through
grants to individuals, groups, and institutions. Abbr.
NEH. See NATIONAL FOU:-lDATION ON THE ARTS AND
THE HUMANITIES.
National Environmental Policy Act. A 1969 federal
statute establishing U.S. environmental policy . The
statute requires federal agencies to submit an envi
ronmental-impact statement with every proposal
for a program or law that would affect the environ
ment. 42 USCA 4321-4347 Abbr. NEPA. See
1123
ENVIRONMENTAL-IMPACT STATEMENT. [Cases: Envi
ronmental Law ~)571-615.1
"One should not assume that NEPA's emphasis upon pro
cedural consideration of environmental consequences
somehow diminishes its stature. To the contrary, NEPA
is the key environmental statute to be reckoned with in
lawsuits challenging agency action on NEPA grounds. As a
result of the popularity of NEPA in court, federal agencies
have become extremely sensitive to NEPA's procedural
commands. They have not only sought to articulate the
environmental impacts of their decisions before-the-fact,
they have also either abandoned projects or mitigated
their adverse environmental consequences after perform
ing NEPA studies." Jan G. Laitos, Natural Resources Law
4.01, at 119 (2002).
National Environmental Satellite, Data, and Infor
mation Service. See NATIONAL OCEANIC AND ATMO
SPHERIC ADMINISTRATION.
National Firearms Act. A 1934 federal statute that
governs the manufacture, possession, and transfer of
certain types of firearms and other weapons . In its
original form, the act banned gangster-type weapons,
such as machine guns and sawn-off shotguns. It has
been expanded by amendments to cover most rifles
and handguns, and also" destructive devices" such
as grenades and land mines. 26 USCA 5801 et seq.
[Cases: Explosives Weapons
National Foundation on the Arts and the Humanities.
An independent federal foundation that encourages
and supports progress in the humanities and the arts
by supporting the National Endowment for the Arts,
the National Endowment for the Humanities, and the
Institute of Museum and Library Services . The agency
was created by act of Congress in 1965. See NATIONAL
ENDOWMENT FOR THE ARTS; NATIONAL ENDOWMENT
FOR THE HUMANITIES; INSTITUTE OF MUSEUM AND
LIBRARY SERVICES,
national government. The government of an entire
country, as distinguished from that ofa province, state,
subdivision, or territory of the country and as distin
gUished from an international organization. Seefederal
government (2) under GOVERNMENT.
National Guard. '{he U.S. militia, which is maintained
as a reserve for the U.S. Army and Air Force. -Its
members are volunteers, recruited and trained on a
statewide basis and equipped by the federal government.
A state may request the National Guard's assistance in
quelling disturbances, and the federal government may
order the National Guard into active service in times of
war or other national emergency. See MILITIA. [Cases:
Armed Services Militia C-:::;, 1-22.1
National Highway Traffic Safety Administration.
A unit in the U.S. Department of Transportation
responsible for regulating the safety of motor vehicles
and their equipment . The agency's work focuses on
matters such as theft prevention, speed limits, truthful
odometer readings, and fuel consumption. It was estab
lished by the Highway Safety Act of 1970. 23 USCA
101 et seq. -Abbr. NHTSA.
National Imaging and Mapping Agency. A unit in the
G.S. Department of Defense responsible for providing National Labor Relations Act
the armed forces and intelligence officers with up
to-date and accurate geospatial information, esp. in
the form of photographs, maps, and charts. -Abbr.
NIMA.
National Institute for Literacy. A federally aided insti
tute that leads national efforts to achieve universal
literacy. Abbr. NIFL.
National Institute of Corrections. A federal organiza
tion (established within the Bureau of Prisons) whose
responsibilities include helping federal, state, and local
authorities improve correctional programs, conducting
research on correctional issues such as crime preven
tion, and conducting workshops for law-enforcement
personnel, social workers, judges, and others involved
in treating and rehabilitating offenders. 18 USCA
4351-4353. See BUREAU OF PRISONS.
National Institute of Standards and Technology. See
TECHNOLOGY ADMINISTRATION.
nationality. (I7c) 1. NATION (1). 2. The relationship
between a citizen of a nation and the nation itself, cus
tomarily involving allegiance by the citizen and pro
tection by the state; membership in a nation . This
term is often used synonymously with citizenship. See
CITIZENSHIP. 3. The formal relationship between a ship
and the nation under whose flag the ship sails. See FLAG
STATE. [Cases: Shipping <:r'-=>2.J
"'Nationality' is a term which has long been used to define
the legal relationship between a state and a ship which is
authorized by the state to fly its flag .... Discussions in the
International Law Commission in 1951 reflected concern
that the use of the term 'nationality' in reference to ships
was misleading as it implied similarity to the term's use
in defining the legal relationship between a state and its
citizen. Nonetheless, the term has continued to be the
one most often employed in describing the relationship
between a ship and its flag state. It is important to realize,
however, that in spite of their common names, the legal
relationship ascribed to the nationality of ships does differ
from that arising from the nationality of natural orjuridical
persons." Louis B. 50hn & Kristen Gustafson, The Law of
the Sea in a Nutshell12 (1984).
Nationality Act. See IMMIGRATION AND NATIONALITY
ACT.
nationality theory. The jurisdictional principle that
citizens are subject to the laws of their country, no
matter where the citizens are. [Cases: International
LawC:::>7.]
nationalization, n. (1847) 1. Ibe act of bringing an
industry under governmental control or ownership.
[Cases: International Law 10.16.] 2. The act of
giving a person the status of a citizen. See NATURAL
IZATION. [Cases: Aliens, Immigration, and Citizenship
(;.":::>689-728.]
nationalize, vb. (1809) 1. To bring (an industry) under
governmental control or ownership. 2. To give (a
person) the status ofa citizen; NATURALIZE.
National Labor Relations Act. A federal statute regu
lating the relations between employers and employees
and establishing the National Labor Relations Board.
29 USCA 151-169. The statute is also known as
1124 National Labor Relations Board
the Wagner Act of 1935. It was amended by the Taft
Hartley Act of 1947 and the Landrum-Griffin Act of
1959. Abbr. NLRA. Also termed Wagner Act.
[Cases: Labor and Employment
National Labor Relations Board. An independent five
member federal board created to prevent and remedy
unfair labor practices and to safeguard employees'
rights to organize into labor unions. -The board
hears complaints of unfair labor practices and issues
orders that can be reviewed or enforced by a U.S. court
of appeals. The agency was created by the National
Labor Relations Act of 1935. 29 USCA 153. Abbr.
NLRB. -Often shortened to Labor Relations Board.
[Cases: Labor and Employment C=' 1650.1
National Lawyers Guild. An association oflawyers, law
students, and legal workers dedicated to promoting a
left-wing political and social agenda. -Founded in
1937, it now comprises some 4,000 members. Cf. FED
ERALIST SOCIETY.
National Marine Fisheries Service. -Abbr. NMFS. See
NATIO:>IAL OCEANIC AND ATMOSPHERIC ADMINISTRA
TION.
National Mediation Board. An independent federal
board that mediates labor-management disputes in
the airline and railroad industries and provides admin
istrative and financial support in adjusting grievances
in the railroad industry. -The agency was created by
the Railway Labor Act of 1934 to prevent interrup
tions in service. 45 USCA 154-163. -Abbr. NMB.
Cf. FEDERAL MEDIATION AND CONCILIATION SERVICE.
[Cases: Labor and Employment
national monument. (1879) An object or structure and
the land on which it |
[Cases: Labor and Employment
national monument. (1879) An object or structure and
the land on which it is situated, publicly proclaimed by
the u.s. President to be of historic or scientific interest.
See 16 USCA 341.
National Motor Vehicle Theft Act. See DYER ACT.
National Oceanic and Atmospheric Administration.
A unit in the u.s. Department of Commerce respon
sible for monitoring the environment in order to make
accurate and timely weather forecasts and to protect
life, property, and the environment. -It was established
in 1970 under Reorganization Plan No.4 of 1970 and
operates through several agencies: the National Weather
Service (NWS); the National Environmental Satellite,
Data, and Information Service (NESDIS); the National
Marine Fisheries Service (NMFS); the National Ocean
Service (NOS); and the Office of Oceanic and Atmo
spheric Research (OAR). It also maintains a fleet of
ships and aircraft for research. -Abbr. NOAA.
National Ocean Service. See NATIONAL OCEANIC AND
ATMOSPHERIC ADMINISTRATION.
national of the United States. See NATIONAL.
National Organ Transplant Act. A 1984 federal
law banning the sale of human organs. 42 USCA
273-274. -Abbr. NOTA. [Cases: Gifts
national origin. (1880) The country in which a person
was born, or from which the person's ancestors came. This term is used in several antidiscrimination statutes,
including Title VII of the Civil Rights Act of 1964,
which prohibits discrimination because ofan individ
ual's "race, color, religion, sex, or national origin." 42
USCA 2000e-2. [Cases: Civil Rights C='1009,1107.]
national park. (1868) A scenic, natural, historic, and
recreational area owned bv the United States and set
aside for permanent protection. -Yellowstone National
Park was declared the first national park in 1872. See 16
USCA la-L [Cases: United States C='57.]
National Park Service. A unit in the U.S. Department
of the Interior responsible for managing the nation's
national parks, monuments, scenic parkways, pre
serves, trails, river ways, seashores, lakeshores, rec
reational areas, and historic sites commemorating
movements, events, and personalities of America's past.
-The Service was established in 1916. 16 USCA 1.
[Cases: United States
National Priorities List. Environmental law. The Envi
ronmental Protection Agency's list of the most serious
uncontrolled or abandoned hazardous-waste sites
that are identified for possible long-term remediation
as Superfund sites. 40 CFR 35.6015. Abbr. NPL.
[Cases: Environmental Law C='436.]
National Quotation Bureau. A company that publishes
daily price quotations (pink sheets) of over-the-counter
securities.
National Railroad Passenger Corporation. A federally
chartered corporation created by the Rail Passenger
Service Act of 1970 to provide intercity rail passen
ger service. _ The corporation owns or leases railroad
stations and operates passenger trains over tracks that
are almost entirely owned by others. -Abbr. NRPC.
Usu. termed Amtrak. [Cases: Railroads (;:=>5.51.]
National Reporter System. A series oflawbooks, pub
lished by the West Group, containing every published
appellate decision of the federal and state courts in
the United States. -For federal courts, the system
includes the Supreme Court Reporter, Federal Reporter,
Federal Claims Reporter, Federal Supplement, Federal
Rules Decisions, Bankruptcy Reporter, Military Justice
Reporter, and Veterans Appeals Reporter. For state
courts, the system includes the Atlantic Reporter, Cal
ifornia Reporter, New York Supplement, North Eastern
Reporter, North Western Reporter, Pacific Reporter,
South Eastern Reporter, Southern Reporter, and South
Western Reporter.
National Response Center. Environmental law. A
nationwide communication center located in \Vash
ington, D.C., responSible for receiving, and relaying
to appropriate federal officials, all notices of oil dis
charges and other releases of hazardous substances.
40 CFR 310.11.
national river. See RIVER.
National Science Foundation. An independent federal
foundation that promotes progress in science and engi
neering through grants, contracts, and other agree
ments awarded to universities, colleges, academic
1125
consortia, and nonprofit and small-business institu
tions. It was created by the National Science Founda
tion Act of 1950. -Abbr. NSF.
National Security Agency. A unit in the U.S. Depart
ment ofDefense responsible for protecting U.S. infor
mation systems as well as producing foreign intelligence
information . The agency uses code makers and code
breakers. Abbr. NSA. [Cases: War and National
Emergency ~48.1.]
National Security Council. An agency in the Execu
tive Office ofthe President responsible for advising the
President on national-security matters . Itwas created
by the National Security Act of 1947. 50 USCA 402.
Abbr. NSC.
national-security letter. A document that is issued by
an FBI official, or by a senior official ofanother federal
agency, and that functions as a subpoena requiring the
recipient, usu. a business, to turn over specific business
documents. The Department of Justice provides
guidelines for the issuance ofa national-security letter,
which is not typically reviewed by a court or magistrate.
Federal law prohibits the letter's recipient from disclos
ing the existence ofthe letter, except to an attorney. -
Abbr. NSL [Cases: War and National Emergency ~
50.]
national-security privilege. See state-secrets privilege
under PRIVILEGE (3).
national-service life insurance. See LIFE INSURANCE.
National Stolen Property Act. A federal statute that
makes it a crime to transport, transmit, or transfer in
interstate or foreign commerce goods or money worth
$5,000 or more if the person knows that the money or
goods were obtained unlawfully. 18 USCA 2311 et
seq. Abbr. NSPA. [Cases: Receiving Stolen Goods
~1-4.]
national synod. See SYNOD.
National Technical Information Service. See TECHNOL
OGY ADMINISTRATION.
National Technical Institnte for the Deaf. A federally
aided institute, located in Rochester, New York, respon
sible for educating large numbers ofdeaf students on
a college campus designed primarily for students who
can hear. Established by Congress in 1965, the insti
tute is a part of the Rochester Institute for Technol
ogy. Abbr. NTID.
National Telecommunications and Information
Administration. A unit in the U.S. Department of
Commerce responsible for advising the President on
telecommunications and information policy; conduct
ing research through its Institute for Telecommunica
tions Sciences; and making grants to support advanced
infrastructures and to increase ownership by women
and minorities. Abbr. NTlA.
National Transportation Safety Board. An independent
five-member federal board that investigates air, rail,
water, highway, pipeline, and hazardous-waste acci
dents; conducts studies; and makes recommendations nativi de stipite
to government agencies, the transportation industry,
and others on safety measures and practices. The
agency was created in 1966.49 USCA 1101-1155. -
Abbr. NTSB. [Cases: Aviation ~'31.]
national treatment. Intellectual property. The policy or
practice ofa country that accords the citizens ofother
countries the same intellectual-property protection as
it gives its own citizens, with no formal treaty of reci
procity required . The principle of national treatment
underlay the first international intellectual-property
treaties in the 19th century, the Paris and Berne Con
ventions' and is also embodied in the TRIPs Agree
ment. Cf. RECIPROCITY; U:-1IVERSALITY.
"The beauty ofthe principle of national treatment is that it
allows countries the autonomy to develop and enforce their
own laws, while meeting the demands for international
protection. Effectively, national treatment is a mecha
nism of international protection without harmonization."
Lionel Bently & Brad Sherman, Intellectual Property Law
5 (2001).
national-treatment clause. A provision contained in
some treaties, usu. commercial ones, according for
eigners the same rights, in certain respects, as those
accorded to nationals. [Cases: Treaties (::>8.)
national union. See UNION.
National Weather Service. See NATIONAL OCEANIC AND
ATMOSPHERIC ADMINISTRATION.
nations, law of. See INTERNATIONAL LAW.
nation-state. See NATION (1).
natis et nascituris (nay-tis et nas-i-t[y)nur-is). [Latin]
Hist. To children born and to be born. This was a
common destination used to convey an inheritance.
native, n. (16c) 1. A person who is a citizen of a particular
place, region, or nation by virtue of having been born
there. 2. A person whose national origin derives from
having been born within a particular place. 3. Loosely,
a person born abroad whose parents are citizens of the
nation and are not permanently residing abroad. 4.
Loosely, a person or thing belonging to a group indige
nous to a particular place . The term Native American
is sometimes shortened to native. [Cases: Indians ~
lOLl
Native American law. The body of law dealing with
American Indian tribes and their relationships to
federal and state governments, private citizens, and
each other. -Also termed American Indian law;
Indian law.
native-born, adj. 1. Born within the territorial jurisdic
tion ofa country. 2. Born of parents who convey rights
of citizenship to their offspring, regardless ofthe place
ofbirth.
native title. See aboriginal title (1) under TITLE (2).
nativi conventionarii (nd-tI-vI kdn-ven-shee-d-nair
ee-l), n. pl. [Law Latin] Hist. Villeins by contract.
nativi de stipite (nd-tI-vI dee stip-d-tee), n. pl. [Law
Latin] Hist. Villeins by birth. See NATIVUS; NATALE.
nativitas 1126
nativitas (n,,-tiv-,,-tas), n. [Law Latin] Rist. The servi
tude or bondage of serfs.
nativo habendo (n,,-tI-voh h,,-ben-doh), n. DE NATIVO
HABENDO.
nativus (nd-tI-vdS), n. [Law Latin] Rist. A person who is
born a villein or serf.
"Having seen what serfdom means, we may ask how men
become serfs. The answer is that almost always the serf is
a born serf; nativus and vii/anus were commonly used as
interchangeable terms ...." 1 Frederick Pollock & Frederic
W. Maitland, The History ofEnglish Law Before the Time of
Edward 1422 (2d ed. 1898).
natural, adj. (14c) 1. In accord with the regular course
of things in the universe and without accidental or
purposeful interference <a natural death as opposed
to murder>. 2. Normal; proceeding from the regular
character ofa person or thing <it is natural for a duck
to fly south in the winter>. 3. Brought about by nature
as opposed to artificial means <a natural lake>. 4.
Inherent; not acquired or assumed <natural talent>.
5. Indigenous; native <the original or natural inhabit
ants of a country>. 6. Ofor relating to birth <natural
child as distinguished from adopted child>. [Cases:
Children Out-of-Wedlock <::= 1.] 7. Untouched by civ
ilization; wild <only a small part ofthe forest remains
in its natural state>. -naturally, adv.
natural, n. (16c) 1. A person who is native to a place.
See NATIVE; natural-born citizen under CITIZEN. 2. A
person or thing well suited for a particular endeavor.
natural-accumulation doctrine. The rule that a gov
ernmental entity or other landowner is not required
to remove naturally occurring ice or snow from public
property, such as a highway, unless the entity has, by
taking some affirmative action (such as highway con
struction), increased the travel hazard to the public.
[Cases: Automobiles (;=>262: Municipal Corporations
~"')773.1
natural affection. (16c) The love naturally existing
between close relatives, such as parent and child.
Natural affection is not consideration for a contract.
See CONSIDERATION (1); executory contract under
CONTRACT. [Cases: Contracts <::=77.]
natural allegiance. See ALLEGIANCE.
natural and probable consequence. See NATURAL CON
SEQUENCE.
natural-born citizen. See CITIZEN.
Natural Born Citizen Clause. (1988) The clause of the
U.S. Constitution barring persons not born in the
United States from the presidency. U.S. Const. art. II,
1, d. 5. [Cases: United States (;:='26.]
natural-born subject. See SUBJECT.
natural boundary. See BOUNDARY.
natural channel. See CHANNEL.
natural child. See CHILD.
natural cognation. See COGNATION. natural consequence. (16c) Something that predictably
occurs as the result of an act <plaintiff's injuries were
the natural consequence of the car wreck>. -Also
termed natural and probable consequence. [Cases:
Damages <::=21: Xegligence (;=>386.]
natural day. See DAY (2).
natural death. See DEATH.
natural-death act. (1977) A statute that allows a person to
prepare a living will instructing a physician to withhold
life-sustaining procedures ifthe person should become
terminally ill. See ADVANCE DIRECTIVE; LIVING WILl..
[Cases: Health (;:='913.]
natural domicile. See domicile of origin under
DOM |
l..
[Cases: Health (;:='913.]
natural domicile. See domicile of origin under
DOMICILE.
natural duty. See moral duty under DUTY (1).
natural equity. See EQUITY (3).
natural father. See biological father under FATHER.
natural flood channel. See CHANNEL.
natural fool. Rist. A person who is mentally challenged
from birth. See INCOMPETENCY.
natural fruit. See FRUIT.
natural gas. See DISTILLATE (1).
natural guardian. See GUARDIAN.
natural heir. See HEIR.
naturaliafeudi (nach-d-ray-lee-" fyoo-dI). [Law Latin]
Scots law. Those things that naturally belong to a feu
grant. -The phrase included the grantor's warranty
against eviction of the grantee.
natural infancy. See INFANCY.
natural interruption. See INTERRUPTION.
naturalis possessio (nach-d-ray-lis pd-zes[h]-ee-oh). See
possessio naturalis under POSSESSIO.
naturalization. 06c) The granting of citizenship to a
foreign-born person under statutory authority.
Naturalization Clause. (1849) The constitutional provi
sion stating that every person born or naturalized in
the United States is a citizen of the United States and
of the state ofresidence. U.S. Const. amend. XIV, 1.
See JUS SOLI. [Cases: Aliens, Immigration, and Citizen
ship (;:='652, 678.]
naturalization court. A court haVing jurisdiction to hear
and decide naturalization petitions. -Naturalization
courts were abolished as a result ofthe Immigration Act
of 1990. Under current U.S. law, the Attorney General
has the sole authority to naturalize citizens. But after
a hearing before an immigration officer, an applicant
may seek review ofthe denial ofan application for nat
uralization in the federal district court for the district
in which the applicant resides. If an applicant is certi
fied to be eligible for naturalization, the oath of alle
giance may be administered by the Attorney General, a
federal district court, or a state court ofrecord. See oath
ofallegiance under OATH. [Cases: Aliens, Immigration,
and Citizenship
1127
naturalize, vb. (l6c) To grant the rights, privileges, and
duties of citizenship to (one previously a noncitizen); to
make (a noncitizen) a citizen under statutory author
ity. [Cases: Aliens, Immigration, and Citizenship
689-728.] naturalization, n.
naturalized citizen. See CITIZEN.
natural justice. See JUSTICE (1).
natural law. (I5c) 1. A physical law of nature <gravi
tation is a natural law>. 2. A philosophical system of
legal and moral principles purportedly deriving from
a universalized conception of human nature or divine
justice rather than from legislative or judicial action;
moral law embodied in principles of right and wrong
<many ethical teachings are based on natural law>.
Also termed law ofnature; natural justice; lex aeterna;
eternal law; lex naturae; lex naturalae; divine law; jus
divinum;jus naturale; jus naturae; (in sense 2) norma
tive jurisprudence; jure naturae. Cf. FUNDAMENTAL
LAW; POSITIVE LAW; DIVINE LAW.
"Natural law, as it is revived today, seeks to organize the
ideal element in law, to furnish a critique of old received
ideals and give a basis for formulating new ones, and
to yield a reasoned canon of values and a technique of
applying it. I should prefer to call it philosophical juris
prudence. But one can well sympathize with those who
would salvage the good will of the old name as an asset
ofthe science of law." Roscoe Pound, The Formative Era of
American Law 29 (1938).
"It is true that when medieval writers spoke of natural law
as being discoverable by reason, they meant that the best
human reasoning could discover it, and not, of course, that
the results to which any and every individual's reasoning
led him was natural law. The foolish criticism ofJeremy
Bentham: 'a great multitude of people are continually
talking of the law of nature; and then they go on giving
you their sentiments about what is right and what is wrong;
and these sentiments, you are to understand, are so many
chapters and sections ofthe law of nature', merely showed
a contempt for a great conception which Bentham had not
taken the trouble to understand." J.L. Brierly, The Law of
Nations 20-21 (5th ed. 1955).
"[Nlatural law is often an idealization of the opposite to
that which prevails. Where inequality or privilege exists,
natural law demands its abolition." Morris R. Cohen, Reason
and Law 96 (1961).
natural liberty. See LIBERTY.
natural life. (ISc) A person's physical life span.
natural monopoly, See MONOPOLY.
natural monument. See MONUMENT.
natural mother. 1. See birth mother under MOTHER. 2.
See biological mother under MOTHER.
natural object. 1. A person likely to receive a portion
of another person's estate based on the nature and
circumstances of their relationship. -Also termed
natural object ofbounty; natural object ofone's bounty;
natural object oftestator's bounty. [Cases: Wills C=)
50.] 2. See natural boundary under BOUNDARY. 3. See
natural monument under MONUMENT.
natural obligation. See OBLIGATION.
natural person. See PERSON (1).
natural possession. See POSSESSION. nautae, caupones, stabularii
natural premium. See PREMIUM (1).
natural presumption. See PRESUMPTION.
natural resource. (1870) 1. Any material from nature
having potential economic value or providing for the
sustenance ofhfe, such as timber, minerals, oil, water,
and wildlife. 2. Environmental features that serve a
community's well-being or recreational interests, such
as parks. [Cases: Environmental Law C='13.J
Natural Resources Conservation Service. An agency in
the U.S. Department of Agriculture responSible for pro
viding information and financial assistance to farmers
, and ranchers for voluntary conservation programs .
; The Service was formerly known as the Soil Conserva
. tion Service. Abbr. NRCS.
natural right. See RIGHT.
natural servitude. See SERVITUDE (2).
natural succession. See SUCCESSION (2).
natural watercourse. See WATERCOURSE.
natural wear and tear. See WEAR AND TEAR.
natural wrong. See moral wrong under WRONG.
natural year. See YEAR.
natura negotii (na-tyoor-d ni-goh-shee-r). [LatinJ Hist.
The nature of the transaction.
nature. (l4c) 1. A fundamental quality that distinguishes
one thing from another; the essence of something. 2.
A wild condition, untouched by civilization. 3. A dis
position or personality of someone or something. 4.
Something pure or true as distinguished from some
thing artificial or contrived. 5. The basic instincts or
impulses ofsomeone or something. 6. The elements of
the universe, such as mountains, plants, planets, and
stars.
natus (nay-tas), adj. [Latin] Born; (of a child) alive.
nauclerus (naw-kleer-as), n. [Latin fro Greek naus "ship"
+ kieros "allotment"] Roman law. A shipmaster; a
skipper.
naulage (naw-Iii), n. [Old French fro Law Latin naulagium
"passage money"] The fare for passengers or goods trav
eling by ship. See NAULUM.
naulum (naw-bm), n. [Latin fro Greek] Roman law. Fare;
freights; a shipowner's fee for carrying people or goods
from one place to another.
nauta (naw-ta), n. [Latin fro Greek naus "ship"] Roman
law. A sailor.
nautae, caupones, stabularii (naw-tee, kaw-poh-neez,
stab-ya-Iair-ee-r). [Latin] Roman law. Carriers by sea,
innkeepers, stablers . The phrase was used in an edict
holding shippers, innkeepers, and stablers liable for
damages to goods entrusted to them for safekeeping
(receptum). Members of this group were also vicari
ously liable for the torts of their employees and slaves.
'The edict is in these terms: 'NAUTAE, CAUPONES, STABULARII, QUOD
CUJUSQUE SALVUM FORE RECEPERINT, NiSI RESTITUENT! IN EO$ jlJDlelVM DABO.'
This rule, from its expediency, has been, with some varia
tions, received into the law of Scotland. Persons of this
description are liable for their servants, or even for the acts
nautical 1128
of guests and passengers; and the extent of the damage
may be proved by the oath of the claimant." William Bell,
Bell's Dictionary and Digest of the Law of Scotland 737
(George Watson ed., 7th ed. 1890).
nautical, adj. (16c) Of or relating to ships or shipping,
carriage by sea, or navigation.
nautical assessor. A person skilled in maritime matters
who is summoned in an admiralty case to assist the
judge on points requiring special expertise.
nautical mile. (1834) A measure of distance for air and
sea navigation, equal to one minute of arc of a great
circle of the earth. -Different measures have been
used by different countries because the earth is not a
perfect sphere. Since 1959, however, the United States
has used an international measure for a nautical mile,
set by the Hydrographic Bureau, equal to 6,076.11549
feet, or 1,852 meters.
nauticum fenus (naw-ti-k~m fee-n~s), n. [Greek nautikon
"nautical" + Latinfenus "interest"] Roman & civil law.
A loan to finance the transport ofgoods by sea; specie,
a loan on bottomry made to a transporter ofmerchan
dise by ship. _ The loan is subject to an extremely high
rate of interest because it does not have to be repaid
unless the ship safely reaches its destination. The
nauticum fenus is both a loan and marine insurance.
The rate, originally unlimited because of the risks of sea
travel, was eventually fixed at 12%. The money loaned
is pecunia trajecticia (money conveyed overseas).
Also spelled nauticum foenus. -Also termedfen us
nauticum; nautica pecunia;foenus nauticum.
NAV. abbr. NET ASSET VALUE.
navagium (na-vay-jee-~m), n. [Latin "ship; voyage"] Hist.
A tenant's duty to transport the lord's goods by ship.
naval, adj. (15c) 1. Ofor relating to ships or shipping. 2.
Ofor relating to a navy. See NAVY.
naval law. A system of regulations governing naval
forces. See CODE OF MILITARY rUSTICE. [Cases: Armed
Services Military Justice C=>507.]
navarch (nay-vahrk), n. [fro Greek naus "ship" + archos
"chief"] Hist. A master of an armed ship. Also
termed navarchus. Cf. NAVICULARIUS.
navicularius (n~-vik-y~-lair-ee-ds), n. [Latin "ship
owner"] Hist. A person engaged in the shipping
business.
navigable (nav-i-gd-bdl), adj. (ISc) 1. Capable ofallowing
vessels or vehicles to pass, and thereby usable for travel
or commerce <the channel was barely navigable because
it was so narrow>. [Cases: Navigable Waters
navigable in fact, adj. Naturally usable for travel or
commerce in the present condition. - A stream is
naVigable in fact if, in its natural and ordinary state,
it can be used for travel or commerce. For admiralty
jurisdiction, the water must be capable ofbeing used
as a route in interstate or international commerce in
customary modes oftravel. [Cases: NaVigable Waters 2. Capable of being steered <navigable aircraft>.
Also termed boatable. See NAVIGABLE WATER.
navigable airspace. See AIRSPACE.
navigable sea. Int'llaw. The ocean waters divided into
three zones of control among nations: (1) the inland
waters, which are near a nation's shores and over which
a nation has complete sovereignty; (2) territorial waters,
which are measured from the seaward edge of the
inland waters, over which a nation has extensive control
but over which innocent parties must be allowed to
travel to other nations; and (3) the high seas, which are
international waters not subject to the domain of any
Single nation. [Cases: International Law
navigable water. 1. At early common law, any body of
water affected by the ebb and flow ofthe tide. -This test
was first adopted in England because most of England's
in-fact navigable waters are influenced by the tide,
unlike the large inland rivers that are capable ofsup
porting commerce in the United States. Also termed
boatable water. [Cases: Navigable Waters
"In addition to its bearing on admiralty jurisdictional inqui
ries, the navigable waters issue comes up in cases involv
Ing the scope of Congress's regulatory authority under
the commerce clause; the validity and interpretation of
a variety of statutes and regulations administered by the
Coast Guard; the powers of the Corps of Engineers over
waterways, dams, marinas, etc., under the Rivers & Harbors
Act and other statutes; the Federal Power Commission's
authority to inspect and license electricity-generating
dams; the existence and exercise of a servitude of naviga
tion, which affects both public access to waterways on
private land and governmental regulatory authority over
such waters; and disputes over the ownership of stream
beds. The for |
on
private land and governmental regulatory authority over
such waters; and disputes over the ownership of stream
beds. The foregoing is not an exhaustive listing. Well over a
thousand federal statutes use the term 'navigable waters.'"
David W. Robertson, Steven F. Friedell & Michael F. Sturley,
Admiralty and Maritime Law in the United States 53 n.l
(2001).
2. (usu. pl.) A body ofwater that is used, or typically
can be used, as a highway for commerce with ordinary
modes of trade and travel on water. -Under the
Commerce Clause, Congress has broad jurisdiction
over all navigable waters of the United States. [Cases:
Navigable Waters
navigable water ofthe United States. Navigable water
that alone -or in combination with other waters
forms a continuous highway for commerce with other
states or foreign countries.
navigate, lIb. (16c) 1. To travel or sail in a vessel on water
<to navigate from New York to Bermuda>. [Cases:
CollisionC::='3, 90, 103.] 2. To steer <to navigate the
plane>. 3. To make way through, on, or about some
thing <the plaintiff was unable to navigate the stairs
in the dark>.
navigation. (16c) 1. The act of sailing vessels on water.
2. The process and business ofdirecting the course of
a vessel from one place to another. See RULES OF NAVI
GATION.
navigation easement. See EASEMENT.
navigatiou servitude. See SERVITUDE (2).
navis (nay-vis), 11. [Latin] A ship; a vessel.
1129
navy. (I4c) 1. A fleet ofships. 2. The military sea force of
a country, including its collective ships and its corps
of officers and enlisted personnel; esp. (usu. cap.), the
division ofthe U.S. armed services responsible primar
ily for seagoing forces . The U.S. Constitution gives
Congress the power to establish a navy and make laws
governing the naval forces. U.S. Canst. art. I, 8, cl.
13-14. [Cases: Armed Services (;:='4.J
Navy Department. A division of the Department of
Defense that oversees the operation and efficiency ofthe
Navy, including the Marine Corps component (and the
U.S. Coast Guard when operating as a naval service).
Established in 1798, the Department is headed by
the Secretary of the Navy, who is appointed by the
President and reports to the Secretary of Defense.
Also termed Department of the Navy. [Cases: Armed
Services
navy yard. (l8c) The land on which ships are built for the
U.S. Navy and the contiguous waters that are necessary
to float the ships.
NAWL. abbr. NATIONAL ASSOCIATION OF WOMEN
LAWYERS.
nay, n. Parliamentary law. A negative vote.
nazeranna (naz-;:;-ran-d). Hist. The amount that a person
paid to the government as an acknowledgment for
public office or a grant ofpublic lands.
N.B. abbr. [Latin nota bene] (17c) Note well; take
notice -used in documents to call attention to some
thing important.
NBA. abbr. NATIONAL BAR ASSOCIATION.
NBF!. abbr. Nonbank financial institution. See MONEY
SERVICE BUSINESS.
NCA. abbr. NATIONAL CEMETERY ADMINISTRATION.
NCBL. abbr. NATIONAL CONFERENCE OF BLACK LAW
YERS.
NCCUSL (n<l-k[y]oo-S<ll). abbr. NATIONAL CONFERENCE I
OF COMMISSIONERS ON UNIFORM STATE LAWS.
n.c.d. abbr. NEMINE CONTRADICENTE.
NCPC. abbr. NATIONAL CAPITAL PLANNING COM MIS- I
SlON
NCR. abbr. NATIONAL CAPITAL REGION.
NCUA. abbr. NATIONAL CREDIT UNION ADMINISTRA- I
TION.
N.D. abbr. 1. Northern District, in reference to a U.S.
judicial district. 2. NEMINE DISSENTIENTER.
NDMS. abbr. NATIONAL DISASTER MEDICAL SYSTEM.
NDP. abbr. Nondepository provider offinancial services.
See MONEY SERVICE BUSINESS.
N.E. abbr. NORTH EASTERN REPORTER.
N/E. See NOTICE OF ALLOWABILITY!EXAMINER's AMEND
MENT.
NEA. abbr. NATIONAl. ENDOWMENT FOR THE ARTS.
ne admittas (nee ad-mit-<ls), n. [Latin "that you admit
not"J Eccles. law. A writ prohibiting a bishop, usu. necessaries
in a quare impedit action, from admitting the other
party's clerk to be a parson ofa church . After a party
institutes a quare impedit action to enforce a right to
propose a clerk to the position of parson of a vacant
church (right of advowson), that party can resort to
the ne admittas writ ifit is believed that the bishop will
admit another person's proposed clerk before the quare
impedit action concludes. See QUARE IMPEDlT.
neap tide. See TIDE.
near, adv. & adj. (l3c) 1. Close to; not far away, as a
measure of distance <the neighbors' houses are near
one another>. 2. Almost; close in degree <a near miss> .
3. Closely tied by blood <my brother is a near relative>.
4. Familiar; intimate <a near friend>.
nearly closed-ended claim. See PATENT CLAIM.
near money. See current asset under ASSET.
neat, adj. (bef. 12c) 1. Clean; pure. 2. Free from extrane
ousmatter.
neat weight. See net weight under WEIGH T.
ne baila pas (nd bay-I;:; pah), n. [Law French "he or she
did not deliver") In an action for detinue, a defendant's
plea denying the receipt ofthe property in question.
necation (ni-kay-sh;:;n), n. [ff. Latin necare "to kill"] Hist.
The act ofkilling.
necessaries. (l4c) 1. Things that are indispensable to
living <an infant's necessaries include food, shelter,
and clothing> . Necessaries include whatever food,
medicine, clothing, shelter, and personal services are
usu. considered reasonably essential for the preserva
tion and enjoyment oflife, to the extent that a person
having a duty ofprotection must furnish them. -Also
termed necessities; necessities oflife. [Cases: Husband
and Wife C:=o 19.] 2. Things that are essential to main
taining the lifestyle to which one is accustomed <a mul
timillionaire's necessaries may include a chauffeured
limousine and a private chef>. -The term includes
whatever is reasonably needed for subsistence, health,
comfort, and education, considering the person's age,
station in life, and medical condition, but it excludes
(1) anything purely ornamental, (2) anything solely for
pleasure, (3) what the person is already supplied with,
(4) anything that concerns someone's estate or business
as opposed to personal needs, and (5) borrowed money.
Under the common law, a husband was required to pay
debts incurred by his wife or children for necessaries.
Beginning in the late 19608, most states began to change
their statutes regarding the obligation to proVide neces
saries to include both husband and wife. See DOCTRINE
OF NECESSARIES; FAMILY-EXPENSE STATUTE. [Cases;
Husband and Wife C=' 19.J
"Things may be of a useful character, but the quality or
quantity supplied may take them out of the character of
necessaries. Elementary textbooks might be a necessary
to a student of law, but not a rare edition of 'Littleton's
Tenures,' or eight or ten copies of 'Stephen's Commentar
ies.' Necessaries also vary according to the station in life
of the infant or his peculiar circumstances at the time.
The quality of clothing suitable to an Eton boy would be
unnecessary for a telegraph clerk; the medical attendance
1130 necessarily included offense
and diet required by an invalid would be unnecessary to
one in ordinary health. It does not follow therefore that
because a thing is of a useful class, a judge is bound to
allow ajury to say whether or no it is a necessary." William
R. Anson, Principles of the Law of Contract 172 (Arthur L
Corbin ed., 3d Am. ed. 1919).
3. Maritime law. Supplies and services needed for
the maintenance and operation of a vessel, including
repairs, tow fees, and the costs ofloading and unload
ing. Authorized provision of necessaries automati
cally confers a maritime lien to the provider under the
Federal Maritime Lien Act, 42 USCA 971-93. [Cases:
Maritime Liens
"The case law is clear that 'necessaries' does not mean
absolutely indispensable; rather, the term refers to what
is reasonably needed in the ship's business: Thomas J.
Schoenbaum, Admiralty and Maritime Law 256 (1987).
necessarily included offense. See lesser included offense
under OFFENSE (1).
necessarius (ne-sJ-sair-ee-Js), adj. [Latin] 1. Necessary;
essential. 2. Unavoidable; obligatory; compelling.
necessary and proper, adj. (16c) Being appropriate and
well adapted to fulfilling an objective.
Necessary and Proper Clause. (1926) The clause of the
U.S. Constitution permitting Congress to make laws
"necessary and proper" for the execution of its enu
merated powers. U.S. Const. art. I, 8, cl. 18. The
Supreme Court has broadly interpreted this clause to
grant Congress the implied power to enact any law rea
sonably designed to achieve an express constitutional
power. McCulloch v. Maryland, 17 U.S. (4 Wheat.)
316 (1819). Also termed Basket Clause; CoeffiCient
Clause; Elastic Clause; Sweeping Clause. [Cases: United
States
necessary damages. See general damages under
DAMAGES.
necessary deposit. See DEPOSIT (5).
necessary diligence. See DILIGENCE.
necessary domicile. See DOMICILE.
necessary implication. See IMPLICATION.
necessary improvement. See IMPROVEMENT.
necessary inference. (I7c) A conclusion that is unavoid
able ifthe premise on which it is based is taken to be
true.
necessary intromission. See INTROMISSION.
necessary party. See PARTY (2).
necessary repair. (16c) An improvement to property
that is both needed to prevent deterioration and proper
under the circumstances.
necessary way. See easement by necessity under
EASEMENT.
necessitas (nJ-ses-i-tas), n. [Latin] Roman law. 1. Neces
sity. 2. A force or influence that compels an unwilling
person to act. The term refers to a lack of free will
to do a legal act, as opposed to libera valuntas ("free
will"). necessitas culpabi/is (nJ-ses-i-tas kJI-pay-bJ-lis). [Latin
"culpable necessity"] Hist. An unfortunate necessity
that, while essentially excusing the act done under its
compulsion, does not necessarily relieve the actor from
blame.
"And as to the necessity which excuses a man who kills
another se defendendo lord Bacon entitles it necessitas cul
pabilis . ... For the law intends that the quarrel or assault
arose from some unknown wrong ... and since in quarrels
both parties may be, and usually are, in some fault; and
it scarce can be tried who was originally in the wrong; the
law will not hold the survivor entirely gUiltless. But it is
clear, in the other case, that where I kill a thief that breaks
into my house, the original default can never be upon my
side." 4 William Blackstone, Commentaries on the Laws of
England 186-87 (1769).
necessitate juris (n,,-ses-i-tay-tee joor-is). [Latin] Hist.
By necessity oflaw. That phrase appeared in refer
ence to acts necessarily arising from the effect ofa legal
rule.
necessities. (14c) 1. Indispensable things ofany kind. 2.
NECESSARIES (1).
necessities oflife. See NECESSARIES (1).
necessitous, adj. (17c) Living in a state ofextreme want;
hard up.
necessitous circumstances. (17c) The situation of one
who is very poor; extreme want.
necessitudo (m-ses-i"t[y]oo-doh), n. [Latin "need"] Hist.
1. An obligation. 2. A close connection or relationship
between persons, such as a family relationship.
necessity. 1. Criminal law. A justification defense for a
person who acts in an emergency that he or she did
not create and who commits a harm that is less severe
than the harm that would have occurred but for the
person's actions . For example, a mountain climber
lost in a blizzard can assert necessity as a defense to
theft offood and blankets from another's cabin. -Also
termed choice ofevils; duress ofcircumstances; lesser
evils defense. See lesser-evils defense under DEFENSE
(1). [Cases: Criminal Law (;:::c38.] 2. Torts. A privilege
that may relieve a person from liability for trespass
or conversion if that person, having no alternative,
harms another's property in an effort to protect life
or health.
"In some cases even damage intentionally done may not
involve the defendant in liability when he is acting under
necessity to prevent a greater evil. The preCise limits of the
defence are not clear, for it has affinities with certain other
defences, such as act of God, self-help, duress, or inevi
table accident. It is distinguishable from self-defence on
the ground that this presupposes that the plaintiff |
or inevi
table accident. It is distinguishable from self-defence on
the ground that this presupposes that the plaintiff is prima
facie a wrongdoer: the defence of necessity contemplates
the infliction of harm on an innocent plaintiff. The defence,
if it exists, enables a defendant to escape liability for the
intentional interference with the security of another's
person or property on the ground that the acts complained
of were necessary to prevent greater damage to the com
monwealth or to another or to the defendant himself, or to
their or his property. The use of the term necessity serves
to conceal the fact that the defendant always has a chOice
between two evils. This is what distinguishes the defence
of necessity from that of impossibility." R.FV Heuston,
Salmond on the Law of Torts 493 (17th ed. 1977).
1131
manifest necessity. (17c) A sudden and overwhelming
emergency, beyond the court's and parties' control,
that makes conducting a trial or reaching a fair result
impossible and that therefore authorizes the granting
of a mistrial. 1he standard of manifest necessity
must be met to preclude a defendant from success
fully raising a plea offormer jeopardy after a mistrial.
[Cases: Double Jeopardy (;:::)99.]
military necessity. See MILITARY NECESSITY.
moral necessity. (I7c) A necessity arising from a duty
incumbent on a person to act in a particular way.
physical necessity. (17c) A necessity involving an actual,
tangible force that compels a person to act in a par
ticular way.
private necessity. (l6c) Torts. A necessity that involves
only the defendant's personal interest and thus
provides only a limited privilege . For example, if
the defendant harms the plaintiff's dock by keeping
a boat moored to the dock during a hurricane, the
defendant can assert private necessity but must com
pensate the plaintiff for the dock's damage. [Cases:
Negligence C-510(3).]
public necessity. (16c) Torts. A necessity that involves
the public interest and thus completely excuses the
defendant's liability . For example, if the defendant
destroys the plaintiff's house to stop the spread of a
fire that threatens the town, the defendant can assert
public necessity.
3. RULE OF NECESSITY.
necessity defense. See TUSTIFICA TION (2).
neck verse. Hist. A verse, usu. consisting ofthe opening
verse ofPsalm 51 (Miserere mei, Deus "Have mercy on
me, 0 God "), which was used as a literacy test for an
accused who claimed benefit of clergy. An accused
who read the passage satisfactorily would not receive
the maximum sentence (the person's neck would be
saved). Although judges could assign any passage, they
usu. chose Psalm 51, so that for many years criminals
memorized this verse and pretended to read it. Still, the
records show that many accused persons failed the test.
The reading ofthe neck verse was abolished in 1707. See
BENEFIT OF CLERGY.
"During the fourteenth and fifteenth centuries the judges'
attitudes to benefit of clergy changed completely, and
they came to see it as a regular means of escape from
the mandatory death penalty. Physical appearance was
disregarded, and reading became the sole test of clerical
status. When a man was convicted of a felony, he would
fall on his knees and 'pray the book'; he would then be
tendered a passage from the psalter, known as the neck
verse, and if he could read or recite it satisfactorily his
clergy was taken to be proved .... Strictly speaking, the
deciSion whether the convict read 'as a clerk' was for the
ordinary; but he was subject to the control of the judges,
and could be fined for refusing to accept someone. By the
end of the sixteenth century as many as half of all men
convicted of felony were recorded as having successfully
claimed benefit of clergy." J.H. Baker, An Introduction to
English Legal History 587 (3d ed. 1990). neexeat
nec manifestum (nek man-i-fes-t<lm). [Latin] Civil law.
Not manifest. The phrase usu. referred to a theft in
which the thief was not caught in the act.
ne conjuges mutuo amore se invicem spolient (nee k<ln
joo-jeez myoo-choo-oh <l-mor-ee see in-VI-S<lm spoh
lee-<lnt). [Latin] Roman & civil law. Lest spouses through
their mutual love should impoverish one another.
The phrase appeared in reference to the rationale for
holding that donations between husband and wife were
invalid. A similar phrase, ne mutuato amore invicem
spoliarentur ("lest they should be impoverished by each
other through their mutual affection"), was also used.
necropsy (nek-rop-see), See AUTOPSY (1).
ne disturba pas (n<l di-st<lr-b<l pah), n. [Law French" did
not disturb"] Eccles. law. A defendant's general denial
(plea ofthe general issue) in a quare impedit action. See
QUARE IMPEDIT.
ne dominia rerum sint incerta, neve lites sint perpetuae
(nee d<l-min-ee-d reer-<lm sint in-s<lr-t<l, nee-vee h-teez
sint p<lr-pech-oo-ee), [Latin] Hist. Lest the ownership
of things should remain uncertain or lawsuits never
come to an end. The phrase appeared in reference to
the principle on which all actions prescribed after (usu.)
30 years. See PRESCRIPTION.
ne dona pas (n<l doh-n<l pah), n. [Law French "did not
give"] Hist. A defendant's general denial (plea of the
general issue) in a formedon action, alleging that the
plaintiff was given the right to land under a gift of
tail. Also termed non dedit. See FORMEDON.
nee (nay), adj. [French] (17e) (Of a woman) born.
This term is sometimes used after a married woman's
name to indicate her maiden name <Mrs. Robert Jones,
nee Thatcher>. The masculine form (not common in
English) is nt? Also spelled nee.
need, n. (bef. 12c) 1. "The lack ofsomething important; a
requirement. 2. Indigence. -need, vb.
needy, adj. (12c) 1. Needful; necessary, 2. Indigent; very
poor. Needy implies a more permanent and less urgent
condition than necessitous. See NECESSITOUS.
ne exeat (nee ek-see-dt [or ek-see-atJ). [Latin "that he not
depart"]. 1. A writ restraining a person from leaving
the republk; speci., an equitable writ ordering the
person to whom it is addressed not to leave the juris
diction of the court or the state. Ne exeat writs are
usu. issued to ensure the satisfaction ofa claim against
the defendant. The full phrase is ne exeat republica (nee
ek-see-<lt [or ek-see-at] ri-p<lb-li-k<lh) [Latin "let him
not go out ofthe republic"]. 2. Family law. An equitable
writ restraining a person from leaving, or removing a
child or property from, the jurisdiction . A ne exeat is
often issued to prohibit a person from removing a child
or property from the jurisdiction and sometimes
from leaving the jurisdiction. -Also termed writ of
ne exeat; ne exeat republica; ne exeat regno. [Cases: Ne
Exeat (;:::> 1.]
"The district courts of the United States ... shall have
such jurisdiction to make and issue in civil actions, writs
and orders of injunction, and of ne exeat republica,
1132 ne exeat regno
orders appointing receivers, and such other orders and
processes ... as may be necessary or appropriate for the
enforcement of the internal revenue laws." IRC (26 USCA)
7402(a).
"Such a writ [ne exeat] might be issued upon the commence
ment of the suit for equitable relief, during the pendency of
the suit, or upon issuance of the final decree to secure its
enforcement. But such writ related primarily to the person
of the defendant and issued only upon satisfactory proof
that he planned or intended to remove himself beyond the
court's jurisdiction so that he might escape obedience to
such command as might be or had been laid upon him.
The writ has been frequently termed an equitable bail. It
involves taking and keeping the defendant in custody until
he gives bailor bond in a designated amount, conditioned
upon his keeping himself amenable to the effective pro
cesses of the court." William Q. de Funiak, Handbook of
Modern Equity 21 (2d ed. 1956).
ne exeat regno. See NE EXEAT.
ne exeat republica. See NE EXEAT.
nefas (nee-fas), n. [Latin ne "not" +fas "right"] 1. Roman
law. Something that the gods forbid. 2. Roman law.
Something against the law or custom. 3. Hist. Some
thing that is wicked. Cf. FAS.
nefastus (ni-fas-t;}s), n. [Latin ne "not" +fastus "lawful for
public business"] Roman law. A day when it is unlawful
to open the courts, administer justice, or hold public
assemblies. The priests in charge of supervising the
laws and religious observances established an official
calendar, on which certain days, marked "nefasti," were
to be devoted to religious or public ceremonies. -Also
termed dies nefasti. Cf. dies fasti under DIES.
negate, vb. (I7c) 1. To deny. 2. To nullify; to render inef
fective.
negative, adj. (I5c) 1. Of or relating to something bad;
not positive <a negative attitude>. 2. Of or relating
to refusal of consent; not affirmative <a negative
answer>.
negative, n. (I6c) 1. A word or phrase ofdenial or refusal
<"no" and "not" are negatives>. 2. A word expressing
the opposite of the positive <two negatives and one
positive>. 3. The original plate or film of a photo
graph, on which light and shadows are the opposite of
the positive images later created and printed <not only
the pictures, but also the negatives, were required to be
returned>. 4. Archaic. The power of veto <the king's
negative has eroded>.
negative, vb. (ISc) To negate; to deny, nullify, or render
ineffective <the jury negatived fraud>.
negative act. See ACT.
negative amortization. See AMORTIZATION.
negative averment. See AVERMENT.
negative cash flow. See CASH FLOW.
negative causation. See CAUSATION.
Negative Commerce Clause. See Dormant Commerce
Clause under COMMERCE CLAUSE.
negative condition. See CONDITION (2).
negative contingent fee. See reverse contingent fee under
CONTINGENT FEE. negative covenant. See COVENANT (1).
negative defense. See DEFENSE (1).
negative disinheritance. See DISINHERITANCE.
negative duty. See DUTY (1).
negative easement. See EASEMENT.
negative equity. See EQUITY (7).
negative evidence. See EVIDENCE.
negative externality. See EXTERNALITY.
negative limitation. Patents. In a patent application, a
claim that describes what the element is not or does
not do, rather than what it is or does . Although older
caselaw held that a negative limitation rendered a claim
indefinite, more recent decisions allow those that define
a clear alternative as long as the claim is not overbroad.
[Cases: Patents (:::::0 101(3).]
negative misprision. See MISPRISION.
negative plea. See PLEA (3).
negative-pledge clause. (1935) 1. A provision requiring a
borrower, who borrows funds without giving security,
to refrain from giving future lenders any security
without the consent of the first lender. 2. A provision,
usu. in a bond indenture, stating that the issuing entity
will not pledge its assets ifit will result in less security
to the bondholders under the indenture agreement.
negative pregnant. (I7c) A denial implying its affir
mative opposite by seeming to deny only a qualifica
tion of the allegation and not the allegation itself .
An example is the statement, "I didn't steal the money
last Tuesday," the implication being that the theft
might have happened on another day. -Also termed
negative pregnant with an affirmative. Cf. AFFIRMATIVE
PREGNANT. [Cases: Pleading (:::::0 126.]
negative prescription. See PRESCRIPTION (4).
negative proof. See PROOF.
negative reprisal. See REPRISAL.
negative right. See RIGHT.
negative servitude. See SERVITUDE (2).
negative statute. See STATUTE.
negative testimony. See negative evidence under
EVIDENCE.
negative veto. See qualified veto under VETO.
neglect, n. (16c) 1. The omission of proper attention
to a person or thing, whether inadvertent, negligent,
or willful; the act or condition of disregarding. 2.
The failure to give proper attention, supervision, or
necessities, esp. to a child, to such an extent that harm
results or is likely to result. Cf. ABUSE. -neglect, vb.
neglectful, adj.
"'Neglect' is not the same thing as 'negligence'. In the
present connection the word 'neglect' indicates, as a purely
objective fact, that a person has not done that which it
was his duty to do; it does not indicate the reason for this
failure. 'Negligence,' on the other hand, is a subjective
state of mind, and it indicates a particular reason why the
man has failed to do his duty, namely because he has not
1133
kept the performance of the duty in his mind as he ought
to have done. A man can 'neglect' his duty either intention
ally or negligently." J.W. Cecil Turner, Kenny's Outlines |
A man can 'neglect' his duty either intention
ally or negligently." J.W. Cecil Turner, Kenny's Outlines of
Criminal Law 108 n.1 (l6th ed. 1952).
child neglect. (1930) The failure of a person respon
sible for a minor to care for the minor's emotional
or physical needs . Child neglect is a form of child
abuse. Local child-welfare departments investigate
reports of child neglect. In a severe case, criminal
charges may be filed against a person suspected of
child neglect. [Cases: Infants C=> 156.]
culpable neglect. (I8c) Censurable or blameworthy
neglect; neglect that is less than gross carelessness
but more than the failure to use ordinary care.
developmental neglect. Failure to provide necessary
emotional nurturing and physical or cognitive stimu
1ation' as a result of which a child could suffer from
serious developmental delays. [Cases: Infants C=>
156.]
educational neglect. Failure to ensure that a child
attends school in accordance with state law. [Cases:
Infants G 159.]
excusable neglect. (1855) A failure which the law will
excuse -to take some proper step at the proper time
(esp. in neglecting to answer a lawsuit) not because
ofthe party's own carelessness, inattention, or willful
disregard ofthe court's process, but because of some
unexpected or unavoidable hindrance or accident or
because of reliance on the care and vigilance of the
party's counselor on a promise made by the adverse
party. [Cases: Federal Civil Procedure G'2448, 2656;
Judgment 362.]
inexcusable neglect. (18c) Unjustifiable neglect; neglect
that implies more than unintentional inadvertence.
A finding of inexcusable neglect in, for example,
failing to file an answer to a complaint will prevent
the setting aside of a default judgment. [Cases: Federal
Civil Procedure C=>2448, 2656; Judgment C=: 143,
362.]
medical neglect. Failure to provide medical, dental,
or psychiatric care that is necessary to prevent or to
treat serious physical or emotional injury or illness. _
In determining whether a parent's refusal to consent
to medical treatment is neglectful, courts use any
of three approaches: (1) an ad hoc test, (2) a best
interests-of-the-child test, or (3) a balancing test that
weighs the interests ofthe parents, the child, and the
state. Cf. FAITH-HEALING EXEMPTION. [Cases: Infants
C:::>159.]
physical neglect. Failure to proVide necessaries, the lack
ofwhich has caused or could cause serious injury or
illness. [Cases: Infants C=> 156.]
willful neglect. (18c) Intentional or reckless failure to
carry out a legal duty, esp. in caring for a child. [Cases:
Infants G 156.]
neglected child. See CHILD.
neglect hearing. See HEARING. negligence
neglegentia (neg-li-jen-shee-d), n. [Latin] Roman law.
Carelessness; inattentive omission . Neglegentia can
be ofvarying degrees, which mayor may not result
in actionable liability. -Also spelled negligentia. See
CULPA. Cf. DILIGENTIA.
"In the sources negligentia is tantamount to culpa, and
similarly graduated (magna, lata negligentia). Precision in
terminology is no more to be found here than in the field
of culpa. One text declares ... 'gross negligence (magna
negligentia) is culpa, magna culpa is dolus'; another says:
'gross negligence (disso/uta negligentia) is near to dolus
(prope dolum).' In the saying 'lata culpa is exorbitant
(extreme) negligence, Le., not to understand (intelligere)
what all understand' ... negligentia is identified with igno
rance." Adolf Berger, Encyclopedic Dictionary ofRoman Law
593 (1953).
lata neglegentia (lay-t;) neg-li-jen-shee-;}). Extreme
negligence resulting from an unawareness of some
thing that the actor should have known.
magna neglegentia (mag-nd neg-li-jen-shee-a). See
gross negligence under NEGLIGENCE.
negligence, n. (14c) 1. The failure to exercise the standard
ofcare that a reasonably prudent person would have
exercised in a similar situation; any conduct that falls
below the legal standard established to protect others
against unreasonable risk of harm, except for conduct
that is intentionally, wantonly, or willfully disregard
ful of others' rights . The term denotes culpable care
lessness. The Roman-law equivalents are culpa and
neglegentia, as contrasted with dolus (wrongful inten
tion). -Also termed actionable negligence; ordinary
negligence; Simple negligence. [Cases: Negligence (:::::>
201, 233, 250.] 2. A tort grounded in this failure, usu.
expressed in terms of the follOWing elements: duty,
breach of duty, causation, and damages. [Cases: Neg
ligence (~202.J
"Negligence in law ranges from inadvertence that is hardly
more than accidental to Sinful disregard of the safety of
others." Patrick Devlin, The Enforcement of Morals 36
(1968).
"During the first half of the nineteenth century, negligence
began to gain recognition as a separate and independent
basis of tort liability. Its rise coincided in a marked degree
with the Industrial Revolution; and it very probably was
stimulated by the rapid increase in the number of aCCidents
caused by industrial machinery, and in particular by the
invention of railways. It was greatly encouraged by the
disintegration of the old forms of action, and the disap
pearance of the distinction between direct and indirect
injuries, found in trespass and case ... Intentional
injuries, whether direct or indirect, began to be grouped
as a distinct field of liability. and negligence remained
as the main basiS for unintended torts. Negligence thus
developed into the dominant cause of action for accidental
injury in this nation today." W. Page Keeton et aI., The Law
ofTorts 28, at 161 (W. Page Keeton ed., 5th ed. 1984).
"Negligence is a matter of risk -that is to say. of recogniz
able danger of injury. .. In most Instances, it is caused
by heedlessness or inadvertence, by which the negligent
party is unaware of the results which may follow from his
act. But it may also arise where the negligent party has
conSidered the possible consequences carefully, and has
exercised his own best judgment. The almost universal use
of the phrase 'due care' to describe conduct which is not
negligent should not obscure the fact that the essence of
negligence is not necessarily the absence of soliCitude for
1134 negligence
those who may be adversely affected by one's actions but
is instead behavior which should be recognized as involv
ing unreasonable danger to others." Id., at 169.
active negligence. (1875) Negligence resulting from an
affirmative or positive act, such as driving through a
barrier. Cf. passive negligence.
advertent negligence. (1909) Negligence in which the
actor is aware ofthe unreasonable risk that he or she
is creating; RECKLESSNESS. Also termed willful neg
ligence; supine negligence.
casual negligence. A plaintiff's failure to (1) pay rea
sonable attention to his or her surroundings, so as to
discover the danger created by the defendant's neg
ligence, (2) exercise reasonable competence, care,
diligence, and skill to avoid the danger once it is per
ceived, or (3) prepare as a reasonable person would to
avoid future dangers.
collateral negligence. An independent contractor's
negligence, for which the employer is not
liable. See COLLATERAL-NEGLIGENCE DOCTRINE.
comparative negligence. (1862) A plaintiff's own negli
gence that proportionally reduces the damages recov
erable from a defendant. -Also termed comparative
fault. See COMPARATIVE-NEGLIGENCE DOCTRINE.
[Cases: Negligence D549.]
concurrent negligence. (1831) The negligence of two
or more parties acting independently but causing the
same damage. Cf. joint negligence.
contributory negligence. (1822) 1. A plaintiff's own
negligence that played a part in causing the plain
tiff's injury and that is significant enough (in a few
jurisdictions) to bar the plaintiff from recovering
damages. In most jurisdictions, this defense has
been superseded by comparative negligence. See CON
TRIBUTORY-NEGLIGENCE DOCTRINE; DISTRACTION
DOCTRINE. [Cases: Negligence 2. Rare. The
negligence ofa third party neither plaintiff nor
the defendant whose act or omission played a part
in causing the plaintiff's injury. [Cases: Negligence
D540.j
"The contributory negligence of a third party is no excuse
for the negligence of the defendant." Thomas E. Holland,
The Elements ofJurisprudence 154 (13th ed. 1924).
criminal negligence. (1838) Gross negligence so
extreme that it is punishable as a crime. For
example, involuntary manslaughter or other negli
gent homicide can be based on criminal negligence,
as when an extremely careless automobile driver kills
someone. -Also termed culpable negligence; gross
negligence. [Cases: Criminal Law D23; Negligence
D 1800~1802.]
"Though the legislatures and the courts have often made
it clear that criminal liability generally requires more fault
than the ordinary negligence which will do for tort liability,
they have not so often made it plain just what is required
in addition to tort negligence greater risk, subjective
awareness of the risk, or both. Statutes are sometimes
worded in terms of 'gross negligence' or 'culpable negli
gence' or 'criminal negligence,' without any further defini
tion of these terms .... The courts thus have had to do their best with little guidance from the legislature, with varying
results." Wayne R. LaFave & Austin W. Scott Jr., Criminal Law
3.7, at 235-37 (2d ed. 1986).
culpable negligence. (l7c) 1. Negligent conduct that,
while not intentional, involves a disregard of the con
sequences likely to result from one's actions. 2. See
criminal negligence.
"'Culpable negligence,' while variously defined, has been
held incapable of exact definition; it means something
more than negligence .... In connection with negligence,
the word 'culpable' is sometimes used in the sense of
'blamable,' and it has been regarded as expressing the
thought of a breach of a duty or the commission of a fault;
but culpable negligence has been held to amount to more
than 'blameworthy' conduct .... It does not involve the
element of intent .... On the other hand, it has been said
to be intentional conduct which the actor may not intend to
be harmful but which an ordinary and reasonably prudent
man would recognize as involving a strong probability of
injury to others." 65 c.J.5. Negligence 1(13) (1966).
gross negligence. (16c) 1. A lack of slight diligence or
care. [Cases: Negligence ~~273.]2. A conscious, vol
untary act or omission in reckless disregard of a legal
duty and of the consequences to another party, who
may typically recover exemplary damages. Also
termed reckless negligence; wanton negligence; willful
negligence; willful and wanton negligence; hazardous
negligence; magna neglegentia. [Cases: Damages
91.5(1); Negligence ~273.] 3. See criminal negli
gence.
"Negligence is gross if the precautions to be taken against
harm are very simple, such as persons who are but poorly
endowed with physical and mental capacities can easily
take." H.L.A. Hart, "Negligence, Mens Rea and Criminal
Responsibility," in Punishment and Responsibility 136, 149
(1968).
"Cross Negligence. As it originally appeared, this was very
great negligence, or the want of even slight or scant care.
It has been described as a failure to exercise even that
care which a careless person would use. Several courts,
however, dissatisfied with a term so nebulous ... have
construed gross negligence as requiring willful, wanton,
or reckless misconduct, or such utter lack of all care as will
be evidence thereof .... But it is still true that most courts
consider that 'gross negligence' falls short of a reckless
disregard of the consequences, and differs from ordinary
negligence only in degree, and not in kind." Prosser and
Keeton on the Law ofTorts 34, at 211-12 (W. Page Keeton
ed., 5th ed. 1984).
hazardous negligence. 1. Careless or reckless conduct
that exposes someone to extreme danger ofinjury or
to imminent periL 2. See gross negligence (2).
imputed negligence. (18c) Negligence of one person
charged to another; negligence resulting from a
party's special relationship with another party who
is originally negligent -so that, for example, a parent
might be held responsible for some acts of a child.
[Cases: Negligence (~483, 575; Parent and Child (';:;)
l3.5(2), 13.5(4).]
inadvertent negligence. (I8c) Negligence in which the
actor is not aware ofthe unreasonable risk that he or |
vertent negligence. (I8c) Negligence in which the
actor is not aware ofthe unreasonable risk that he or
she is creating, but should have foreseen and avoided
it. -Also termed simple negligence.
1135
joint negligence. (lSc) The negligence of two or more
persons acting together to cause an accident. Cf. con
current negligence.
legal negligence. See negligence per se.
negligence in law. Failure to observe a duty imposed by
law. See negligence per se; legal negligence.
negligence per se. (1841) Negligence established as a
matter of law, so that breach of the duty is not a jury
question. -Negligence per se usu. arises from a statu
tory violation. Also termed legal negligence. [Cases:
Negligence (;:=259.]
ordinary negligence. (16c) 1. Lack of ordinary dili
gence; the failure to use ordinary care. -The term is
most commonly used to differentiate between
ligence and gross negligence. [Cases: Negligence
232.] 2. NEGLIGE:-ICE (1).
passive negligence. (18c) Negligence resulting from a
person's failure or omission in acting, such as failing
to remove hazardous conditions from public property.
Cf. active negligence.
professional negligence. See MALPRACTICE.
reckless negligence. See gross negligence.
simple negligence. 1. See inadvertent negligence. 2. See
NEGLIGENCE (1).
slight negligence. (lSc) The failure to exercise the great
care of an extraordinarily prudent person, resulting in
liability in special circumstances (esp. those involving
bailments or carriers) in which lack of ordinary care
would not result in liability; lack ofgreat diligence.
subsequent negligence. (lS27) The negligence of the
defendant when, after the defendant's initial negli
gence and the plaintiff's contributory negligence, the
defendant discovers -or should have discovered
that the plaintiff was in a position of danger and
fails to exercise due care in preventing the plaintiff's
injuries. -Also termed supervening negligence. See
LAST-CLEAR-CHANCE DOCTRINE. [Cases: Negligence
(;:=530.1
supine negligence. See advertent negligence.
tax negligence. Negligence arising out ofthe disregard
oftax-payment laws, for which the Internal Revenue
Service may impose a penalty -5% of the amount
underpaid. IRC (26 USCA) 6651(a). [Cases: Internal
Revenue (;:5219.J
wanton negligence. See gross negligence.
willful and wanton negligence. See gross negligence.
willful negligence. 1. See advertent negligence. 2. See
gross negligence.
negligence rule. (1914) Commercial law. The principle
that if a party's negligence contributes to an unau
thorized signing or a material alteration in a nego
tiable instrument, that party is estopped from raising
this issue against later parties who transfer or pay the
instrument in good faith. -Examples of negligence
include leaving blanks or spaces on the amount line of
the instrument, erroneously mailing the instrument to negligent infliction of emotional distress
a person with the same name as the payee, and failing
to follow internal procedures designed to prevent forg
eries. [Cases: Banks and Banking (;:= 148(3); Bills and
Notes (;:=279,365(2).]
negligent, adj. (14c) Characterized by a person's failure
to exercise the degree of care that someone of ordinary
prudence would have exercised in the same circum
stance <the negligent driver went through the stop
sign> <negligent construction caused the bridge to
collapse>.[Cases: Automobiles 146; Negligence
(;::~~200, 232.]- negligently, adv.
"[AJ careful consideration is needed of the differences
between the meaning of expressions like 'inadvertently'
and 'while his mind was a blank' on the one hand, and
'negligently' on the other. In ordinary English, and also in
lawyers' English, when harm has resulted from someone's
negligence, if we say of that person that he has acted neg
ligently we are not thereby merely describing the frame of
mind in which he acted. 'He negligently broke a saucer' is
not the same kind of expression as 'he inadvertently broke
a saucer'. The point of the adverb 'inadvertently' is merely
to inform us of the agent's psychological state, whereas if
we say 'He broke it negligently' we are not merely adding to
this an element of blame or reproach, but something quite
specific. viz. we are referring to the fact that the agent
failed to comply with a standard of conduct with which any
ordinary reasonable man couldand would have complied: a
standard requiring him to take precautions against harm.
The word 'negligently', both in legal and in nonlegal
contexts, makes an essential reference to an omission to
do what is thus required: it is not a flatly descriptive psy
chological expression like 'his mind was a blank'," H.L.A.
Hart, "Negligence, Mens Rea and Criminal Responsibility,"
in Punishment and Responsibility 136, 147-48 (1968).
negligent act. See ACT.
negligent conversion. See technical conversion under
CONVERSION (2).
negligent entrustment. (1944) The act ofleaving a dan
gerous article (such as a gun or car) with a person who
the lender knows, or should know. is likely to use it in
an unreasonably risky manner. [Cases: Automobiles
192(11); Negligence (;:=351-355; Weapons
IS.J
negligent escape. See ESCAPE (3).
negligent hiring. Torts. An employer's lack of care in
selecting an employee who the employer knew or
should have known was unfit for the position, thereby
creating an unreasonable risk that another person
would be harmed.
negligent homicide. See HOMICIDE.
negligentia (neg-li-jen-shee-;l), n. [Latin) Roman law.
See NEGLEGENTIA.
negligent infliction of emotional distress. (1970) The
tort of causing another severe emotional distress
through one's negligent conduct. -Most courts will
allow a plaintiff to recover damages for emotional
distress if the defendant's conduct results in physical
contact with the plaintiff or, when no contact occurs,
ifthe plaintiff is in the zone ofdanger. See EMOTIONAL
DISTRESS: ZONE-OF-DANGER RULE. Abbr. NIED. Cf.
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS.
[Cases: Damages (;:=57.13.1
1136 negligent manslaughter
negligent manslaughter. See involuntary manslaughter
under MANSLAUGHTER.
negligent misrepresentation. See MISREPRESENTA
TION.
negligent offense. See OFFENSE (1).
negligent tort. See TORT.
nI?goce (ni-gohs), n. [French] Trade; business.
negotiability. (18c) The capability ofcommercial paper
to have its title transferred by indorsement and delivery,
or by delivery alone, so that the transferee has a rightful
claim on it. Negotiability (which pertains to commer
cial paper) differs from assignability (which pertains to
contracts in general) because an assignee traditionally
takes title subject to all equities, and an assignment is
not complete without notice to the debtor, whereas an
indorsee takes free of all equities and without any notice
to the debtor. [Cases: Bills and Notes C=>144-175.J
negotiable, ad). (18c) 1. (Of a written instrument) capable
ofbeing transferred by delivery or indorsement when
the transferee takes the instrument for value, in good
faith, and without notice of conflicting title claims or
defenses. [Cases: Bills and Notes ~144.]2. (Of a deal,
agreement, etc.) capable ofbeing accomplished. 3. (Of a
price or deal) subject to further bargaining and possible
change. Cf. NONNEGOTIABLE; ASSIGNABLE.
'The term 'negotiable: in its enlarged signification,
is used to describe any written security which may be
transferred by indorsement and delivery, or by delivery
merely, so as to vest in the indorsee the legal title, and
thus enable him to bring a suit thereon in his own name.
But in a strictly commercial classification, and as the term
is technically used, it applies only to those instruments
which, like bills of exchange, not only carry the legal title
with them by indorsement, or delivery, but carry as well,
when transferred before maturity, the right of the trans
feree to demand the full amounts which their faces call
for. 'Assignable' is the more appropriate term to describe
bonds, and ordinary notes, or notes of hand as they are
most commonly called; as 'negotiable' is the more fitting
term to describe the peculiar instruments of commerce." 1
John W. Daniel, A Treatise on the Law ofNegotiable Instru
ments 2, at 3 (Thomas H. Calvert ed., 7th ed. 1933).
negotiable bill oflading. See BILL OF LADING.
negotiable bond. See BOND (2).
negotiable certificate of deposit. See CERTIFICATE OF
DEPOSIT.
negotiable document of title. See DOCUMENT OF
TITLE.
negotiable instrument. (I8c) A written instrument
that (1) is Signed by the maker or drawer, (2) includes
an unconditional promise or order to pay a specified
sum ofmoney, (3) is payable on demand or at a definite
time, and (4) is payable to order or to bearer. UCC
3-104(a). Also termed negotiable paper; negotiable
note . Among the various types ofnegotiable instru
ments are bills of promissory notes, bank
checks, certificates of deposit, and other negotiable
securities. [Cases: Bills and Notes 144-175.]
"What are called 'negotiable instruments,' or 'paper to
bearer,' such as bills of exchange, or promissory notes, do really pass from hand to hand, either by delivery or
indorsement, giving to each successive recipient a right
against the debtor, to which no notice to the debtor is
essential, and which, if the paper is held bona fide and for
value, is unaffected by flaws in the title of intermediate
assignors." Thomas E. Holland, The Elements ofJurispru
dence 315-16 (13th ed. 1924).
"'One must first understand that a negotiable instrument
is a peculiar animal and that many animals calling for the
payment of money and others loosely called 'commercial
paper' are not negotiable instruments and not subject to
the rules of Article 3." James J. White & Robert 5. Summers,
2 Uniform Commercial Code 16-1, at 70 (4th ed. 1995).
negotiable note. See NEGOTIABLE INSTRUMENT.
negotiable order of withdrawal. A negotiable instru
ment (such as a check) payable on demand and issued
against funds deposited with a financial institution.
Abbr.NOW.
negotiable-order-of-withdrawal account. See NOW
account under ACCOUNT.
negotiable paper. See NEGOTIABLE INSTRUMENT.
negotiable words. (1819) The terms and phrases that
make a document a negotiable instrument. -Also
termed words ofnegotiability. See NEGOTIABLE INSTRU
MENT. [Cases: Bills and Notes
negotiate, vb. (16c) 1. To communicate with another
party for the purpose of reaching an understanding
<they negotiated with their counterparts for weeks on
end>. 2. To bring about by discussion or bargaining
<she negotiated a software license agreement>. 3. To
transfer (an instrument) by delivery or indorsement,
whereby the transferee takes the instrument for value,
in good faith, and without notice of conflicting title
claims or defenses <Jones negotiated the check at the
neighborhood bank>. [Cases: Bills and Notes (;::::c 176,
208.]
negotiated agreement. A settlement that disputing
parties reach between themselves, usu. with the help
oftheir attorneys, but without benefit offormal medi
ation. -Also termed negotiated settlement. [Cases:
Compromise and Settlement
negotiated market. See MARKET.
negotiated offering. See OFFERING.
negotiated plea. See PLEA (1).
negotiating bank. See BANK.
negotiation, n. (16c) 1. A consensual bargaining process
in which the parties attempt to reach agreement on a
disputed or potentially disputed matter. Negotia
tion usu. involves complete autonomy for the parties
involved, without the intervention of third parties.
[Cases: Contracts ('::::>25.]
"Negotiation, we may say, ought strictly to be viewed simply
as a means to an end; it is the road the parties must travel
to arrive at their goal of mutually satisfactory settlement.
But like other means, negotiation is easily converted into
an end in itself; it readily becomes a game played for its
own sake and a game played with so little reserve by those
taken up with it that they will sacrifice their own ultimate
interests in order to win it." Lon L. Fuller, Anatomy of the
Law 128 (1968).
1137
2. (usu. pl.) Dealings conducted between two or more
parties for the purpose of reaching an understanding.
3. The transfer ofan instrument by delivery or indorse
ment whereby the transferee takes it for value, in good
faith, and without notice of conflicting title claims or
defenses. See HOLDER IN DUE COURSE. [Cases: Bills and
Notes 176,208.] negotiate, vb. -negotiable,
adj. - |
: Bills and
Notes 176,208.] negotiate, vb. -negotiable,
adj. -negotiability, n.
due negotiation. The transfer of a negotiable document
of title so that the transferee takes it free of certain
claims enforceable against the transferor. This is
the good-faith-purchase exception to the doctrine
ofderivative title. VCC 7-501(4); 7-502(1). [Cases:
Warehousemen e=:15.]
negotiation letter ofcredit. See LETTER OF CREDIT.
negotiorum gestio (ni-goh-shee-or-<lm jes-chee-oh),
n. [Latin "management of another's affairs"] Roman
& civil law. A quasi-contractual situation in which
an actor (negotiorum gestor) manages or interferes in
the business transaction of another person (dominus
negotii) in that person's absence, without authority but
out of concern or friendship. La. Civ. Code art. 2292.
By such conduct, the actor is bound to conduct the
matter to a conclusion and to deliver the transaction's
proceeds to the person, who likewise must reimburse
the actor for any expenses incurred. La. Civ. Code art.
2297. A negotiorum gestio does not exist ifthe gestor
acted self-interestedly or ifthe owner expressly forbade
the gestor from acting on the owner's behalf. See actio
negotiorum gestorum under ACTIO. [Cases: Implied and
Constructive Contracts e=:2.1; Principal and Agent
(:=:149(2).]
"The negotiorum gestio, according to the Civilians, is a
species of spontaneous agency, or an interference by one
in the affairs of another, in his absence, from benevolence
or friendship, and without authority. The negotiorum gestor
acquires no right of property by means of the interfer
ence, and he is strictly bound not only to good faith, but to
ordinary care and diligence; and in some cases he is held
responsible for the slightest neglect." 2 James Kent, Com
mentaries on American Law *616 n.(c) (George Comstock
ed. 11 th ed. 1866).
negotiorum gestor (ni-goh-shee-or-<lm ;es-tor), n. [Latin
"a manager ofanother's affairs"] Roman & civil law. A
person who acts without authority to protect another
person's interests, in the reasonable belief that the
owner would approve the action ifmade aware of the
circumstances. La. Civ. Code art. 2292. 1he actor
has a claim to be compensated by the owner for the
trouble taken, and the owner has a claim for any loss
that results from the negotiorum gestor's fault. Some
times shortened to gestor. See NEGOTIORUM GESTIO. Pi.
negotiorum gestores.
negotium (ni-goh-shee-<lm), n. [Latin] Roman law. 1. A
matter; an affair, as in negotium absentis, a matter con
cerning an absent person. 2. A transaction; an agree
ment. 3. A trade; a business. 4. A civil or criminal trial.
PI. negotia.
NEH. abbr. NATIONAL ENDOWMENT FOR THE HUMANI
TIES. ne injuste vexes
n.e.i. abbr. NON EST INVENTUS.
neife (neef), n. [Law French] Hist. A person born into
bondage or serfdom; speci., a female serf. -Also
spelled naij; neif; niefe.
'"For the children of villeins were also in the same state
of bondage with their parents; whence they were called
in Latin, nativi, which gave rise to the female appellation
of a villein, who was called a neife." 2 William BlaCkstone,
Commentaries on the Laws of England 93-94 (1766).
neighbor, n. (bef. 12c) l. A person who lives near another
<Jensen's neighbor spotted the fire>. 2. A person or
thing situated near something <Canada is the United
States' neighbor to the north>. 3. A person in relation
to humankind <love thy neighbOr>.
neighborhood. (I5c) 1. 'The immediate vicinity; the area
near or next to a specified place. 2. People living in a
particular vicinity, usu. forming a community within
a larger group and having similar economic statuses
and social interests. 3. The condition of being close
together.
neighborhood effect. See EXTERNALITY.
neighboring right. (usu. pl.) Copyright. An intellectual
property right of a performer or ofan entrepreneur
such as a publisher, broadcaster, or producer, as dis
tinguished from a moral right belonging to an author
or artist as the work's creator . In civil-law systems,
neighboring rights and moral rights are typically pro
tected by different laws, while in common-law systems
both are typically protected by the same copyright
laws. Also termed related right; entrepreneurial right;
(in French) droit voisins; (in German) Leistungsschutz
recht; (in Italian) diritto connessi. Cf MORAL RIGHTS.
[Cases: Copyrights and Intellectual Property
41(3).]
"Civil law countries have generally, but not conSistently,
consigned protection of collaborative technological pro
ductions to regimes of neighboring rights. Common law
countries, with their utilitarian emphasis on the products
rather than the processes of creative work, have gener
ally, but not consistently, included these productions in
the subject matter of copyright, alongside such traditional
objects as novels and musical works" Paul Goldstein.
International Copyright: Principles, Law, and Practice 157
(2001).
neighbor principle. (1963) The doctrine that one must
take reasonable care to avoid acts or omissions that
one can reasonably foresee will be likely to injure
one's neighbor. _ According to this principle, neighbor
includes all persons who are so closely and directly
affected by the act that the actor should reasonably
think of them when engaging in the act or omission
in question.
ne injuste vexes (nee in-jOls-tee vek-seez), n. [Law Latin
"do not trouble unjustly"] Hist. A writ prohibiting a
lord from demanding more services from a tenant than
the tenure allowed.
"The writ of ne injuste vexes . .. which prohibits distresses
for greater services than are really due to the lord; being
itself of the prohibitory kind, and yet in the nature of a
writ of right. It lies, where the tenant in fee-simple and his
ancestors have held of the lord by certain services; and
1138 neither party
the lord hath obtained seisin of more or greater services,
by the inadvertent payment or performance of them by
the tenant himself. Here the tenant cannot ... avoid the
lord's possessory right, because of the seisin given by his
own hands; but is driven to this writ, to devest the lord's
possession, and establish the mere right of property, by
ascertaining the services, and reducing them to their
proper standard." 3 William Blackstone, Commentaries on
the Laws ofEngland 234 (1768).
neither party. A docket entry reflecting the parties'
agreement not to continue to appear to prosecute and
defend a lawsuit. This entry is equivalent to a dis
missal.
ne luminibus officiatur (nee loo-min-i-b<ls a-fish-ee
ay-t<lr). [Latin "that lights be not impeded"] Roman
law. An urban praedial servitude restraining a hom
eowner from constructing anything that blocks light
to an adjoining house.
nem. con. abbr. NEMINE CONTRADICENTE.
nemine contradicente (nem-i-nee kahn-tra-di-sen-tee).
Iff. Latin nemo "nobody" + contradicere "contradict"]
Without opposition or dissent . This phrase expresses
the lack of opposition by members of a court, legisla
tive body, or other group to a resolution or vote <the
motion passed nemine contradicente>. It is used in
the British House of Commons. -Abbr. nem. con.;
n.c.d. Also termed nemine dissentiente. Cf. NEMINE
DISSENTIENTE.
nem. dis. abbr. NEMINE DISSENTIENTE.
nemine dissentiente (nem-i-nee di-sen-shee-en-tee). [fro
Latin nemo "nobody" + dissentio "dissents"] Without
opposition or dissent; NEMINE CONTRADICENTE . This
phrase is used in the British House of Lords. -Abbr.
nem dis.; n.d. Cf. NEMINE CONTRADICENTE.
nemo (nee-moh), n. [Latin] No one; no man . This term
is the first word of many Latin maxims, such as nemo
est supra leges ("no one is above the law").
ne mutuato amore invicem spoliarentur (nee myoo
choo-ay-toh <l-mor-ee in-vI-sam spoh-Iee-a-ren-tar).
[Latin] See NE CONJUGES MUTUO AMORE SE INVICEM
SPOLlENT.
neonatal {nee-oh-nayt-al}, adj. (1902) Of or relating to
the first four weeks oflife. Cf. PERINATAL. -neonate
(nee-oh-nayt or nee-<l-nayt), 11.
neonaticide. See INFANTICIDE (1).
neonatology (nee-oh-nay-tol-a-jee or nee-a-na-tol-a-jee),
n. The branch of medicine dealing with the develop
ment of newborn children, as well as various disorders
of early infancy. neonatological (nee-oh-nay-ta-Ioj
i-kal or nee-a-), adj. neonatologist (nee-oh-nay-tol
a-jist or nee-a-na-tol-a-jist), n.
NEPA (nee-pa). abbr. NATIONAL ENVIRONMENTAL
POLlCY ACT.
nephew. (14c) 1. The son of a person's brother or sister;
sometimes understood to include the son ofa person's
brother-in-law or sister-in-law . This term is extended
in some wills to include a grandnephew. Cf. NIECE.
[Cases: Descent and Distribution C=-32.] half nephew. The son of one's half brother or half
sister.
2. Rist. A grandchild. 3. Hist. A descendant.
"[NJephew. . a son's or daughter's son, a grandson (also ...
a granddaughter), later also a brother's or sister's son, a
nephew, in general a descendant .... The application, as
with all other terms denoting relationship beyond the first
degree, formerly varied ('grandson,' 'nephew,' 'cousin,'
'kinsman,' etc.); its final exclusive use for 'nephew' instead
of 'grandson' is prob. due in part to the fact that, by reason
of the great difference in age, a person has comparatively
little to do with his grandsons, if he has any, while nephews
are proverbially present and attentive, if their uncle is of
any importance." 5 The Century Dictionary and Cyclopedia
i 3968 (1895).
nepos (nep-ohs), n. [Latin] 1. Roman law. A grandson. 2.
Hist. A nephew . The term nepos later became neveu
and then "nephew." See NEPHEW.
nepotism (nep-<l-tiz-am), n. (17c) Bestowal of official
favors on one's relatives, esp. in hiring.[Cases: Officers
and Public Employees C=29.] nepotistic (nep-<l
tis-tik), adj.
neptis (nep-tis), n. [Latin] Hist. 1. A granddaughter. 2.
A female descendant.
ne relessa pas (na ra-Ies-;) pah), n. [Law French "did
not release"] A plaintiffs reply to a defendant's plea of
release as a defense to liability in a case.
nerve-center test. A method courts sometimes use to
determine the location of a company's principal place
of business by examining where the company's central
decision-making authority lies . Factors include the
locations where the corporate officers, directors, and
(sometimes) shareholders reside, and where they direct
and control the corporation's activities. [Cases: Corpo
rations Federal Courts C=300.J
NESDIS. abbr. National Environmental Satellite, Data,
and Information Service. See NATIONAL OCEANIC AND
ATMOSPHERIC ADMINISTRATION.
net, n. (lSc) 1. An amount of money remaining after a
sale, minus any deductions for expenses, commissions,
and taxes. [Cases: Sales 2. The gain or loss from
a sale ofstock. 3. See net under WEIGHT.
net assets. See net worth under WORTH.
net asset value. The market value ofa share in a mutual
fund, computed by deducting any liabilities ofthe fund
from its total assets and dividing the difference by the
number of outstanding fund shares. -Abbr. NAV.
Also termed asset value. See MUTUAL FUND.
net balance. See net proceeds under PROCEEDS.
net book cost. See COST (1).
net book value. See OWNER'S EQUITY.
net-capital rules. Securities. Basic financial-responsibil
ity standards adopted by the Securities and Exchange
Commission under the Securities Exchange Act of
1934. Under these rules, securities brokers are
required to maintain a minimum level of capitalization
and to maintain aggregate indebtedness at a level less
than a specified multiple of the broker's net capital. 15
1139
USCA 7BO(c)(3); SEC Rule 15c3-1 (17 CFR 240.l5c3
1. [Cases: Securities Regulation (;::)40.13.]
net cash flow. See CASH FLOW.
net cost. See COST (1).
net |
0.13.]
net cash flow. See CASH FLOW.
net cost. See COST (1).
net earnings. See net income under INCOME.
net estate. See net probate estate under PROBATE
ESTATE.
net gain. See GAIN (3).
nether house of Parliament. Rist. The lower house of
Parliament; the English House of Commons. This
name was given to the House of Commons at the time
ofHenry VIII.
net income. See INCOME.
net investment. See INVESTMENT.
net lease. See LEASE.
net level annual premium. See PREMIUM (1).
net listing. See LISTING (1).
net loss. See LOSS.
net national product. The total value of goods and
services produced in a country during a specific period,
after deducting capital replacement costs.
net-net-net lease. See LEASE.
net operating asset. See ASSET.
net operating income. See INCOME.
net operating loss. See LOSS.
net position. 1. The difference between long and short
contracts held by a securities or commodities trader. 2.
The amount gained or lost because of a change in the
value ofa stock or commodity.
net premium. See PREMIUM (1).
net present value. See PRESENT VALUE.
net price. See PRICE.
net probate estate. See PROBATE ESTATE.
net proceeds. See PROCEEDS.
net profit. See PROFIT (1).
net-profits interest. Oil & gas. A share ofproduction free
ofthe costs ofproduction . Like a royalty, the interest
is expressed as a fraction or a percentage of production.
But unlike a royalty, it is payable only if there is a net
profit, and the costs that are used to calculate the net
profit depend on what is negotiated. [Cases: Mines and
Minerals C=>79.1(2).]
net quick assets. 1. See ASSET. 2. See QUICK-ASSET
RATIO.
net realizable value. 1. For a receivable, the amount of
cash expected from the collection ofpresent customer
balances. 2. For inventory, the selling price less the
completion and disposal costs. 3. An accounting
method requiring the value ofscrap or by-products to
be treated as a reduction in the cost of the primary
products.
net rent. See RENT (1). ne urbs ruinis deformetur
net rental. See RENTAL.
net return. See RETURN.
net revenue. See net profit under PROFIT (1).
net sale. See SALE.
net sale contract. See net listing under LISTING (1).
net single premium. See PREMIUM (1).
netspionage. [fro (Inter)net + espionage] Slang. Spying
that is enabled by and carried out through computer
networks, esp. for the purpose ofappropriating or mis
appropriating data.
net tangible worth. See WORTH.
net tonnage. See TONNAGE (1).
net valuation premium. See net premium under
PREMIUM (1).
net value. See VALUE (2).
net weight. See WEIGHT.
network element. Telecommunications. A facility or
piece of equipment used to provide telecommunica
tions service, as by a local-exchange network, and each
feature, function, or capability ofthe service. 47 USCA
153(29). [Cases: Telecommunications C=>860.]
net worth. See WORTH.
net-worth method. The procedure the Internal Revenue
Service uses to determine the taxable income of a
taxpayer who does not keep adequate records . The
change in net worth for the year determines the taxpay
er's gross income, after taking into account nontaxable
receipts and nondeductible expenses. [Cases: Internal
Revenue ~-:>4530.]
net yield. See YIELD.
ne unques (nee ;)ng-kweez). [Law French] Never.
ne unques accouple (nee ;)ng-kweez <l-k;)p-<ll), n. [Law
French "never married "] In a dower action by a widow
to recover the estate ofher deceased husband, a tenant's
plea denying the woman's marriage to the decedent.
Also termed ne unques accoup/e en loiall matrimonies.
See DOWER.
ne unques executor (nee ;)ng-kweez ig-zek-Y<l-t<lr), n.
[Law French "never executor"] A plea that the defen
dant or plaintiff is not an executor as alleged.
ne unques seise que dower (nee ;)ng-kweez see-zee b
dow-ar), n. [Law French "never seised of a dowable
estate"] His/. In a dower action, the tenant's general
denial (plea ofgeneral issue) that the widow's husband
was never seised of a dowable estate ofinheritance.
ne unques son receiver (nee ;)ng-kweez sawn ri-see-v<lr),
n. [Law French "never a receiver"] In an action for an
accounting, the defendant's plea denying the receipt of
anything from the plaintiff. -Also termed ne unques
receivour.
ne urbs ruin is deformetur (nee 3rbz rOO-I-nis di-for-m<l
t<lr). [Latin] Scots law. Lest the city should be disfigured
by ruinous houses . The phrase appeared in reference
to the jurisdiction ofthe Dean ofGuild, who presided
1140 neutral
over construction projects, to order repairs to or demo
lition of unsafe buildings.
neutral, adj. (15c) 1. Indifferent. 2. (Of a judge, mediator,
arbitrator, or actor) refraining from taking sides in a
dispute. 3. Impartial; unbiased . The term frequently
applies to statutes that regulate or restrict speech.
content-neutral. (Of a regulation or discrimination)
applicable to all speech, regardless ofviewpoint and
subject matter. See TIME-PLACE-OR-MANNER RESTRIC
TION. Cf. subject-matter-neutral; viewpoint-neutral.
[Cases: Constitutional Law (;::::> 1511.]
subject-matter-neutral. (Of a regulation or discrimi
nation) not based on the topic or subject ofspeech. See
TIME-PLACE-OR-MANNER RESTRICTION. Cf. content
neutral; viewpoint-neutral. [Cases; Constitutional
Law Cr--::}151 1.]
viewpoint-neutral. (Of a regulation or discrimination)
not based on a point ofview or an ideology. View
point neutrality was first addressed in Rosenberger
v. Visitors ofUniv. ofVa., 515 U.S. 819,115 S.Ct. 2510
(1989). See TIME-PLACE-OR-MANNER RESTRICTION.
Cf. content-neutral; subject-matter-neutral. [Cases:
Constitutional Law (;::::> 1507.]
neutral, n. (15c) 1. A person or country taking no side
in a dispute; esp., a country that is at peace and is com
mitted to aid neither of two or more belligerents. Cf.
BELLIGERENT.
"The rights of neutrals have grown up to be an important
part of international law in modern times.... Now, when a
war arises between two states, the interests of all neutrals
are more affected than formerly; or, in other words,
neutral power has increased more than war power, and the
tendency is more and more towards such alterations ofthe
code of war as will favor neutral commerce ...." Theodore
D. Woolsey, Introduction to the Study of International Law
163, at 276 (5th ed. 1878).
2. A nonpartisan arbitrator typically selected by two
other arbitrators one of whom has been selected by
each side in the dispute. [Cases: Alternative Dispute
Resolution (;::::>240.]
neutrality, n. (15c) 1. The state or quality ofbeing impar
tial or unbiased. 2. The condition of a nation that in
time ofwar takes no part in the dispute but contin
ues peaceful dealings with the belligerents. -neutral,
adj.
armed neutrality. A condition of neutrality that
the neutral state is willing to maintain by military
force.
neutrality law. Int'llaw. An act that prohibits a nation
from militarily aiding either of two or more belliger
ent powers with which the nation is at peace; esp., a
federal statute forbidding acts -such as the equipping
of armed vessels or the enlisting oftroops -designed
to assist either oftwo belligerents that are at peace with
the United States. 22 USCA 441~457. [Cases: Neu
trality Laws C::)1~5.]
neutrality proclamation. lnt'llaw. At the outbreak of
a war between two nations, an announcement by the
President that the United States is neutral and that its citizens may not violate the neutrality laws, as in the
Neutrality Proclamation of 1793, issued during the war
between France and Great Britain.
neutralization. (1817) 1. 1be act of making something
ineffective. 2. Int'llaw. The process bywhich a country's
integrity has been permanently guaranteed by interna
tional treaty, conditionally on its maintaining a perpet
ual neutrality except in its own defense . Switzerland
is the only remaining example, having been neutralized
by the Treaty of Vienna in 1815 - a provision reaf
firmed by the Treaty ofVersailles in 1919.3. The act of
declaring certain persons or property neutral and safe
from capture. See NEUTRAL PROPERTY. 4. Evidence. The
cancellation of unexpected harmful testimony from a
witness by showing, usu. by cross-examination, that
the witness has made conflicting statements . For
example, a prosecutor may attempt to neutralize testi
mony of a state witness who offers unexpected adverse
testimony. See IMPEACHMENT (2).
neutral principles. (1959) Constitutional law. Rules
grounded in law, as opposed to rules based on personal
interests or beliefs. _ In this context, the phrase was
popularized by Herbert Wechsler. See Toward Neutral
Principles of Constitutional Law, 73 Harv. L. Rev. 1
(1959).
neutral property. Things belonging to citizens of
a country that is not a party to a war, as long as the
things are properly used and labeled. For example,
harmless neutral property aboard a captured belliger
ent ship would not normally be subject to seizure. But
the hiding ofexplosives in otherwise neutral property
could allow the property to be seized as contraband.
neutron-activation analysis. (1951) A method of iden
tifying and analYZing phYSical evidence by measur
ing gamma rays emitted by a sample of material after
that material has been bombarded with neutrons in
a nuclear reactor . This technique can be used, for
example, to detect gunshot residue on the hand of
someone who recently fired a gun. The analysis is usu.
expensive to perform, but most courts allow the results
into evidence. -Abbr. NAA. [Cases: Criminal Law
(;::::>388.2.]
Nevada trust. See asset-protection trust (1) under TRUST
(3).
ne varietur (nee vair-ee-ee-tar), n. [Latin "it must not
be altered"] A notation ofidentity that a person, usu. a
notary, places on documents or translations of docu
ments. In Louisiana, this notation is typically placed
on a collateral mortgage note to bind and identify the
note with the collateral mortgage.
never indebted, plea of. (1880) A common-law
traverse or denial- by which the defendant in an
action on a contract debt denies that an express or
implied contract existed. Also termed non debit.
See TRAVERSE. [Cases: Bills and Notes (;::::>474; Con
tracts (;::::>339.]
new, adj. 1. (Of a person, animal or thing) recently come
into being <the new car was shipped from the factory
this morning>. 2. (Of any thing) recently discovered
<a new cure for cancer>. 3. (Of a person or condition)
changed from the former state <she has a new state of
mind>. 4. Unfamiliar; unaccustomed <she asked for
directions because she was new to the area>. 5. Begin
ning afresh <a new day in court>.
new acquisition. See ACQUISITION.
new and useful. Patents. Two of the requirements for an
invention to be patentable namely, that the inven
tion be novel and that it have practical utility. 35 USCA
101. See PATENT (3). [Cases: PatentsC=>37, 46.1
new asset. See ASSET.
new assignment. See ASSIGNMENT (7).
newborn-kidnapping by cesarean section. See kidnap
ping by cesarean under KIDNAPPING.
new business. See BUSINESS.
new-business rule. The principle precluding an award
ofdamages for lost profits to a business with no recent
record of profitability, because the damages would be
too speculative. [Cases: Damages (;::>40(1), 190.]
new cause ofaction. See CAUSE OF ACTION.
new-contract dispute. See major dispute under DIS
PUTE.
new court commitment. See COMMITMENT.
new debtor. See DEBTOR.
new-debtor syndrome. Conduct showing a debtor's
bad faith in filing for bankruptcy, as a result of which
the court may dismiss the bankruptcy petition . An
example is the debtor's formation of a corporation,
immediately before the bankruptcy filing, solely to take
advantage of the bankruptcy laws. [Cases: Bankruptcy
(;=>2252.1, 3503.J
new drug. See DRUG.
new-for-old. 1. Marine insurance. In adjusting a partial
marine-insurance loss, the principle that old materi
als apply toward payment of the new, so that the old
material's value is deducted from the total repair
expenses, and then from that balance one-third of the
cost of repairs (one-third of the new materials for the
old |
expenses, and then from that balance one-third of the
cost of repairs (one-third of the new materials for the
old on the balance) is deducted and charged against
the insured shipowner. -Also termed deduction for
new. [Cases: Insurance e::-~'2244.]2. The principle that
a party whose property has been damaged is entitled
to recover only the amount necessary to restore the
property to the condition it was in before the damage,
instead of acquiring a new item to replace one that was
old and depreciated. [Cases: Damages 103.]
New Inn. Hist. English law. One of the Inns ofChancery
(collegiate houses) in which law students were placed
before entering the Inns ofCourt . This practice con
tinued until approximately 1650, when the buildings
began to be used only by barristers and solicitors. See
INNS OF CHANCERY. Cf. INNS OF COURT.
new issue. See ISSUE (2).
new-loan fee. See MORTGAGE DISCOUNT. newly discovered evidence. See EVIDENCE.
new matter. 1. See MATTER. 2. Patents. Additional infor
mation in an amended patent application that adds to
the original disclosure . Since the new matter was
reduced to practice after the application was filed, it
cannot carry the same filing date. Rather, it must be
included in a continuation-in-part application. - Also
i termed disconformity. [Cases: Patents ~109.]
. new-matter rejection. See REJECTION.
i new promise. See PROMISE. . new-rnle principle. (1989) Criminal procedure. A
doctrine barring federal courts from granting habeas
corpus relief to a state prisoner because of a rule, not
! dictated by existing precedent, announced after the
prisoner's conviction and sentence became final.
Also termed nonretroactivity principle. See HABEAS
CORPUS. [Cases: Courts C=> 100(1).]
new ruling. (1931) Criminal procedure. A Supreme
Court ruling not dictated by precedent existing when
the defendant's conviction became final and thus not
applicable retroactively to habeas cases . For example,
when the Court in Ford v. Wainwright, 477 U.S. 399,
106 S.Ct. 2595 (1986), ruled that the Eighth Amend
ment prohibits execution of insane prisoners, this new
ruling was nonretroactive because it departed so widely
from prior doctrine. Teague v. Lane, 489 U.S. 288, 109
S.Ct. 1060 (1989). See HABEAS CORPUS. [Cases: Courts
(~.)100(1).1
New Rules. See HILARY RULES.
new series. See N.S.
newsman's privilege. See journalist's privilege (1) under
PRIVILEGE (3).
newspaper. (17c) A publication for general circulation,
usu. in sheet form, appearing at regular intervals, usu.
daily or weekly, and containing matters of general
public interest, such as current events.
daily newspaper. A newspaper customarily published
five to seven days every week. Often shortened to
daily.
legal newspaper. A newspaper containing matters of
legal interest including summaries of cases, legal
advertisements, legislative or regulatory changes,
and local bankruptcy notices. [Cases: Newspapers
newspaper ofgeneral circulation. (1838) A newspaper
that contains news and information ofinterest to the
general public, rather than to a particular segment,
and that is available to the public within a certain geo
graphic area. -Legal notices (such as a class-action
notice) are often reqUired by law to be published in
a newspaper of general circulation. [Cases: Newspa
pers (::::::>3(5).]
"The phrase 'newspaper of general circulation' is a term
of art in most states and does not necessarily mean the
newspaper best calculated to reach interested persons."
Ann Taylor Schwing, Open Meeting Laws 5.28, at 190-91
(2d ed. 2000).
official newspaper. A newspaper designated to contain nexi (nek-sI), n. pl. [Latin] Roman law. Debtors given in I
all the public notices, resolves, acts, and advertise
ments ofa state or municipal legislative body. [Cases:
Newspapers 1-7.]
newspaper prospectus. See PROSPECTUS.
new style. The modern system for ordering time accord
ing to the Gregorian method, introduced by Pope
Gregory XIII in 1582 and adopted in England and
the American colonies in 1752. Because the Julian
calendar year was slightly longer than the astronomi
cal year, the vernal equinox over time had been dis
placed by ten days. Pope Gregory reformed the calendar
by announcing that October 5, 1582 would be called
October 15. And, while generally retaining a leap year
for years divisible by 4, he skipped leap years in years
divisible by 100 (such as 1800 and 1900), but retained
leap years for years divisible by 400 (such as 2000).
Thus, the years 2000, 2004, 2008, etc. are leap years,
but 2100 is not. -Abbr. n.s. Also termed Gregorian
calendar. Cf. OLD STYLE.
new trial. See TRIAL.
new-use claim. See PATENT CLAIM.
new-use invention. See INVENTION.
new value. See VALUE (2).
new-value defense. See DEFENSE (1).
new works. See WORKS.
New York interest. See Boston interest under INTEREST
(3).
New York standard clause. See MORTGAGE-LOSS
CLAUSE.
New York Stock Exchange. An association of member
firms that handle the purchase and sale of securities
both for themselves and for customers . This exchange,
the dominant one in the United States, trades in only
large companies having at least one million outstand
ing shares. Abbr. NYSE. [Cases: Exchanges C-=:> 1-15;
Securities Regulation C=:40.l0-40.l6.j
New York Supplement. A set ofregional law books, part
of the West Group's National Reporter System, con
taining every published appellate decision from inter
mediate and lower courts of record in New York, from
1888 to date . The first series ran from 1888 to 1937;
the second series is the current one. -Abbr. N.Y.S.;
N'y.S.zd.
New York Times malice. See actual malice (2) under
MALICE.
New York Times rule. A commonsense rule of ethical
conduct holding that one should not do anything
arguably newsworthy -in public or in private that
one would mind having reported on the front page of
a major newspaper . In various communities, a local
newspaper is substituted for the Times. Also termed
New York Times test; New York Times v. Sullivan rule.
See actual malice (Z) under MALICE. bondage to creditors until their debts have been paid.
SeeNExuM.
next devisee. See DEVISEE.
next eventual estate. See ESTATE (1).
next friend. (l6c) A person who appears in a lawsuit to
act for the benefit ofan incompetent or minor plain
tiff, but who is not a party to the lawsuit and is not
appointed as a guardian. -Also termed prochein ami.
Cf. guardian ad litem under GUARDIAN. [Cases: Infants
C=>76; Mental Health C=485.J
next-in, first-out. A method of inventory valuation (but
not a generally accepted accounting principle) whereby
the cost of goods is based on their replacement cost
rather than their actual cost. -Abbr. NIFO. Cf. FIRST
IN, FIRST-OUT; LAST-IN, FIRST-OUT.
next of kin. (18c) 1. The person or persons most closely
related to a decedent by blood or affinity. Cf. RELATIVE.
[Cases: Descent and Distribution C=)ZO-43; Wills C=>
508.] 2. An intestate's heirs -that is, the person or
persons entitled to inherit personal property from a
decedent who has not left a wilL See HEIR.
next presentation. See PRESENTATION.
nexum (nek-sam), n. [Latin] Roman law. A transaction or
practice ofearly Roman law under which a debtor, upon
a failure to repay the debt, could be seized and held in
bondage until the debt was repaid . This practice was
allowed in very early Roman law.
"Nexum. This highly controversial matter will be briefly
dealt with as nexum had long been obsolete in classical
law. Little is really known of it: it has been doubted whether
there ever was such an institution. No text tells us that
there was a contract called nexum .... But we have texts
which speak of nexum as creative of obligation ... and
many literary texts dealing with debtors who were nexi,
so that it may be taken as certain that there was such a
transaction ... which in some way reduced debtors to a
sort of slavery, that great hardships resulted and that a I.
Poetelia . .. practically ended this state of things, presum
ably by requiring an actual judgment before seizure. The
effect was not to abolish nexum, but, by depriving it of
its chief value, the power of seizure ... to leave it with
no advantages to counterbalance its clumsiness, so that
it went out of use." W.W. Buckland, A TextBook of Roman
Law from Augustus to Justinian 429-30 (Peter Stein ed.,
3d ed. 1963).
nexus, n. (l7c) 1. A connection or link, often a causal
one <cigarette packages must inform consumers ofthe
nexus between smoking and lung cancer>. PI. nexuses;
nexus. 2. Roman law. (ital.) In very early times, a debtor
given in bondage to creditors until the debts have been
paid. PI. nexi. See NEXUM.
nexus rea lis (nek-sas ree-ay-lis). [Latin "a real fetter")
Scots law. An encumbrance to property, such as a ser
vitude.
nexus test. (1975) The standard by which a private
person's act is considered state action -and may give
rise to liability for Violating someone's constitutional
rights if the conduct is so closely related to the gov
ernment's conduct that the choice to undertake it may
fairly be said to be that ofthe state . While similar to
1143
the symbiotic-relationship test, the nexus test focuses
on the particular act complained of, instead of on the
overall relationship of the parties. Still, some courts
use the terms and analyses interchangeably. -Also
termed close-nexus test. Cf. SYMBIOTIC-RELATIONSHIP
TEST. See JOINT PARTICIPATION; STATE-COMPULSION
TEST. [Cases: Civil Rights C= 1326(4, 7).]
"The complaining party must ... show that there is a suf
ficiently close nexus between the State and the chal
lenged action ofthe regulated entity so that the action
of the latter may be fairly treated as that of the State
itself. lhe purpose ofthis requirement is to assure that
constitutional standards are invoked only when it can be
said that the State is responsible for the specific conduct
ofwhich the plaintiff complains .... [O]ur precedents
indicate that a State normally can be held responsible
for a private decision only when it has exercised coercive
power or has provided such significant encouragement,
either overt or covert, that the choice must in law be
deemed to be that of the State." Blum v. Yaretsky, 457
U.S. 991, 1004, 102 S.Ct. 2777, 2786 (1982).
NGO. abbr. NONGOVERNMENTAL ORGANIZATION.
NGRI. See not guilty by reason of insanity under NOT
GUILTY.
NHTSA. abbr. NATIONAL HIGHWAY TRAFFIC SAFETY
ADMINISTRATION.
niehil (nieh-dl), n. [Old French nichil fr. Latin nihil
"nothing"] Hist. English law. A debt owed to the Exche
quer's office but nihiled by sheriffs as nonleviable .
Once a year, an officer ofthe Clerk ofNichils enrolled
these amounts and sent them to the treasurer's remem
brancer's office from which process was issued for their
recovery. Both offices were abolished in 1833. -Also
spelled nichill; nichel.
nichil, vb. (Of a sheriff) to make return that a debt is
worthless, because the debtor either cannot be found
or is unable to pay.
Nickerson letter. In New York City, a document issued
by the Board of Education offering to pay the tuition
of a disabled child who has been admitted to a state
approved private school and whose educational needs
cannot be met in a public school. Nickerson letters
are named for Judge Eugene P. Nickerson, who presided
over the class-action suit that led to their creation. See
Jose P. v. Ambach, 669 F.2d 865 (2d Cir. 1982); see also
Jose P. v. Ambach, 557 F. Supp. 1230 (E.D.N.Y. 1983).
[Cases: Schools 148(2.1), 155.5(1).]
nickname, n. (15c) 1. A shortened version of a person's
name <"Bill" is William's nickname>. [Cases: Names
2. A descriptive or alternative name, in addition
to or instead of the actual name <David Smith's
nickname is "Red">.
niece. (14c) The daughter ofa person's brother or sister;
sometimes understood to include the daughter of a
person's brother-in-law or sister-in-law . This term
is extended in some wills to include a grandniece. Cf.
NEPHEW. nihil
halfniece. The daughter of one's half brother or half
|
. Cf.
NEPHEW. nihil
halfniece. The daughter of one's half brother or half
sister.
NIED. abbr. KEGLIGENT INFLlCTIOK OF EMOTIONAL
DISTRESS.
nient (nee-ent). [Law French] Not; nothing.
nient culpable (nee-ent bl-pd-bdl), n. [Law French]
Hist. A general plea of"not guilty" in a tort or criminal
action.
'When the prisoner hath thus pleaded not gUilty, non cui
pabilis, or nient culpable; which was formerly used to be
abbreviated upon the minutes, thus, 'non (or nient) cui.'
the clerk of the assise, or clerk of the arraigns, on behalf
of the crown replies, that the prisoner is guilty, and that
he is ready to prove him so." 4 William Blackstone, Com
mentaries on the Laws ofEngland 333 (l769).
nient dedire (nee-ent dd-deer), vb. [Law French] Hist. To
deny nothing; to be subject to a default judgment.
nient Ie fait (nee-ent Id fay). [Law French] Hist. Not the
deed. This term was the earlier version of non est
factum. See NON EST FACTUM.
nient seisi (nee-ent see-zee), n. [Law French "not
seised"] Hist. The general denial in a writ to recover
an annuity.
NIFL. abbr. NATIONAL INSTI1TTE FOR LITERACY.
NIFO (m-foh). abbr. NEXTIN, FIRST-OUT.
night. (bef. 12c) 1. The time from sunset to sunrise. 2.
Darkness; the time when a person's face is not discern
ible. This definition was used in the common-law
definition ofcertain offenses, such as burglary.lCases:
Burglary
''The definition of a burglar, as given by Sir Edward Coke,
is, 'he that by night breaketh and entereth into a mansion
house, with intent to commit a felony.' ... The time must
be by night, and not by day; for in the daytime there is no
burglary .... As to what is reckoned night, and what day,
for this purpose anciently the day was accounted to begin
only at sunrising, and to end immediately upon sunset; but
the better opinion seems to be, that if there be daylight ...
enough, begun or left, to discern a man's face withal, it is
no burglary. But this does not extend to moonlight; for
then many midnight burglaries would go unpunished: and
besides, the malignity of the offence does not so properly
arise from its being done in the dark, as at the dead of
night when all the creation, except beasts of prey, are at
rest; when sleep has disarmed the owner, and rendered his
castle defenceless." 4 William Blackstone, Commentaries
on the Laws of England 224 (1769).
3. Thirty minutes after sunset and thirty minutes before
sunrise, or a similar definition as set forth by statute, as
in a statute requiring specific authorization for night
searches. 4. Evening. -Also termed nighttime. Cf.
DAY.
nightwalker. 1. Hist. A person who suspiciously wanders
about at night and who might disturb the peace.
Nightwalking was an example of a "common" offense
requiring no specific facts to be asserted in the indict
ment. 2. A prostitute who walks the streets at night;
streetwalker. [Cases: Prostitution C~~10.] 3. A sleep
walker.
nihil. See NIHIL EST.
1144 nihil capiat per breve
nihil capiat per breve (m-hil kap-ee-;lt p;lr bree-vee or
breev), n. [Latin "Let him take nothing by his writ"] A
judgment against the plaintiff in an action at bar or in
abatement. Also termed nihil capiat per billam ("let
him take nothing by his bill").
nihil dicit (m-hil dI-sit), n. [Latin "he says nothing"] 1.
The failure ofa defendant to answer a lawsuit. [Cases:
Judgment C=:> 106.] 2. See nil dicit default judgment
under DEFAULT JUDGMENT.
nihil dicit default judgment. See nil dicit default
judgment under DEFAULT JUDGMENT.
nihil est (m-hil est). [Latin "there is nothing"] A form of
return by a sheriff or constable who was unable to serve
a writ because nothing was found to levy on. Often
shortened to nihil. Cf. NULLA BONA.
nihil habet (m-hil hay-b<Jt). [Latin "he has nothing"] A
form of return by a sheriff or constable who was unable
to serve a scire facias or other writ on the defendant.
See SCIRE FACIAS.
nihilism (m-;ll-iz-;}m or nee-). (1812) 1. A doctrine
maintaining that there is no rational justification for
moral principles and that there is no objective truth.
2. The view that traditional beliefs are unfounded and
that life is meaningless and useless. 3. A theory that
the existing economic, social, or political institutions
should be destroyed, regardless of the result, because
of the basic undesirabilitv of those institutions . This
theory, featured by Ivan' Turgenev in his 1861 novel
Fathers and Sons, was popular among Russian extrem
ists until the collapse ofthe czarist government.
nihilist, n. A person who advocates nihilism. See
NIHILISM.
nihil novit (m-hil noh-vit). [Law Latin] Scots law. He
knew nothing . The phrase appeared in reference to a
defendant's oath denying any knowledge ofthe matter
in issue.
"[AJ defender may swear that he knows nothing of the
matter referred, and so obtain absolvitor; but such an
answer would not avail any defender in regard to a factum
proprium. In regard to such a matter, an answer of nihil
novitwould, in the general case, be regarded as simply an
evasion, and be treated as an admission of the debt." John
Trayner, Trayner's Latin Maxims 387 (4th ed. 1894).
nikah. Islamic law. A prenuptial contract, witnessed by
at least two men, recording the parties' mutual agree
ment to marry, the husband's promise to give his wife
a certain sum ofmoney or property, and pOSSibly other
terms about the parties' rights in and expectations from
the marriage . The contract may be enforceable under
general contract-law principles. Also termed nikah
nama. Cf. MAHR.
nil (nil). [Latin] (16c) Nothing . This word is a con
tracted form ofnihil. See NIHIL EST.
nil debet (nil deh-;}t). [Latin "he owes nothing"] Hist. A
general denial in a debt action on a simple contract.
"The proper general issue in debt on simple contracts
and statutes is 'nil debet,' which is a formal denial of the
debt. It denies not only the existence of any contract, but
under it any matters in excuse or in discharge may also be shown." Benjamin J. Shipman, Handbook ofCommon Law
Pleading 184, at 327 (Henry Winthrop Ballantine ed., 3d
ed. 1923).
nil dicit default judgment. See DEFAULT JUDGMENT,
nil habuit in tenementis (nil hab-yoo-it in ten-<l-men
tis), n. [Law Latin "he has nothing in the tenements"]
Hist. In an action to recover rent on a lease, the defen
dant's plea that the landlord has no title or interest in
the property at issue.
nilligatum (nilii-gay-t;}m). [Latin "nothing is bound"]
No obligation has been incurred.
NIMA. abbr. NATIONAL IMAGING AND MAPPING
AGENCY.
nimble dividend. See DIVIDEND.
nimmer. (14c) A petty thief; pilferer; pickpocket.
1908 Berlin Act. See BERLIN ACT.
1909 Copyright Act. See COPYRIGHT ACT OF 1909.
1971 Paris Act of the Berne Convention, See BERNE
PARIS ACT.
1976 Copyright Act. See COPYRIGHT ACT OF 1976.
Nineteenth Amendment. lhe constitutional amend
ment, ratified in 1920, providing that a citizen's right to
vote cannot be denied or abridged by the United States,
or by any state within it, on the basis of sex. Also
termed Women's Suffrage Amendment. [Cases: Elec
tions'~13.]
1933 Act. See SECURITIES ACT OF 1933.
1934 Act. See SECURITIES EXCHANGE ACT OF 1934.
ninety-day letter. (1933) Statutory notice of a tax defi
ciency sent by the IRS to a taxpayer . During the 90
days after receiving the notice, the taxpayer must pay
the taxes (and, if desired, seek a refund) or challenge
the defiCiency in tax court. IRC (26 USCA) 6212,
6213. -Also written 90-day letter. Also termed
notice ofdeficiency; deficiency notice; tax-deficiency
notice. Cf. THIRTY-DAY LETTER. [Cases: Internal
Revenue C=:>'4542.j
NINJA loan. See LOAN.
Ninth Amendment. The constitutional amendment,
ratified with the Bill of Rights in 1791, providing that
rights listed in the Constitution must not be construed
in a way that denies or disparages unlisted rights, which
are retained by the people. [Cases: Constitutional Law
C=:>1070.]
nisi (nI-sI), ad). [Latin "unless"] (18c) (Of a court's ex
parte ruling or grant of relief) haVing validity unless
the adversely affected party appears and shows cause
why it should be withdrawn <a decree nisi>. See decree
nisi under DECREE. [Cases: Motions
nisi aliud convenerit (m-sl ay-Iee-<ld k;ln-ven-;}r-it).
[Latin] Hist. Unless it has been otherwise agreed; unless
something else has been agreed to.
nisi decree. See decree nisi under DECREE.
nisi feceris (m-sl fee-sCl-ris), n. [Law Latin "unless
you have done so"] Hist. A clause in a manorial writ
providing that the king's court or officer will do justice
ifthe lords fail. This provision allowed royal courts to
usurp the jurisdiction of manorial courts.
nisi malitia suppleat aetatem (m-51 m<)-lish-ee-<} S<Jp
lee-at ee-tay-t<}m). [Latin] Roman & Scots law. Unless
malice supplies want ofage. A child under the age of
puberty was presumed to lack the necessary intent to
commit a crime unless an evil intent was specifically
shown.
nisi prius (m-sl PrI-<}s). [Latin "unless before then"] (16c)
A civil trial court in which, unlike in an appellate court,
issues are tried before a jury. The term is obsolete in
the United States except in New York and Oklahoma.
Abbr. n.p. Also termed nisi prius court.
nisi prius clause. An entry to the record authorizing a
jury trial in the designated county. See NISI PRIUS.
nisi prius court. See NISI PRIUS.
nisi prius record. A civil-trial record. See RECORD (4).
nisi prius roll. The transcript of a case at nisi prius.
Also termed nisi prius record.
NIST. abbr. National Institute ofStandards and Technol
ogy. See TECHNOLOGY ADMINISTRATION.
nitroglycerine charge. See ALLEN CHARGE.
nixie. [fr. German nichts "nothing"] 1. A piece of mail
that cannot be delivered, usu. because the addressee is
fictitious or the address is incorrect. 2. Hist. An unde
liverable piece ofmail created by a postal inspector for
the purpose of discovering interference with mail pro
cessing and delivery. Also termed nix; nixey.
n.l. abbr. NON LIQUET.
NLRA. abbr. NATIONAL LABOR RELATIONS ACT.
NLRB. abbr. NATIONAL LABOR RELATIONS BOARD.
NMB. abbr. NATIONAL MEDIATION BOARD.
NMFS. abbr. NATIONAL MARINE FISHERIES SERVICE.
NMI. abbr. No middle initiaL
NMN. abbr. No middle name.
NOA. abbr. Slang. 1. No oral argument . This notation
is used esp. in an appellate case in which oral argument
is not granted <since the case was NOA, the court relied
exclusively on the briefs>. 2. See NOTICE OF APPEAR
ANCE.
NOAA. abbr. NATIO:NAL OCEANIC AND ATMOSPHERIC
ADMINISTRATION.
no-action clause. An insurance-policy provision that
bars suit against the insurer until the liability of the
insured has been determined by a judgment. [Cases:
Insurance C-~3549(4).]
no-action letter. (1959) A letter from the staff of a gov
ernmental agency stating that ifthe facts are as repre
sented in a person's request for an agency ruling, the
staff will advise the agency not to take action against
the person . Typically, a no-action letter is requested
from the SEC on such matters as shareholder proposals, resales ofstock, and marketing techniques. [Cases:
Securities Regulation C=>81.]
no actus reus (noh ak-t<}s ree-<}s). A plea in which a
criminal defendant either denies involvement with a
crime or asserts that the harm suffered is too remote
from the criminal act to be imputable to the defen
dant.
no-answer default judgment. See DEFAULT JUDGMENT.
no arrival, no sale. A delivery |
the defen
dant.
no-answer default judgment. See DEFAULT JUDGMENT.
no arrival, no sale. A delivery term, included in some
sales contracts, by which the seller assumes the duty to
deliver the goods to a specifIed place, and assumes the
risk ofloss for the goods while they are in transit. If
the goods arrive damaged or late, the buyer can either
avoid the contract or accept the goods at a discount.
[Cases: Sales C=>201(2).)
no award. In an action to enforce an award, the defen
dant's plea denying that an award was made.
nobile officium (noh-b<}-lee a-fish-ee-am), n. [Latin
"noble office or privilege"] Scots law. The power of a
superior court, the Court of Session, or the High Court
to give equitable relief when none is possible under
law.
nobility, n. pl. (14c) 1. Persons ofsocial or political pre
eminence, usu. derived by inheritance or from the sov
ereign . In English law, there are various degrees of
nobility, or peerage, such as dukes, marquises, earls,
viscounts, and barons, and their female counterparts.
Nobility is generally created either by a writ ofsummons
to sit in Parliament or by a royal grant through letters
patent, and was once usu. accompanied by a large land
grant. Nobility by writ descended to a person's bodily
heirs. The modern practice is to grant nobility by letters
patent, which provide limitations as to future heirs. The
U.S. Constitution prohibits granting a title ofnobility.
U.S. Const. art. I, 9, cl. 8.
"In England nobility is apt to be confounded with the
peculiar institution of the British peerage. Yet nobility, in
some shape or another, has existed in most places and
times or the world's history, while the British peerage is
an institution purely local, and one which has actually
hindered the existence of a nobility in the sense which the
word bears in most other countries ..... Nobility, then,
in the strict sense of the word, is the hereditary handing
on from generation to generation of some acknowledged
pre-eminence, a pre-eminence founded on hereditary suc
cession, and on nothing else, .... The pre-eminence so
handed on may be of any kind, from substantial political
power to mere social respect and precedence." 17 Encyclo
paedia Britannica 538 (9th ed. 1907).
2. Persons ofhigh or noble character. 3. Ihe collective
body of persons making up the noble class.
no bill, n. (18c) A grand jury's notation that insuffi
cient evidence exists for an indictment on a criminal
charge <the grand jury returned a no bill instead ofthe
indictment the prosecutors expected>. <the grand jury
no-billed three of the charges>. Cf. TRUE BILL. [Cases:
Grand Jury C=>42.) -no-bill, vb.
no-bonus clause. Landlord-tenant law. A lease provi
sion that takes effect upon governmental condemna
tion, limiting the lessee's damages to the value of any
improvements to the property and preventing the lessee
from recovering the difference between the lease's fixed
rent and the property's market rental value. See CON
DEMNATION. [Cases: Eminent Domain 147.]
no cause of action. See take-nothing judgment under
JUDGMENT.
nocent (noh-s;mt), adj. Ifr. Latin nocere "harm"] Archaic.
1. Injurious; harmful. 2. Guilty; criminal. -This word
is the little-used antonym ofinnocent.
nocent (noh-s;mt), n. [fro Latin nocere "harm"] Hist. A
person who is guilty.
no-claim, n. The lack of a claim. _ Legal philosophers
devised this term to denote the opposite of a claim. As
one jurisprudent has said apologetically, "there is no
word in English which expresses the lack of a claim
and therefore the rather barbarous 'no-claim' has been
suggested." George Whitecross Paton, A Textbook of
Jurisprudence 291 (GW. Paton &David P. Derham eds.,
4th ed. 1972).
no-confidence vote. (1840) The formal legal method by
which a legislative body, by a majority vote, forces the
resignation of a cabinet or ministry. -Also termed
vote ofno confidence.
no-contact order. See STAY-AWAY ORDER.
no contest. (1931) A criminal defendant's plea that, while
not admitting guilt, the defendant will not dispute the
charge. -This plea is often preferable to a guilty plea,
which can be used against the defendant in a later civil
lawsuit. -Also termed no-contest plea; nolo conten
dere; non vult contendere. [Cases: Criminal Law Cr~
275.]
no-contest clause. (1929) A provision designed to
threaten one into action or inaction; esp., a testamen
tary provision that threatens to dispossess any ben
eficiary who challenges the terms of the will. Also
termed in terrorem clause; nonconiest clause; terrorem
clause; anticontest clause;forfeiture clause. [Cases: Wills
656.]
noctanter (nok-tan-tJr), n. [Latin "by night"] Hist. A
chancery writ issued to a sheriff as a first step in the
recovery ofdamages for destroying a ditch or hedge.
The neighboring villagers (vilIs) were held liable for the
damages unless they indicted the offender.
noctem defirma (nok-tJm dee f .. r-m;), n. [Law Latin
"night of duty (payable)"] Hist. The duty or custom of
providing entertainment or provisions for a night. -At
the time ofthe Norman Conquest, this was the duty or
custom of entertaining the king for one night. Also
termed noctes;firma noctis.
nocumentum (nok-YJ-men-tJm). [fro Latin nocere "to
harm"] Hist. A nuisance. -There was no remedy at law
for a nuisance causing only property damage, but there
was a remedy for a nuisance causing injury.
no cure, no pay. Maritime law. The common-law prin
ciple that compensation for salvage must come from the
material salvaged, and that if no material is salvaged
there can be no compensation. -By contrast, civil-law tradition awards compensation even for a failed effort.
Cf. ASSISTANCE. [Cases: Salvage e:-~)36.]
no-doc loan. See LOAN.
no-duty, n. Liberty not to do an act. Also termed
liberty not.
no-duty doctrine. (1966) Torts. l. The rule that a defen
dant who owes no duty to the plaintiff is not liable for
the plaintiff's injury. 2. The rule that the owner or pos
sessor ofproperty has no duty to warn or protect an
invitee from known or obvious hazards. [Cases: Neg
ligence 1037(4).]
Noerr-Pennington doctrine. (1967) The principle that
the First Amendment shields from liability (esp. under
antitrust laws) companies that join together to lobby
the government. -'Ihe doctrine derives from a line
of Supreme Court cases beginning with Eastern R.R.
Presidents Conference v. Noerr Motor Freight, Inc., 365
U.S. 127,81 S.Ct. 523 (1961), and United Mine Workers
v. Pennington, 381 U.S. 657, 85 S.Ct. 1585 (1965). [Cases:
Antitrust and Trade Regulation (;=;905; Civil Rights
1374; Constitutional Law (;=> 1437.]
no evidence. (15c) 1. 'Ihe lack of a legally sufficient evi
dentiary basis for a reasonable fact-finder to rule in
favor ofthe party who bears the burden ofproof <there
is no evidence in the record about his whereabouts at
midnight>. _ Under the Federal Rules of Civil Proce
dure, a party can move for judgment as a matter oflaw
to claim that the other party -who bears the burden
ofproof -has been fully heard and has not offered suf
ficient evidence to prove one or more essential elements
ofthe suit or defense. Fed. R. Civ. P. 50. Though such a
contention is usu. referred to as a no-evidence motion,
the issue is not whether there was actually no evidence,
but rather whether the evidence was sufficient for the
fact-finder to be able to reasonably rule in favor of the
other party. [Cases: Evidence (:=>597; Federal Civil
Procedure (;='2142.1.]
"Since judgment as a matter of law deprives the party
opposing the motion of a determination of the facts by a
jury, it should be granted cautiously and sparingly. Never
theless. the federal courts do not follow the rule that a scin
tilla of evidence is enough to create an issue for the jury.
The question is not whether there is literally no evidence
upon which the jury properly could find a verdict for that
party." 9A Charles Alan Wright & Arthur Miller, Federal
Practice and Procedure 2524, at 252-54 (2d ed. 1995).
2. Evidence that has no value in an attempt to prove
a matter in issue <that testimony is no evidence ofan
alibi>.
no-eyewitness rule. (1956) Torts. The largely defunct
principle that if no direct evidence shows what a dead
person did to avoid an accident, the jury may infer
that the person acted with ordinary care for his or her
own safety. -In a jurisdiction where the rule persists,
a plaintiff in a survival or wrongful-death action can
assert the rule to counter a defense of contributory neg
ligence. [Cases: Death ~58(1).]
no-fault, adj. (1967) Of or relating to a claim that is
adjudicated without any determination that a party is
1147 nomen transcripticium
blameworthy <no-fault divorce>. [Cases: Divorce
12.]
no-fault auto insurance. See INSURANCE.
no-fault divorce. See DIVORCE.
no funds. An indorsement marked on a check when
there are insufficient funds in the account to cover the
check.
no-further-representation clause. A contractual provi
sion, usu. in a settlement agreement, prohibiting the
plaintiff's attorney from representing future clients
who have the same or a similar claim against the defen
dant. _ Such a clause is thought to be void as against
public policy.
"If your standard settlement papers include a clause pro
hibiting opposing counsel from representing future clients
with the same claim, you're violating ethics rules. Typically
a defendant's tool, this provision ~known as a nofurther
representation clause ~is popular in class action and mass
productliability settlements. But a littleknown ethics rule
prohibits lawyers from agreeing, or even offering to agree,
to a restriction on an attorney's right to practice law." Leslie
A. Gordon, Prohibited Provisions: NofurtherRepresentation
Clauses May Be Advantageous, but They're Also Unethical,
91 ABAJ. 18, 18 (Apr. 2005).
no goods. See NULLA BONA.
NOIBN. abbr. NOT OTHERWISE INDEXED BY NAME.
no-knock search. See SEARCH.
no-knock search warrant. See SEARCH WARRANT.
NOL. See net operating loss under LOSS.
Nolan Act. Hist. Patents. A statute, passed after World
War I, that extended the U.S. patenting deadlines for
citizens offormer enemy nations. - A similar measure,
the Boykin Act, was passed after World War II.
nolens volens (noh-Ienz voh-lenz), adv. & adj. [Latin]
(16c) Willing or unwilling <nolens volens, the school
district must comply with the court's injunction>.
no-limit order. See ORDER (8).
nolissement (nd-lis-mahn), n. [French] French law. The
chartering of a ship; AFFREIGHTMENT.
nolition (noh-lish-dn). (17c) 1he absence of volition;
unwillingness.
nolle prosequi (nahl-ee prahs-d-kwI), n. [Latin "not to
wish to prosecute"] (17c) 1. A legal notice that a lawsuit
or prosecution has been abandoned. [Cases: Pretrial
Procedure C=>511.] 2. A docket entry showing that
the plaintiff or the prosecution has abandoned the
action. -Often shortened to nolle. [Cases: Criminal
Law C=>303.5-303.35.]
"In America the term [nolle prosequi] bears the same
meaning as in England, with one exception. The attorney
general has not the same discretion with which English
law invests him. Although in some States the prosecuting
officer may enter a nolle prosequi at his discretion, in others
the leave of the court must be obtained." 17 Encyclopaedia
Britannica 546 (9th ed. 1907).
"Nolle prosequi is a formal entry on the record by the
prosecuting officer by which he declares that he will not
prosecute the case further, either as to some of the counts
of the indictment, or as to part of a divisible count, or as to some of the persons accused. or altogether. It is a
judicial determination in favor of accused and against his
conViction, but it is not an acquittal, nor is it equivalent to
a pardon." 22A c.J.S. Criminal Law 419, at 1 (1989).
nolle prosequi (nahl-ee prahs-a-kwI), vb. (1875) To
abandon (a suit or prosecution); to have (a case) dis
missed by a nolle prosequi <the state nolle prosequied
the charges against Johnson>. Often shortened to
nolle pros; nol-pros; nol-pro. [Cases: Criminal Law C=>
3 |
ened to
nolle pros; nol-pros; nol-pro. [Cases: Criminal Law C=>
303.5-303.35; Pretrial Procedure C=>50l.l
no-load fund. See MUTUAL FUND.
nolo contendere (noh-loh kan-ten-dd-ree). [Latin "1 do
not wish to contend"] (1829) NO CONTEST. -Often
shortened to nolo. [Cases: Criminal Law
nolo plea, See PLEA (1).
no man's land. Labor law. The lack of clear jurisdiction
between a state government and the federal govern
ment over labor disputes. -This term was common
in the 1950s, but its use has declined as later laws have
clarified jurisdictional issues.
NOM clause. abbr. NO-ORAL-MODIFICATION CLAUSE.
nomen (noh-men or -m,m), n. [Latin]l. Roman law. A
personal name. _ A Roman citizen generally had three
names: a praenomen ("first name"), a nomen ("the name
ofthe family group"), and cognomen ("a surname"). 2.
Hist. A person's first name. 3. More broadly, any name.
P!. nomina. See AGNOMEN.
nomen collectivum (noh-men kol-"k-tl-vam). [Latin] A
collective name; a name of a class of things.
nomen generale (noh-men jen-a-ray-lee). [Latinl A
general name; a genus.
nomen generalissimum (noh-men jen-a-r"-lis-i-m,,m).
[Law Latin] A name with the most general meaning.
"Nomen generalissimum. A very general name: a compre'
hensive term. Such are the terms crime, demand, draft,
estate, goods, grant, heir, house, instrument, interest, land.
merchandise, obligation, offense." William C. Anderson, A
Dictionary of Law 711 (1889).
nomen juris (noh-men joor-is). [Latin] A legal name
or designation.
nomen universitatis (noh-men yoo-ni-v"r-s,,-tay-tis).
[Latin] Hist. The name of the whole together.
'Thus the name Barony is, in our law, a nomen universitatis,
for it includes not only the lands over which the rights of
barony extend, but also the rights competent to the owner
of the barony themselves." John Trayner, Travner's Latin
Maxims 390 (4th ed. 1894).
nomen transcripticium (noh-men tran-skrip-tish
ee-am). [Latin "entry (in an account) transferred"]
Roman law. A creditor's entry of a money debt into
a new account (expensilatio) after closing another
account, thereby creating, with the debtor's permission,
a literal contract from an existing obligation, which
mayor may not have been enforceable. PI. nomina
transcripticia.
'The subject will, perhaps, become clearer by examples: ...
A has in the past had dealings by way of sale, exchange,
etc., with B, of which an account appears in his codex
showing a balance against B for 500 aurei. A, with B's
1148 no-merit brief
consent, closes this account by a statement on the opposite
page (contrary to fact) that B has paid the aurei ... and
opens a new account with the statement (contrary to strict
fact) that he has advanced to B the sum of 500 aurei. Hence
the expensi!atio represents a nomen transcripticium; a
nomen (debt) has been transferred from one account to
another .... In effect the old contracts between A and B
have been novated, i.e. extinguished, one single obligation
having been substituted in their place; obViously a course
which offered many advantages to both parties, as it sim
plified the accounts, and saved disputes about the previous
transactions." R.W. Leage, Roman Private Law 317-18 (CH.
Zieglered., 2d ed. 1930).
no-merit brief. See Anders brief under BR I EF.
nomina debitorum (nahm-;:l-n;:l deb-i-tor-;:lm). [Latin
"entries (in a ledger) ofnames of debtors"] Roman law.
Records of debt See NOMEN TRANSCRIPTICIUM.
nominal (nahm-<l-n<ll), adj, (l7c) 1. Existing in name only
<he was the nominal leader but had no real authority>.
2. (Of a price or amount) trifling, esp, as compared to
what would be expected <the lamp sold for a nominal
price of ten cents>. 3. Of or relating to a name or term
<a nominal definition>, nominally, adv,
nominal account. See ACCOUNT.
nominal asset. See ASSET,
nominal capital. See CAPITAL.
nominal consideration. See CONSIDERATION (1).
nominal damages. See DAMAGES,
nominal defendant. See nominal party under PARTY
(2).
nominal director. See dummy director under DIRECTOR.
nominal partner. See PARTNER.
nominal party. See PARTY (2).
nominal-payee rule. Commercial law. The rule that vali
dates any person's indorsement of an instrument (such
as a check) when the instrument's drawer intended for
the payee to have no interest in the instrument. UCC
3-404(b). [Cases: Banks and Banking 147, 174;
Bills and Notes 182,279.]
nominal plaintiff. See nominal party under PARTY (2).
nominal rate. See INTEREST RATE.
nominal sentence. See SENTENCE.
nominal trust. See passive trust under TRUST.
nominal value. See PAR VALUE.
nominal yield. See coupon yield under YIELD.
nominandus (nahm-;l-nan-d;:ls). [Latin] Scots law. To be
named. eThe phrase usu. referred to an heir whom the
entailer had the right to name ifthat right was reserved
in the deed of entail. See ENTAIL.
nominate (nom-;l-n;:lt), adj. Civil law. Classified; having
a special name or designation. See nominate contract
under CONTRACT.
nominate, vb. (16c) 1. To propose (a person) for election
or appointment <Steven nominated Jane for president>.
[Cases: Elections 122-147; Officers and Public
Employees ~~8.] 2. To name or deSignate (a person) for a position <the testator nominated an executor, who
later withdrew because he couldn't perform his duties>.
[Cases: Executors and Administrators 17(7).]
nominate action. See ACTION (4).
nominate contract. See CONTRACT.
nominatim (nah-mi-nay-tam), adv. [fro Latin nomen
"name"] Roman law. By name . This term refers to
mentioning someone or something expressly by name
or by specific description, so that (for example) to dis
inherit persons nominatim means that there is no doubt
who is meant to be excluded.
nominating and reducing. Hist. A method used, esp. in
London, to obtain special jurors from which to select a
jury panel. Under this method, a number represent
ing each person on a sheriff's list is drawn from a box
until 48 unchallenged people have been nominated.
Each party then strikes 12 people and the remaining
24 constitute the panel.
nominating committee. See COMMITTEE.
nominatio auctoris (nah-mi-nay-shee-oh awk-tor-is).
[Latin "naming of the originator (or seller),,] 1. In an
action for the recovery ofsomething, such as real estate,
the defendant's plea that the property is actually owned
by another party . 'Ihe true owner is then required to
defend the action. 2. Roman law. In an action alleging
ownership of an item, the defendant's plea naming
the seller, who then must assist in the defense of the
action against the plaintiff. Also termed laudare
auctorem.
nomination.(ISc) 1. The act of proposing a person for
election or appointment. [Cases: Elections (;:=> 122
140.J 2. The act of naming or designating a person for
an office, membership, award, or like title or status. e
Under parliamentary law, each nomination is effec
tively a proposal for filling the blank in the question,
"Resolved, That ---is elected." See BLANK (2). See
CLOSE NOMINATIONS; OPEN NOMINATIONS.
nomination paper. (usu. pl.) A document filed by an
independent political group -usu. one not qualifying
as a politicaJ party or able to hold primary elections
to place one or more nominees on a general-election
ballot. [Cases: Elections
nomination to a living. Eccles. law. The right of an
advowson owner to present a clerk to the bishop for
induction to a benefice. e lhe owner ofan advowson
can grant the right to another but is then bound to
present whomever the grantee chooses.
nominativus pendens (nahm-d-n;:l-tI-V;:lS pen-denz), n.
[Latin "nominative hanging"] In a sentence, a nomina
tive phrase that is not grammatically connected with
the rest of the sentence. Also termed nominative
absolute.
"Nominativus pendens .... The opening words in the form
of a deed inter partes ('This deed,' etc., down to 'whereas'),
though an intelligible and convenient part of the deed,
having regard to the predicate 'witnesseth' or 'nor this
deed witnesseth: are sometimes of this kind." William A.
Jowitt, The Dictionary of English Law 1230 (1959).
nomina villarum (nahm-.:>-n.:> vi-Iair-.:>m), n. [Latin ! nomographer (n<l-mog-rd-f';}r). (17c) l. A person who
"names of the villages"] Hist. In the reign of Edward
II, a list compiled by sheriffs of the names ofthe villages
and possessors in their respective counties.
nomine (nahm-.:>-nee), adv. [fro Latin nomen "name"]
Roman law. 1. By name; under the name of, as in sine
nomine edere librum ("to publish [a book] anony
mously"). 2. On behalf of, as in proprio (mo) nomine
("on one's own behalf").
nomine albae firmae (nahm-d-nee ai-bee fOlr-mee), adv.
[Law Latin] Scots law. In name of blench farm . The
phrase appeared in reference to one of the tenures by
which lands were held for only a nominal sum (such as
a penny) from the superior.
nomine damni (nahm-d-nee dam-nIl, adv. [Latin] Scots
law. By way ofdamage. A person was requi red to pay
interest nomine damni.
nomine dotis (nahm-<l-nee doh-tis), adv. [Latin] Scots
law. By way ofdowry.
nominee (nom-i-nee), n. (17c) 1. A person who is
proposed for an office, membership, award, or like
title or status. An individual seeking nomination,
election, or appointment is a candidate. A candidate
for election becomes a nominee after being formally
nominated. See CANDIDATE. 2. A person designated
to act in place of another, usu. in a very limited way.
3. A party who holds bare legal title for the benefit of
others or who receives and distributes funds for the
benefit of others.
nominee account. See ACCOUNT.
nominee trust. See TRUST.
nomine feudifirmae (nahm-<l-nee fyoo-di-br-mee).
[Law Latin] Scots law. In name offeu-farm; on account
oflands held in feu. See FEU.
nomine poenae (nahm-<l-nee pee-nee), n. [Latin "in the
name ofpenalty"]l. Civil law. A clause in a testament
requiring the heir to do something by way ofpenalty. 2.
At common law, a penalty for nonperformance, such as
additional rent to be paid by a tenant to a landlord for
failing to perform certain conditions in a lease.
nominis receptio (nahm-<l-nis ri-sep-shee-oh). [Latin]
Roman law. A presiding judge's registering of an
accused person's name in the rolls ofa criminal court.
This registration was essential for the case to be tried.
The day fixed for a criminal trial was ordinarily ten
days after the nominis receptio.
nomocanon (n<l-mok-<)-non or noh-md-kan-<ln). (1908)
1. A collection ofcanon and imperial laws applicable to
ecclesiastical matters in the orthodox churches . The
first nomocanon is falsely ascribed to Johannes Scholas
ticus, patriarch ofConstantinople, in 553. Later canons
consist primarily of the canons of the Quinisext and
the ecclesiastical laws ofJustinian. 2. A collection ofthe
ancient canons of the apostles, councils, and fathers,
without regard to imperial constitutions.
nomogenetics. See COMPARATIVE NOMOGENETICS. drafts laws. 2. A person skilled in nomography.
nomography (n<)-mog-r<)-fee). (1832) 1. The art of
drafting laws. 2. A treatise on the drafting of laws.
nomoscopy. See COMPARATIVE NOMOSCOPY.
nomothete (noh-m<l-theet), 11. [fro Greek nomos "law" +
thetes "a person who prescribes"] Hist. A lawgiver.
Also spelled nomotheta.
"It was [in ancient Greek law] provided that all motions to
repeal or amend an existing law should be brought before
the ecclesia or general meeting of citizens, at the beginning
of the year. They might be then and there rejected; but if
a motion was received favorably, the ecclesia appointed a
body of nomothetes, |
They might be then and there rejected; but if
a motion was received favorably, the ecclesia appointed a
body of nomothetes, sometimes as many as a thousand in
number, before whom the proposal was put on trial accord
ing to the regular forms of Athenian judicial procedure. A
majority vote of the nomothetes was decisive for accep
tance or rejection." 5 Century Dictionary and Cyclopedia
4011 (1895).
nomothetics. See COMPARATIVE NOMOTHETICS.
non (non). [Latin] (l4c) Not; no. This term negates,
sometimes as a separate word and sometimes as a
prefix.
nonability. (17c) 1. The lack oflegal capacity, esp. to sue
on one's own behalf. 2. A plea or exception raising a
lack oflegal capacity.
nonacceptance. (17c) 1. The refusal or rejection ofsome
thing, such as a contract offer; REJECTION (1). 2. A
buyer's rejection ofgoods because they fail to conform
to contractual specifications. See UCC 2-601(a).
[Cases: Sales (;:::; 119, 179(6).] 3. A drawee's failure or
refusal to receive and pay a negotiable instrument.
[Cases: Bills and Notes C:::>24.J
non acceptavit (non ak-sep-tay-vit). [Latin "he did not
accept"] In an assumpsit action against the acceptor of
a bill ofexchange, the defendant's plea denying accep
tance ofthe bilL
nonaccess. Family law. (17c) Absence of opportunity
for sexual intercourse . Nonaccess is often used as
a defense by the alleged father in paternity cases. Cf.
multiple access under ACCESS. [Cases: Children Out
of-Wedlock (;:::;43,46,50,53.]
non accrevit infra sex annos (non <l-kree-vit in-fr<l seks
an-ohs), n. [Latin "it did not accrue in six years"] Hist.
The general pleading form for the statute-of-limitations
defense .
nonacquiescence (non-ak-wee-eS-dnts). Administrative
law. An agency's policy of declining to be bound by
lower-court precedent that is contrary to the agency's
interpretation of its organic statute, but only until the
Supreme Court has ruled on the issue.
"Too much nonacquiescence, however, would interfere with
the courts' ability to prevent an agency from violating its
statutory mandate. The practice is generally upheld, but
is considered questionable when an agency adheres to its
legal pOSition in a case that could only be reviewed in a
circuit that has already rejected the agency's stance. When
the Social Security Administration made frequent use of the
latter kind of nonacquiescence in the administration of its
disability benefits program in the 1980's, it was widely erit
1150 nonactuarially sound retirement system
icized." Ernest Gellhorn & Ronald M. Levin, Administrative
Law and Process in a Nutshell 98 n.2 (4th ed. 1997).
nonactuarially sound retirement system. A retirement
plan that uses current contributions and assets to pay
current benefit obligations, instead ofinvesting contri
butions to pay future benefits. Cf. ACTUARIALLY SOUND
RETIREMENT SYSTEM.
nonadmission. (16c) 1. The failure to acknowledge
something. 2. The refusal to allow something, such as
evidence in a legal proceeding.
nonadmitted asset. See ASSET.
nonae et decimae (noh-nee et des-a-mee), n. pl. [Law
Latin "ninths and tenths"] Hist. Two payments that
church-farm tenants make to the church. the first being
rent for the land and the second being a tithe.
nonage (non-ij). 1. MINORITY (1). 2. NONAGIUM.
nonaggression pact. Int'/law. A treaty in which two
or more countries agree not to engage in aggressive
military operations against one another. Also termed
nonaggression treaty.
nonagium (noh-nay-jee-dm). [Latin "a ninth"] Hist. The
ninth part ofa decedent's personal property, sometimes
payable to the parish clergy for pious uses. Also
termed nonage.
nonaligned state. Int'llaw. A (usu. less developed)
country that has banded together with other similarly
situated countries to enhance its political and economic
position in the world . The movement of nonaligned
states formally began at a summit in 1961, and during
the Cold War these countries declared their indepen
dence from both the western and the Soviet blocs.
nonancestral estate. See ESTATE (1).
nonancestral property. See nonancestral estate under
ESTATE (1).
nonapparent easement. See discontinuous easement
under EASEMENT.
nonapparent servitude. See SERVITUDE (2).
nonappearance. (ISc) The failure to appear in court,
esp. to prosecute or defend a lawsuit. See DEFAULT;
NONSUIT.
nonapportionment rule. Oil & gas. The majority
doctrine that royalties accrued under a mineral lease
on land that is later subdivided during the lease term
are not shared by the owners of the subdivisions, but
belong exclusively to the owner of the land where
the producing well is located. For example. if Grey
granted a lease to Wainwright, then sold one-half of
the land to Svenson, and a well on Wainwright's half
began producing minerals, only Wainwright would
be entitled to the royalty. Cf. APPORTIONMENT RULE.
[Cases: Mines and Minerals C=>79.1(3).]
nonart rejection. See formal rejection under REJEC
TION.
nonassertion letter. Patents. A patentee's written dec
laration that the holder does not intend to enforce the
right to exclude others from practicing specified claims of a patent. The patentee may choose to waive the
right entirely or specify a time limit for the waiver.
[Cases: Patents <:::='82.J
nonassertive conduct. See CONDUCT.
nonassessable insurance. See INSURANCE.
nonassessable stock. See STOCK.
non assumpsit (non d-sam[p]-sit). [Latin "he did not
undertake"] Hist. A general denial in an action of
assumpsit. See ASSUMPSIT. [Cases: Assumpsit, Action
ofC=20.]
'Non assumpsit' is the general issue in assumpsit, whether
special or general, and is in effect a formal denial of liabil
ity on the promise or contract alleged. It denies not only
the inducement or statement of the plaintiff's right, but
also the breach, and allows any defense tending to show
that there was no debt or cause of action at the time of
commencing suit." Benjamin J. Shipman, Handbook of
CommonLaw Pleading 182, at 322 (Henry Winthrop Bal
lantine ed., 3d ed. 1923).
non assumpsit infra sex annos (non ;:l-sam[p]-sit in-frd
seks an-ohs), n. [Latin "he did not undertake within
six years"J Hist. The specific pleading form for the
statute-of-limitations defense in an action ofassump
sit.
nonbailable, adj. (1811) 1. (Of a person) not entitled to
bail <the defendant was nonbailable because ofa charge
offirst-degree murder>. [Cases: Bail G=>43.] 2. (Of an
offense) not admitting of bail <murder is a nonbail
able offense>.
nonbank, adj. Of, relating to, or being an entity other
than a bank <a nonbank depositor> <a nonbank
creditor>.
nonbank bank. See BANK.
nonbank financial institution. See MONEY SERVICE
BUSINESS.
nonbillable time. (1947) An attorney's or paralegal's
time that is not chargeable to a client. Cf. BILLABLE
TIME.
nonbinding minitrial. See summary jury trial under
TRIAL
nonbinding summary jury trial. See summary jury trial
under TRIAL
non bis idem. See NON BIS IN iDEM.
non bis in idem (non bis in I-dem). [Latin] Scots law. Not
twice for the same thing . The phrase usu. referred to
the law forbidding more than one trial for the same
offense. It essentially refers to the double-jeopardy
bar. -Also termed non bis idem; non bis in eodem.
See DOUBLE JEOPARDY.
noncallable bond. See noncallable security under
SECURITY.
noncallable security. See SECURITY.
noncancelability dause. An insurance-policy provision
that prevents the insurer from canceling the policy after
an insured's loss, as long as the premium has been paid.
[Cases: Insurance C=>1916, 1920.]
1151
noncapital, adj. (1865) (Of a crime) not involving or
deserving of the death penalty <noncapital murder>.
noncareer vice-consul. See VICE-CONSUL.
noncash charge. See CHARGE.
non cepit (non see-pit). [Latin "he did not take"] Hist, A
general denial in a replevin action that puts at issue both
the taking and the place oftaking, Also termed non
cepit modo et forma. See REPLEVIN. [Cases: Replevin
C=63,69,]
"'Non cepit' is the general issue in replevin, and is a formal
denial both of the fact and the place of the alleged taking.
It denies the taking only, and not the plaintiff's right of
possession. Where replevin may be and is brought for
goods lawfully obtained, but unlawfully detained, the
general issue is 'non detinet,' which is a denial ofthe deten
tion. It denies the detention only, and not the plaintiff's
right." Benjamin 1-Shipman, Handbook of Common-Law
Pleading 178, at 318 (Henry Winthrop Ballantine ed., 3d
ed. 1923).
noncircumvention agreement. A contractual provision
or separate contract containing mutual promises to use
confidential information only for certain purposes and
only while the contract is in force. Also termed non
circumvent agreement.
noncitable, adj. Not authorized by a court to be used as
legal precedent. _ In general, unpublished opinions are
non citable, although court rules vary. -Also termed
uncitable. Cf. CITABLE.
noncitizen. (1850) A person who is not a citizen of a par
ticular place. See ALIEN. [Cases: Aliens, Immigration,
and Citizenship C=652.j
nondaim. (ISc) A person's failure to pursue a right
within the legal time limit, resulting in that person's
being barred from asserting the right. See STATUTE OF
LIMITAnONS.
nonclaim statute. See STATUTE.
nonclergyable, adj. 1. Hist. (Of an offense) punishable
without benefit of clergy. -At one time, an offender
who qualified for benefit of clergy could escape trial
in the secular courts regardless of the crime. The
benefit was applied so broadly by the end of the 16th
century that Parliament declared certain crimes, such
as murder, robbery, arson, and piracy, nonclergyable.
Over time, more crimes and misdemeanors were added
to the list until the benefit was finally abolished in the
19th century. 2. Archaic. (Of a person) not eligible to
claim benefit of clergy. See BENEFIT OF CLERGY (1).
noncode state. Hist. A state that, at a given time, had not
procedurally merged law and equity, so that equity was
still administered as a separate system. -The term was
current primarily in the early to mid-20th century.
Also termed common-law state. Cf. CODE STATE.
noncombatant, adj. (1826) 1. Not serving in a fighting
capacity <noncombatant personnel>. 2. Not designed
for combat <noncombatant vehicle>.
noncombatant, n. (1811) 1. An armed-service member
who serves in a non-fighting capacity. 2. A civilian in
wartime. nonconstitutional
noncommercial partnership. See nontrading partner
ship under PARTNERSHIP.
noncommercial use. See USE (I).
noncommissioned officer. See OFFICER (2).
noncompete covenant. See noncompetition covenant
under COVENANT (1).
noncompetition agreement. See noncompetition
covenant under COVENANT (1).
noncompetition covenant. See COVENANT (1).
non compos mentis (non kom-p<ls men-tis), adj. [Latin
"not master ofone's mind"] (17c) 1. Insane. 2. Incom
petent. Cf. COMPOS MENTIS. [Cases: Mental Health
3.1.]
non concessit (non k;m-ses-it), n. [Law Latin "he did not
grant") Hist. 1. English law. The plea by which the defen
dant denies that certain rights were given by letters
patent to the plaintiff. -For example, ifa plaintiff sues
for the infringement of a patent right, the defendant
can deny that the Crown granted the plaintiff that right
as alleged in the plaintiff's declaration. 2. A plea by a
stranger to a deed, by which the title and operation of
the deed are placed in issue.
nonconforming goods. See GOODS.
nonconforming lot. See LOT (1).
nonconforming use. See USE (1).
nonconformist. (17c) A person who refuses to follow
established customs, practices, beliefs, or ideas; esp.,
an English Protestant who refuses to adhere to the
Church of England.
nonconformity. ( |
; esp.,
an English Protestant who refuses to adhere to the
Church of England.
nonconformity. (17c) The failure to comply with some
thing, as in a contract specification.
nonconsensual, adj. (1920) Not occurring by mutual
consent <nonconsensual sexual relations>. [Cases:
i Rape
nonconsent. (1844) 1. Lack of voluntary agreement. 2.
. Criminal law. In the law of rape, the refusal to engage
i willingly in sexual intercourse. See CONSENT. [Cases:
, RapeC=8.J
I non constat (non kon-stat). [Latin "it is not settled"] It is
not certain or agreed. -'lbe phrase is generally used to
state that some conclusion does not necessarily follow
although it might appear on its face to follow. C[ NON
SEQUITUR.
"Non Constat .... Words frequently used, particularly in
argument, to express dissatisfaction with the conclusions
of the other party: as, it was moved in arrest ofjudgment
that the declaration was not good, because non constat
whether AS was seventeen years of age when the action
was commenced." 3John Bouvier, Bouvier's Law Dictionary
2355 (8th ed. 1914).
nonconstitutional, adj. (1879) Of or relating to some
legal basis or principle other than those of the u.s. Con
stitution or a state constitution <the appellate court
refused on nonconstitutional procedural grounds
to hear the defendant's argument about cruel and
unusual punishment>. Cf. UNCONSTITUTIONAL
nonconsumable, n. (1902) A thing (such as land, a
vehicle, or a share of stock) that can be enjoyed without
any change to its substance other than a natural dimi
nution over time; NONFUNGIBLE. Cf. CONSUMABLE.
nonconsumable, adj.
noncontestability clause. See INCONTESTABILITY
CLAUSE.
noncontest clause. See NO-CONTEST CLAUSE.
noncontinuing guaranty. See limited guaranty under
GUARANTY.
noncontinuous easement. See discontinuous easement
under EASEMENT.
noncontract, adj. See NONCONTRACTUAL.
noncontract demurrage. See DEMURRAGE.
noncontractual, adj. (1883) Not relating to or arising
from a contract <a noncontractual obligation>. Also
termed noncontract.
noncontractual duty. See DUTY (1).
noncontribution clause. A fire-insurance-policy pro
vision stating that only the interests of the property
owner and the first mortgagee are protected under the
policy. [Cases: Insurance (:::::>3449.]
noncontributory, adj. (1907) 1. Not involved in some
thing. 2. (Of an employee benefit plan) funded
by the employer. [Cases: Labor and Employment
419.]
noncontributory pension plan. See PENSION PLAN.
noncore proceeding. See RELATED PROCEEDING.
noncovered wages. See WAGE.
non culpabilis (non bl-pay-ba-Ias). [Latin] Not guilty.
Abbr. non cui.
noncumulative approach. See DUALITY OF ART.
noncumulative dividend. See DIVIDEND.
noncumulative preferred stock. See STOCK.
noncumulative stock. See noncumulative preferred stock
under STOCK.
noncumulative voting. See VOTe'G.
noncustodial, adj. 1. (1960) (Of an interrogation, etc.)
not taking place while a person is in custody. 2. Of or
relating to someone, esp. a parent, who does not have
sole or primary custody.
noncustodial interrogation. See INTERROGATION.
noncustodial parent. See PARE"'T.
uoncustodial sentence. See SENTENCE.
non damnificatus (non dam-na-fa-kay-tas). [Latin "he
is not damaged"] In an action of debt on a bond that
holds the plaintiff harmless, the defendant's plea that
the plaintiff has not been damaged.
nondeadly force. See FORCE.
nondeadlyweapon. See LESS-LETHAL.
non debit. See NEVER INDEBTED, PLEA OF. non decimando (non des-a-man-doh). See DE NON DECI
MANDO.
non dedit (non dee-dit), n. [Latin "he did not grant"]
NE DONA PAS.
non deficitjus sed probatio (non def-a-sit jast sed proh
bay-shee-oh). [Latin] Scots law. 'Ihe right is not lacking,
but the proof ofit. _ The phrase appeared in reference
to the principle that many rights, both disputed and
sometimes undisputed, require a special mode of proot~
such as a written document.
nondelegable (non-del-a-ga-bal), adj. (1902) (Of a power,
function, etc.) not capable of being entrusted to anoth
er's care <the duty to maintain the premises is a non
delegable duty>.
nondelegable duty. See DtJTY (1).
nondelegation doctrine. See DELEGATION DOCTRINE.
nondelivery. (18c) A failure to transfer or convey some
thing, such as goods. Cf. DELIVERY.
non demiset (non da-mI-zit). [Latin "he did not demise"]
Hist. 1. A defensive plea in an action for rent when the
plaintiff failed to plead that the demise was by inden
ture. _ It could not be used if the plaintiff alleged an
indenture. 2. In a replevin action, a plea in bar to an
avowry for arrears of rent.
nondepository provider of financial services. See
MONEY SERVICE BUSINESS.
non detinet (non det-i-net or det-a-nat). [Latin "he does
not detain"] Hist. 1. The pleading form of a general
denial in a detinue action for recovery of goods
detained by the defendant. - A non detinet denies both
the detention and the plaintiff's right of possession or
property in the goods claimed. See DETINUE. [Cases:
Detinue C=:> 17.]2. Loosely, NON CEPIT.
nondirection. (18c) The failure of a judge to properly
instruct a jury on a necessary point oflaw.
nondischargeable debt. See DEBT.
nondisclosure. (1908) 1. The failure or refusal to reveal
something that either might be or is required to be
revealed. Cf. CONCEALMENT. [Cases: Fraud 16.] 2.
NONDISCLOSURE AGREEMENT.
nondisclosure agreement. Trade secrets. A contract or
contractual provision containing a person's promise
not to disclose any information shared by or discov
ered from a trade-secret holder, including all informa
tion about trade secrets, procedures, or other internal
or proprietary matters. _ Employees and some non
employees, such as beta-testers and contractors, are
frequently required to sign nondisclosure agree
ments. Often shortened to nondisclosure. Abbr.
NDA. Also termed confidentiality agreement.
Contracts 0:::' 118.]
nondisclosure clause. See confidentiality clause under
CLAUSE.
nondiscretionary trust. Seefixed trust under TRUST.
nondisparagement clause. See CLAUSE.
1153 nonfunded deferred-compensation plan
non distringendo (non di-strin-jen-doh). [Law Latin
"not to be distrained"] A writ to prevent the distraint
ofsomething.
nondiverse. adj. (1947) 1. Ofor relating to similar types
<the attorney's practice is nondiverse: she handles only
criminal matters>. 2. (Of a person or entity) having the
same citizenship as the party or parties on the other
side of a lawsuit <the parties are nondiverse because
both plaintiff and defendant are California citizens>.
See diversity jurisdiction under JURISDICTION. [Cases:
Federal Courts C='286.1.]
nonelected claim. See PATENT CLAIM.
nonenablement. Patents. In a patent application's spec
ification, the quality of not being clear or complete
enough to teach a of ordinary person skill in the art
how to make and use the invention without undue
experimentation. -Also termed lack ofenablement.
[Cases: Patents C='99.]
nonenablement rejection. See REJECTION.
non entia (non en-shee-d). [Law Latin] Hist. Nonentities;
things not existing.
Nones (nohnz), n. [fro Latin nonus "ninth"]!. Roman
law. In the Roman calendar, the ninth day before the
Ides, being the 7th of March, May, July, and October,
and the 5th of the other months. 2. Eccles. law. In the
Roman Catholic church, one ofthe seven daily canoni
cal hours (about 3:00 p.m.) for prayer and devotion. 3.
Archaic. The ninth hour after sunrise, usu. about 3:00
p.m. Cf. CALENDS; IDES.
nonessential mistake. See unessential mistake under
MISTAKE.
nonessential term. See nonfundamental term under
TERM (2).
non est. See NON EST INVENTUS.
non est factum (non est fak-tam). [Latin "it is not his
deed"] Hist. A denial ofthe execution ofan instrument
sued on. [Cases: Bills and Notes C-=>47S.]
"The general issue in covenant is 'non est factum,' which
is a formal denial that the deed is the deed of the defen
dant." Benjamin J. Shipman, Handbook of Common-Law
Pleading 187, at 331 (Henry Winthrop Ballantine ed., 3d
ed. 1923).
general non est factum. Hist. A broad, nonspecific
denial that an instrument was executed or executed
properly. [Cases: Bills and Notes
particular non est factum. See special non est factum,
special non estfactum. Hist. A pleading that speci
fies the grounds on which an instrument's execution
is invalid or nonbinding. -Also termed particular
non est factum.
verified non est factum. Hist. A sworn denial that puts
the validity ofthe instrument as well as the signature
in question. [Cases: Bills and Notes C=>47S; Pleading
(~~)291(2).1
non est inventus (non est in-ven-tds). [Latin "he is not
found"] Hist. A statement in a sheriff's return indicat
ing that the person ordered arrested could not be found in the sheriff's jurisdiction. -Sometimes shorted to
non est. -Abbr. n.d.
"If non est invenruswas returned to the bill, and the plaintiff
had reason to think that the defendant was stillm the same
county, he might have another bill, and after that a third,
and so on till the defendant was caught ... _" 1 George
Crompton, Practice Common-Placed: Rules and Cases of
Practice in the Courts of King's Bench and Common Pleas
xxxv (3d ed. 1787).
non-Euclidean zoning. See ZONING.
nonexclusive easement. See common easement under
EASEMENT.
nonexclusive license. See LICENSE.
nonexclusive listing. See open listing under LISTING
(1).
nonexecntive right. Oil &-gas. A mineral interest that
does not confer the right to lease. _ Nonexclusive rights
include royalty interests and nonexecutive mineral
interests. [Cases: Mines and Minerals C='55(4).]
nonexempt property. A debtor's holdings and posses
sions that a creditor can attach to satisfy a debt. Cf.
EXEMPT PROPERTY (1).
nonfeasance (non-feez-ants), n. (l6c) The failure to act
when a duty to act existed. Cf. MALFEASANCE; MISFEA
SANCE; FEASANCE. [Cases: Municipal Corporations
735; Negligence C='200.]- nonfeasant, adj. -non
feasor, n.
"Hence there arose very early a difference, still deeply
rooted in the law of negligence, between 'misfeasance'
and 'nonfeasance' -that is to say, between active miscon
duct working positive injury to others and passive inaction
or a failure to take steps to protect them from harm." W.
Page Keeton et aI., The Law of Torts 56, at 374 (5th ed.
1984).
non fecit (non fee-sit). [Latin "he did not make it"] A
denial in an assumpsit action on a promissory note.
non fecit vastum contra prohibitionem (non fee-sit
vas-t<'lm kahn-tn} proh-[h],,-bish-ee-oh-nam). [Latin
"he did not commit waste against the prohibition"] In
an estrepement action, a tenant's denial ofany destruc
tion to lands after an adverse judgment but before the
sheriff has delivered possession of the lands to the
plaintiff. See ESTREPEMENT.
nonfeIonious homicide, See HOMICIDE.
nonfiler. Tax. See illegal tax protester under TAX PRO
TESTER.
nonforfeitable, adj. (1871) Not subject to forfeiture. See
FORFEITURE. [Cases: Controlled Substances C=,164;
Forfeitures C='3.]
nonforfeiture optiou. See OPTION.
nonfreehold estate. See ESTATE (1).
nonfunctional, n. Trademarks. A feature ofa good that,
although it might identify or distinguish the good from
others, is unrelated to the product's use. [Cases: Trade
marks C=;1064, 1065(3).]
nonfunded deferred-compensation plan. See non
qualified deferred-compensation plan under EMPLOYEE
BENEFIT PLAN.
1154 nonfundamental term
nonfundamental term. See TER |
YEE
BENEFIT PLAN.
1154 nonfundamental term
nonfundamental term. See TERM (2).
nonfungible (non-f.nl-ja-bal), adj. Not commercially
interchangeable with other property of the same kind
<a piece ofland is regarded as non fungible>. -non
fungible, n.
nongermane amendment. See AMENDMENT (3).
nongovernmental organization. Int'llaw. Any scientific,
professional, business, or public-interest organization
that is neither affiliated with nor under the direction
of a government; an international organization that
is not the creation of an agreement among countries,
but rather is composed of private individuals or orga
nizations. -Examples of nongovernmental organiza
tions, which are often granted consultative status with
the United Nations, include Amnesty International,
Greenpeace, and the International Committee of the
Red Cross. Abbr. NGO. Also termed private vol
untaryorganization.
nongrantor-owner trust. See TRUST (3).
non impedivit (non im-pa-dI-vit), n. [Latin "he did not
impede"] The defendant's general denial in a quare
impedit action. This is the Latin form equivalent to ne
disturba pas. See NE DISTURBA PAS; QUARE IMPEDIT.
non implacitando aliquem de libero tenemento sine
brevi (non im-plas-,Han-doh al-a-kwem dee lib-ar-oh
ten-d-men-toh sl-nee bree-vI) [Latin "not impleading
anyone of his free tenement without a breve"] Hist.
A writ that, without a writ from the king, prohib
ited bailiffs or others from distraining anyone from
touching their freehold estates.
noninfamous crime. See CRIME.
non infregit conventionem (non in-free-jit kan-ven
shee-oh-nam). [Latin "he committed no breach of
covenant"] Hist. A defensive plea in an action for
breach of covenant.
noninstallment credit. See CREDIT (4).
noninsurable risk. See RISK.
nonintercourse. 1. The refusal of one country to deal
commercially with another . For example, the Non
Intercourse Act of1809, a congreSSional act, prohibited
the importation ofBritish or French goods. 2. The lack
ofaccess, communication, or sexual relations between
husband and wife. Cf. NONACCESS.
nonintercourse act. Int'llaw. A statute that suspends
commercial or other relations between nations. [Cases:
War and National Emergency C=;> 15.]
non-interest-bearing bond. See discount bond under
BOND (3).
non interfui (non in-t<lr-fyoo-I). [Latin "I was not
present"] A reporter's note.
noninterpretivism, n. (1978) In constitutional interpre
tation, the doctrine holding that judges are not confined
to the Constitution's text or preratification history but
may instead look to evolving social norms and values
as the basis for constitutional judgments. Cf. INTERPRE
TIVISM; ORIGINALISM. noninterpretivist, n. nonintervention. (1831) Int'llaw. The principle that
a countrv should not interfere in the internal affairs
of anoth~r country. The UN. Charter binds it from
intervening "in matters which are essentially within the
domestic jurisdiction of any state ...." V.N. Charter
art. 2(7). -Also termed principle ofnonintervention.
nonintervention executor. See independent executor
under EXECUTOR.
nonintervention will. See WILL.
non intromittendo, quando breve praecipe in capite
subdole impetratur (non in-troh-mi-ten-doh,
kwon-doh bree-vee pree-sa-pee [or pres-a-pee] in kap
a-tee sab-da-lee im-pa-tray-tar), n. [Latin "not interfer
when the writ praecipe in capite was obtained by
deceit"] Hist. A writ issued to the King's Bench or Eyre,
commanding them not to aid a person who obtained a
praecipe in capite for lands from the king because that
person likely obtained the writ deceitfully, and ordering
them to put that person to the writ of right.
nonintromittent clause (non-in-troh-mit-ant). English
law. A clause in the charter of a borough exempting
it from the jurisdiction of the justices of the peace
appointed for the borough's county.
nonissuable plea. See PLEA (3).
nonjoinder. (1823) 1. The failure to bring a person who
is a necessary party into a lawsuit. Fed. R. Civ. P. 12(b)
(7),19. See JOINDER. Cf. MISJOINDER (1); DISJOINDER (1).
Federal Civil Procedure C=;>384; PartiesC=;>77,
8L] 2. Patents. Failure to name a coinventor in a patent
application.
nonjudicial day. See DAY.
nonjudicial foreclosure. See FORECLOSURE.
nonjudicial oath. See OATH.
nonjudicial punishment. See PUNISHMENT.
nonjuridical (non-juu-rid-i-kal), adj. (1853) 1. Not ofor
relating to judicial proceedings or to the administra
tion ofjustice <the dispute was nonjuridicab. 2. Not
ofor relating to the law; not legal <a natural person is
a nonjuridical entity>. Cf. JURIDICAL.
non juridicus (non juu-rid-i-bs), adj. [Latin "not
judicial"] Ofor relating to a day when courts do not sit
or when legal proceedings cannot be conducted, such
as a Sunday.
nonjuror. (I7c) 1. Someone who is not serving as a juror.
2. Hist. A person who refused to pledge allegiance to
the sovereign; specif., in England and Scotland, a cler
gyman who, after 1688, refused to break the oath to
James II and his heirs and successors, and to recognize
William ofOrange as king . In Scotland, a nonjuror
was also recognized by the Presbyterian Church as
a clergyman who refused to renounce the Episcopal
Church when it was disestablished in 1690 in favor of
Presbyterianism.
nonjury, adj. Ofor relating to a matter determined by a
judicial officer, such as a judge, rather than a jury <the
1155 nonobviousness
plaintiff asked for a nonjury trial>. [Cases: Federal Civil
Procedure Trial (>367.]
nonjurytrial. See bench trial under TRIAL.
nonjusticiable (non-j<ls-tish-ee-<l-b<ll or non-j<ls-tish-d
bdl), adj. (19l5) Not proper for judicial determination
<the controversy was nonjusticiable because none of
the parties had suffered any harm>. [Cases: Action
6; Federal Courts (:::::? 12.1.]
nonjusticiable question. See POLITICAL QUESTION.
nonlapse statute. See ANTILAPSE STATUTE.
nonlawyer. A person who is not a lawyer.
nonlethal weapon. See LESS-LETHAL.
nonleviable (non-lev-ee-J-bJI), adj. (1860) (Ofproperty
or assets) exempt from execution, seizure, forfeiture, or
sale, as in bankruptcy. See HOMESTEAD LAW. [Cases;
Exemptions Homestead (:::::? 1.]
non liquet (non h-kwet or li-kwet). [Latin "it is not
clear"]!. Civil law. The principle that a decision-maker
may decline to decide a dispute on the ground that the
matter is unclear. Even British judges formerly some
times said Non liquet and found for the defendant. 2.
Int'l law. A tribunal's nondecision resulting from the
unclarity of the law applicable to the dispute at hand.
In modern usage, the phrase appears almost always
in passages stating what a court must not do: tribunals
are routinely disallowed from declaring a non liquet.
Abbr. n.l.
nonliquidating distribution. See DISTRIBUTION.
nonliteral infringement. See DOCTRINE OF EQUIVA
LENTS.
nonmailable, adj. Ofor relating to a letter or parcel that
cannot be transported by mail for a particular reason
such as the package's size, contents, or obscene label.
[Cases; Postal Service
nonmarital child. See illegitimate child under CHILD.
nonmarketable security. See SECURITY.
nonmedical policy. See INSURANCE POLICY.
nonmember bank. See BANK.
non memini (non mem-~-nI). [Law Latin] Scots law. I do
not remember. The phrase appeared in reference to
an oath in which one person swore no remembrance
ofa transaction.
'Where a party to whose oath the resting-owing of a debt, or
a payment, is referred, swears that he does not remember
receiving the goods charged for, or of his incurring the
debt, or of receiving the alleged payment, such oath, as not
being evidence of the point referred, may result in decree
of absolvitor in his favour, where the whole circumstances
tend to the conclusion that the non memini is not only
an honest answer, but a reasonable one. But if the fact
referred is so recent that the deponent cannot be believed
to be ignorant of it, or to have forgotten it, he is considered
as concealing the truth, and will be decerned against in the
same manner as if he had refused to depone." John Trayner,
Trayner's Latin Maxims 397 (4th ed. 1894).
non merchandizanda victualia (non m~r-chJn-di
zan-d<l vik-choo-ay-Iee-a), n. [Law Latin "not to merassize to investigate and punish town magistrates who
retailed victuals while in office.
nonmerchantable title. See unmarketable title under
TITLE (2).
nonmetered license. See LICENSE.
non molestando (non moh-l<l-stan-doh), n. [Law Latin
"by not molesting"] Hist. A writ available to a person
whose possession ofland has been disturbed, contrary
to the Crown's protection.
nonmonetary item. (1965) An asset or liability whose
price fluctuates over time (such as land, equipment,
inventory, and warranty obligations).
nonmovant (non-moov-ant). (1955) A litigating party
other than the one that has flIed the motion currently
under consideration <the court, in ruling on the plain
tiff's motion for summary judgment, properly resolved
all doubts in the nonmovant's faVOr>.
nonmutual collateral estoppel. See COLLATERAL
ESTOPPEL.
nonnavigable, adj. 1. (Of a body of water) unaffected
by the tide. [Cases; Navigable Waters (,'::J 1.] 2. (Of a
body ofwater) incapable ofallowing vessels to pass
for travel or commerce. 3. (Of any vessel) incapable of
being steered. Cf. NAVIGABLE .
nonnegotiable, adj. (1859) 1. (Ofan agreement or term)
not subject to change <the kidnapper's demands were
nonnegotiable>. 2. (Of an instrument or note) inca
pable of transferring by indorsement or delivery. Cf.
NEGOTIABLE. [Cases: Bills and Notes C-:::: 144.J
nonnegotiable bill oflading. See straight bill oflading
under BILL OF LADING.
nonnegotiable document of title. See DOCUMENT OF
TITLE.
non numeratae pecuniae (non n(yJoo-me-ray-tee pi
kyoo-nee-ee). [Latin] Hist. (Defense) of money not
paid.
non obstante (non ahb-stan-tee or <lb-stan-tee), n. [Latin
"notwithstanding"]. 1. His/. A doctrine used by the
Crown ofEngland to give effect to certain documents,
such as grants or letters patent, despite any laws to the
contrary. This doctrine was abolished by the Bill of
Rights. 2. A phrase used in documents to preclude any
interpretation contrary to the stated object or purpose.
3. NON OBSTANTE VEREDICTO.
non obstante veredicto (non ahb-stan-tee [or Jb-stan
tee] ver-<l-dik-toh). [Latin] (15c) Notwithstanding the
verdict. Often shortened to nOr! obstante. -Abbr.
n.o.v.; NOV. See judgment notwithstanding the verdict
under JUDGMENT. [Cases: Federal Civil Procedure
2601; Judgment Cr-::, 199.]
nonobviousness. Patents. 1. An invention's quality of
being sufficiently different from the prior art that, at
the time the invention was made, it would not have
been obvious to a person having ordinary skill in the
art relevant to the invention. 2. The requirement that
chandise victuals"] Hist. A writ directing justices of i this quality must be demonstrated for an invention
1156 nonoccupant visitor
to be patentable. _ Nonobviousness may be demon
strated with evidence concerning prior art or with
other objective evidence, such as commercial success or
professional approval. The test ofobviousness involves
examining the scope and content of the prior art, the
differences between the prior art and the patent claims,
and the level ofordinary skill in the art. 35 USCA 103.
See GRAHAM FACTORS. Cf. NOVELTY. [Cases: Patents
(;:=> 16(1).]
nonoccupant visitor. (1996) Criminal procedure. A
person who owns, co-owns, is employed by, or is a
patron ofa business enterprise where a search is being
conducted in accordance with a search warrant.
nonoccupational, adj. (1918) 1. Not relating to one's job. |
with a search warrant.
nonoccupational, adj. (1918) 1. Not relating to one's job.
2. Of or relating to a general-disability policy provid
ing benefits to an individual whose disability prevents
that individual from working at any occupation. [Cases:
Insurance (;= 2561(5).J
nonoccupier. (1958) One who does not occupy a particu
lar piece ofland; esp., an entrant on land who is either
an invitee or a licensee. See INVITEE; LICENSEE (2).
non omittas propter liberatem (non <l-mit-<ls prop-tdr
lib-<l-ray-t<lm). [Latin "do not omit because of any
liberty"J Hist. A clause, usu. contained in writs of
execution, directing the sheriff to execute the writ
regardless ofwhether the sheriffhad been granted the
requisite special authority from a franchise (liberty) or
district. [Cases: Execution
nonoperating income. See INCOME.
nonoperative performance bond. See PERFORMANCE
BOND.
nonoriginal bill. See BILL (2).
nonownership theory. Oil & gas. A characterization of
oil-and-gas rights used in a minority ofjurisdictions,
holding that the owner of a severed mineral interest
does not have a present right to possess the oil and gas
in place, but only to search for, develop, and produce
it. Because there is no right to present possession, the
interest of such an owner in a nonownership-theory
state is akin to a profit a prendre: a right to use the land
and remove items ofvalue from it. This theory is used
in California, Wyoming, Louisiana, and Oklahoma.
Cf OWNERSHIP-IN-PLACE THEORY. [Cases: Mines and
Minerals (;::::;'73.1(2), 73.1(4).J
non pars substantiae sive fundi, sed accidens (non parz
s;:lb-stan-shee-ee sl-vee f3n-dI, sed ak-si-denz). [Law
Latin) Scots law. Not a part ofthe substance or the land,
but an accident. -The phrase appeared in reference to
servitudes, among other things.
nonparticipating, adj. (1859) Ofor relating to not taking
part in something; specif., not sharing or haVing the
right to share in profits or surpluses. Often short
ened to nonpar.
nonparticipating preferred stock. See STOCK.
nonparticipating royalty. See ROYALTY (2). nonpayment. (15c) Failure to deliver money or other
valuables, esp. when due, in discharge ofan obligation.
Cf PAYMENT (1). [Cases: Contracts (;=)312(3).]
nonpecuniary damages. See DAMAGES.
nonpecuniary injury. See irreparable injury under
INJURY.
nonperformance. (16c) Failure to discharge an obliga
tion (esp. a contractual one). Cf. PERFORMANCE; MIS
PERFORMANCE. [Cases: Contracts
nonperforming loan. See LOAN.
nonpersonal action. See ACTION (4).
non plevin (non plev-in). [LatinJ Iiist. The failure to
timely replevy land after it is taken by the Crown on
a default.
non ponendis in assisis etjuratis (non pd-nen-dis in
;:I-sl-zis et juu-ray-tis), n. [Law Latin "not to be put in
assizes and juries"] Hist. A writ discharging a person
from jury duty.
nonpossessoryestate. See FUTURE INTEREST.
nonprivity (non-priv-d-tee). (1902) The fact or state of
not being in privity of contract with another; lack of
privity. See PRIVITY (1). [Cases: Contracts <~:::>186; Sales
(;:=>255.J
horizontal nonprivity. (1982) The lack ofprivity occur
ring when the plaintiff is not a buyer within the dis
tributive chain, but one who consumes, uses, or is
otherwise affected by the goods. For example, a
houseguest who becomes ill after eating meat that
her host bought from the local deli is in horizontal
nonprivity with the deli. [Cases: Sales
vertical nonprivity. (1982) The lack ofprivity occurring
when the plaintiff is a buyer within the distributive
chain who did not buy directly from the defendant. _
For example, someone who buys a drill from a local
hardware store and later sues the drill's manufacturer
is in vertical nonprivity with the manufacturer.
nonprobate, adj. (1919) 1. Ofor relating to some method
oftransmitting property at death other than by a gift by
will <nonprobate distribution>. [Cases: Wills (;:=>4.] 2.
Ofor relating to the property so disposed <nonprobate
assets>. See nonprobate asset under ASSET.
nonprobate asset. See ASSET.
nonprobate property. See nonprobate asset under
ASSET.
non procedendo ad assisam (non proh-s;)-den-doh ad
;:I-SI-zdm). See DE NON PROCEDENDO AD ASSISAM.
non procedendo ad assisam rege inconsulto (non proh
sd-den-doh ad d-SI-Zdm ree-jee in-k<ln-s31-toh). [Latin]
Hist. A writ to put a stop to the trial ofa case (pertain
ing to one who is in the king's service, etc.) when the
king has not been consulted.
nonprofit association. See ASSOCIATION.
nonprofit corporation. See CORPORATION.
Nonproliferation Bureau. See BUREAU OF NONPROLIF
ERATION.
1157 nonservant agent
nonproliferation treaty. See TREATY (1).
non pros (non prahs). abbr. NON PROSEQUITUR.
nonprosecution, affidavit of. See affidavit ofnonprosecu
tion under AFFIDAVIT.
non prosequitur (non pra-sek-w;Har or proh-). [Latin
"he does not prosecute"] (18c) 1he judgment rendered
against a plaintiff who has not pursued the case.
Often shortened to non pros.
nonpubUc forum. (1978) Constitutional law. Public
property that is not designated or traditionally con
sidered an arena for public communication, such as
a jail or a military base . The government's means of
regulating a non public forum need only be reasonable
and viewpoint-neutral to be constitutional. Cf. PUBLIC
FORUM. [Cases: Constitutional Law <8='1748.]
non-purchase-money, adj. (1941) Not pertaining to or
being an obligation secured by property obtained by a
loan <non-purchase-money mortgage>. Cf. purchase
money mortgage under MORTGAGE.
nonqualified deferred-compensation plan. See
EMPLOYEE BENEFIT PLAN.
nonqualified executive-compensation plan. See non
qualified deferred-compensation plan under EMPLOYEE
BENEFIT PLAN.
nonqualified pension plan. See PENSION PLAN.
nonqualified stock option. See STOCK OPTION.
non quieta movere (non kWI-ee-t<l moh-veer-ee), n.
[Latin "not to disturb what is settled"] Stare decisis.
Non quieta movere expresses the same principle as
stare decisis. It is part ofthe longer phrase stare decisis
et non quieta movere ("to adhere to precedents, and
not to unsettle things that are established"). See STARE
DECISIS. [Cases: Courts <:::='89.]
nonrecognition. (1932) Int'llaw. The refusal ofone gov
ernment to recognize the legitimacy ofanother govern
ment. Cf. RECOGNITION (6).
nonrecognition provision. (1932) Tax. A statutory rule
that allows all or part of a realized gain or loss not to
be recognized for tax purposes . Generally, this type
ofprovision only postpones the recognition ofthe gain
or loss. See RECOGNITION (4).
nonrecourse, adj. (1926) Ofor relating to an obligation
that can be satisfied only out of the collateral securing
the obligation and not out of the debtor's other assets.
[Cases: Bills and Notes 44; Secured Transactions
Cr~227, 240.J
nonrecourse loan. See LOAN.
nonrecourse note. See NOTE (1).
nonrecurring dividend. See extraordinary dividend
under DIVIDEND.
nonrefoulement (non-ri-fowl-mcmt). [FrenchJ A refu
gee's right not to be expelled from one state to another,
esp. to one where his or her life or liberty would be
threatened. Cf. REFOULEMENT.
nonrefund annuity. See A:>I:>IUITY. nonremovable inmate. An alien who, having been
detained, would ordinarily be deportable but cannot be
deported because the United States does not maintain
diplomatic ties with the alien's country of origin.
Also termed indefinite detainee; lifer.
nonrenewal. (1819) A failure to renew something, such
as a lease or an insurance policy. [Cases: Insurance <8='
1894; Landlord and Tenant (;=::81.5-86,94,278.10.
0136.]
nonreporting issuer. See ISSUER.
non repugnantia (non ree-p<'1g-nan-shee-a). [Law Latin]
Scots law. An absence ofopposition, as to a claim.
nonresidence, n. (16c) l. The status ofliving outside the
limits of a particular place. 2. Eccles. law. The absence
of a spiritual person from the benefice . This was an
offense punishable by sequestering the benefice and
forfeiting part of its income.
nonresident, n. (16c) One who does not live within the
jurisdiction in question. Abbr. n.r. -nonresident,
adj.
nonresident alien. See ALIEN.
nonresident decedent. See DECEDENT.
non residentia clerici regis (non rez-i-den-shee-d kler
<I-SI ree-jis). See DE NON RESIDENTIA CLERIC! REGIS.
nonresidential parent. See noncustodial parent under
PARENT.
non residentio pro clerico regis (non rez-i-den-shee-oh
proh kler-<l-koh ree-jis). [Latin "by nonresidence for
a royal clerk"] Hist. A writ ordering a bishop not to
harass a clerk who, being employed in the royal service,
has become a nonresident.
nonresident-motorist statute. A state law governing the
liabilities and obligations of nonresidents who use the
state's highways. [Cases: Automobiles <8='235.]
nonresponsive, adj. 1. (Of a reply to a question, esp.
from a witness under oath) not directly answering the
question asked. [Cases: Witnesses C:::>248.]2. Patents.
(Of a patent applicant's answer) not addreSSing every
rejection, objection, and requirement contained in a
patent examiner's office action . A nonresponsive
reply may render an application abandoned. 37 CFR
1.111. [Cases: Patents (;=:c104.]
nonresponsive answer. See unresponsive answer under
ANSWER (2).
nonretroactivity principle. See NEW-RULE PRINCIPLE.
nonrun time. See dead time under TIME.
non sanae mentis (non say-nee men-tis), adj. [Latin] Not
ofsound mind.
non-self-governing territory. See TERRITORY.
non sequitur (non sek-wa-tar). [Latin "it does not
follow"] (16c) 1. An inference or conclusion that does
not logically follow from the premises. 2. A remark or
response that does not logically follow from what was
previously said. Cf. NON CONSTAT.
nonservant agent. See AGENT (2).
1158 nonservice
nonservice. (i8c) The failure to serve a summons,
warrant, or other process in a civil or criminal case.
nonshareholder constituency. A group of nonstock
holders, such as employees or the public, who have
an interest in the corporation's business -an interest
that the corporation may legally consider, in addition
to shareholders' interests, in making major policy deci
sions. Also termed alternative constituency.
nonskip person. (1988) Tax. A person who is not a skip
person for purposes of the generation-skipping transfer
tax. IRC (26 USCA) 2613(b). See SKIP PERSON. [Cases:
Internal Revenue (;:::>4224.]
nonsolidtation agreement. A promise, usu. in a contract
for the sale of a business, a partnership agreement, or
an employment contract, to refrain, for a specified
time, from either (1) enticing employees to leave the
company, or to lure customers away. [Cases:
Contracts
non solvendo pecuniam ad quam clericus mulctatur
pro non-residentia (non sol-yen-doh pi-kyoo-nee-am
ad kwam kler-a-kas malk-tay-tdr proh non-rez-a-den
shee-a). [Latin] Hist. A writ prohibiting an ordinary
from taking a pecuniary mulct imposed on a clerk of
the sovereign for nonresidence.
nonsovereign state. See STATE.
nonstaple. Patents. An unpatented thing or material that
is a component of a patented product or is used in a
patented process, but that has little or no other practi
cal use . Patentees have a limited right to control the
market for nonstaples through tying agreements. But
if the thing supplied is a staple, the tying agreement is
restraint of trade. 35 USCA 271(d). Cf. STAPLE (3).
|
agreement is
restraint of trade. 35 USCA 271(d). Cf. STAPLE (3).
nonstatutory, adj. 1. Enforceable by some legal precept
other than enacted law, such as precedent or trade
custom. 2. Patents. Unpatentable for not meeting some
statutory requirement, e.g., novelty, utility, nonobvious
ness, or enabling description. 3. Patents. Ofor relating
to an equitable defense to an infringement claim, esp.
estoppel, inequitable conduct, or laches.
nonstatutory bond. See voluntary bond under BOND
(3).
nonstatutory claim. See omnibus claim under PATENT
CLAIM.
nonstatutory subject matter. Patents. A thing that does
not fit into any of the categories of things that by law
can be patented . Examples include works of nature,
abstract ideas, human movements. 35 USCA 101.
[Cases: Patents
nonstock corporation. See CORPORATION.
non submissit (non sab-mis-it). [Latin "he did not
submit"] In a debt action on a bond to perform an
arbitration award, a defendant's denial that he or she
submitted to the arbitration.
non suijuris (non s[Y]OO-I or soo-ee joor-is), adj. [Latin
"not of one's own right"] Lacking legal age or capacity.
Cf. SUI TURIS. nonsuit, n. (15c) 1. A plaintiff's voluntary dismissal ofa
case or of a defendant, without a decision on the merits .
Under the Federal Rules ofCivil Procedure, a volun
tary dismissal is equivalent to a nonsuit. Fed. R. Civ. P.
41(a). -Also termed voluntary discontinuance. [Cases:
Federal Civil Procedure (;:::> 1691; Pretrial Procedure
2. A court's dismissal of a case or of a defen
dant because the plaintiff has failed to make out a legal
case or to bring forward sufficient evidence. -Also
termed involuntary nonsuit; compulsory nonsuit. See
judgment ofnonsuit under JUDGMENT. [Cases: Trial
139.1, 159, 384.] -nonsuit, vb.
"It did not follow [in the 15th-18th centuries], of course,
that the issue in a trial at nisi prius would ever get to the
jury at all, for it might be that the plaintiff would be 'non
suited' on the ground that he had failed to prove something
which was essential to his case or that the case which he
had proved was different from that which he had pleaded."
Geoffrey Radcliffe & Geoffrey The English Legal
System 184 (G.J. Hand & D.J. Bentley 6th ed. 1977).
"Nonsuit ... is equivalent to a demurrer to the evidence
in that, even if all facts that plaintiff presents are true, the
evidence is not, as a matter of law, sufficient to entitle
plaintiff to a judgment. However, a voluntary nonsuit,
unlike a demurrer or a directed verdict which resolves
the action on its merits, may result in another trial of the
cause." 75A Am. Jur. 2d Trial 853 (1991).
non sum informatus (non Sdm in-far-may-tds), n. [Latin
"1 am not informed"] Hist. A type of default judgment
based on a defense attorney's statement that the client
gave no instructions to answer the lawsuit.
nonsupport. (1909) family law. The failure to support a
person for whom one is legally obliged to prOVide, such
as a child, spouse, or other dependent . Nonsupport is
a crime in most states. -Also termed criminal nonsup
port; criminal neglect offamily; abandonment ofminor
children; abandonment ofchildren. Cf. SUPPORT. [Cases:
Child Support (;:::>652.]
nontariffbarrier. An official policy, other than a tariff,
that restricts international trade, esp. by limiting
imports or exports. -Abbr. NTB. Cf. NONTARIFF
MEASURE.
nontariff measure. An official policy, other than a tariff,
that affects international-trade conditions, including a
policy that increases trade as well as one that restricts
it. Abbr. NTM. Cf. NONTARIFF BARRIER.
non tenent insimul (non ten-ant in-sim-dl), n. [Latin
"they do not hold together"] Hist. In a partition action,
the defendant's plea denying a joint tenancy with the
plaintiffin the estate at issue.
non tenuit (non ten-yuu-wit). [Latin] In an action of
replevin, the plaintiff's plea in bar to the defendant's
assertion of a rightful taking of property (avowry),
whereby the plaintiff denies holding the property in the
manner and form alleged. [Cases: Replevin C=64.]
nontenure (non ten-Ydr). Hist. A general denial in a real
action, whereby the defendant denies holding some or
all of the land in question.
nonterm. See NON TERMINUS.
1159 norm
non terminus (non ter-mi-n<3s), n. [Law Latin "not the
end"] Hist. The vacation between two terms ofa court.
-In England, it was also called "the time of days ofthe
hng's peace." -Also termed nonterm; non term.
nontestifying expert. See consulting expert under
EXPERT.
nontrading partnership. See PARTNERSHIP.
nontraditional public forum. See designated public
forum under PUBLIC FORUM.
nonunion, adj. (1863) 1. (Of a person or thing) not
belonging to or affiliated with a labor union <a
nonunion worker> <a nonunion contract>. 2. (Of a
position or belief) not favoring labor unions <she will
not alter her nonunion stance>. 3. (Of a product) not
made by labor-union members <the equipment was of
nonunion manufacture>.
nonuse. (16c) 1. The failure to exercise a right <nonuse
ofthe easement>. 2. The condition ofnot being put into
service <the equipment was in nonuse>. 3. Intellectual
property. See ABANDONMENT (8)-(10).
nonuser. The failure to exercise a right (such as a fran
chise or easement), as a result of which the person
having the right might lose it <the government may
not revoke a citizen's voting right because ofnonuser>.
Cf. USER (1).
non usurpavit (non yoo-s;}r-pay-vit). [Latin "he has not
usurped"] A defendant's denial ofan alleged usurpa
tion of an office or franchise.
non utendo (non yoo-ten-do). [Latin) Roman & Scots
law. By nonuse. -Certain rights (such as some servi
tudes) could be lost through neglect of use.
non valentia agere (non v;}-len-shee-<3 aj-<:I-ree). [Latin]
Inability to sue. See NONABILITY.
nonverbal testimony. See TESTIMONY.
non-vessel-operating common carrier. See CARRIER.
nonvital term. See nonfundamental term under TERM
(2).
nonvoluntary euthanasia. See EUTHANASIA.
nonvoting member. See MEMBER.
nonvoting stock. See STOCK.
non vult contendere (non V<3lt k;}n-ten-d<3-ree). [Latin
"he will not contest it") NO CONTEST.
nonwaiver agreement. Insurance. A contract (supple
menting a liability-insurance policy) in which the
insured acknowledges that the insurer's investiga
tion or defense ofa claim against the insured does not
waive the insurer's right to contest coverage later. Cf.
RESERVATION-OF-RIGHTS LETTER. [Cases: Insurance
C=3120.]
nook of land. Hist. A variable quantity of land, often
12.5 acres.
no-oral-modification clause. (1969) A contractual pro
vision stating that the parties cannot make any oral
modifications or alterations to the agreement. Abbr. NOM clause. See INTEGRATION CLAUSE; ZIPPER CLAUSE.
[Cases: Contracts C=238(2).)
no par. See no-par stock under STOCK.
no-par stock. See STOCK.
no-par-value stock. See no-par stock under STOCK.
no-pass, no-play rule. (1984) A state law requiring
public-school students who participate in extracur
ricular activities (such as sports or band) to maintain
a minimum grade-point average or else lose the privi
lege to participate. [Cases: Schools (;:=:> 164.)
no progress. See WANT OF PROSECUTION.
no recourse. l. The lack of means by which to obtain
reimbursement from, or a judgment against, a person
or entity <the bank had no recourse against the individ
ual executive for collection ofthe corporation's debts>.
2. A notation indicating that such means are lacking
<the bill was indorsed "no recourse">. See nonrecourse
loan under LOAN; WITHOUT RECOURSE.
No Religious Test Clause. See RELIGIOUS TEST CLAUSE.
no-retreat rule. (1973) Criminal law. 1he doctrine that
the victim ofa murderous assault may use deadly force
in self-defense if there is no reasonable alternative to
avoid the assailant's threatened harm. - A majority
ofAmerican jurisdictions have adopted this rule. Cf.
RETREAT RULE. [Cases: Homicide C=798.)
no-right, n.(1913) The absence ofright against another in
some particular respect. - A no-right is the correlative
of a privilege. -Also termed liability.
"A says to B, 'If you will agree to pay me $100 forthis horse
you may have him and you may indicate your agreement by
taking him.' This is a physical fact, called an offer, consist
ing of certain muscular acts of A having certain physical
results in B. The legal relations immediately following are
(in part) as follows: B now has the privilege of taking the
horse and A has norightthat he shall not ...." William
R. Anson, Principles of the Law of Contract 321 (Arthur L.
Corbin ed., 3d Am. ed. 1919).
"'No-right' is sometimes derided as being a purely negative
concept. If a no-right is something that is not a right, the
class of no-rights must, it is said, include elephants. The
answer is that negative terms are often useful as alter
native ways of stating propositions involving negatives.
For instance, the terms 'alien,' 'cold,' and 'dark' are all
negative or privative, because their meaning includes the
idea of the absence of something else. The proposition
that A is an alien means that A is not a British subject; in
the one mode of statement the negative is incorporated in
the noun, whereas in the other it is expressed as a separate
word. Similarly the word 'liberty' is negative, and critics
who attack the concept of no right should logically attack
the concept of liberty also.... [l]iberty means 'no-duty
not.' ... [F]or the sake of clear thinking it is necessary to
give each of the four meani ngs [of right] a separate name.
Words like 'noright' and 'no-duty' may seem uncouth at
first sight, but it is surely a clear and useful statement
to say that 'right' sometimes means 'noduty not.'" John
Salmond, Jurisprudence 240-41 n.(u) (Glanville L. Williams
ed., 10th ed. 1947).
norm. (1821) 1. A model or standard accepted (volun
tarily or involuntarily) by society or other large group,
against which society judges someone or something.
An example ofa norm is the standard tor right or wrong
normal 1160
behavior. 2. An actual or set standard determined by
the typical or most frequent behavior of a group.
basic norm. In the legal theory ofHans Kelsen, the law
from which all the other laws in a society derive .
Kelsen's "pure theory oflaw" maintains that laws are
norms.1berefore, a society's legal system is made up
of its norms, and each legal norm derives its validity
from other legal norms. Ultimately, the validity ofall
laws is tested against the "basic norm," which may be
as simple as the concept that all pronouncements of
the monarch are to be obeyed. Or it may be an elabo
rate system of lawmaking, such as a constitution.
Also termedgrundnorm. See PURE THEORY.
normal, adj. (l5c) 1. According to a regular pattern;
natural <it is normal to be nervous in court>. The
term describes not just forces that are constantly and
habitually operating but also forces that operate peri
odically or with some degree offrequency. In this sense,
its common antonyms are unusual and extraordinary.
2. According to an established rule or norm <it is not
normal to deface statues>. 3. Setting a standard or
norm <a normal curriculum was established in the
schools>.
normal balance. A type of debit or credit balance that
is usu. found in ledger accounts . For example, assets
usu. have debit balances and liabilities usu. have credit
balances.
normal college. See NORMAL SCHOOL.
normalized earnings. See EARNINGS.
normalized financial statement. See FINANCIAL STATE
MENT.
normal law. (1904) The law as it applies to persons who
are free from legal disabilities.
normal market. See CONTANGO (1).
normal mind. (1887) A mental capacity that is similar
to that of the majority of people who can handle life's
ordinary responsibilities.
normal school. A training school for public-school
teachers. Normal schools first appeared in the United
States in the 18005 and were two-year post-high-school
training programs for elementary-school teachers. At
the turn of the century, normal schools expanded into
four-year teaching colleges. Most of these institutions
have developed into liberal arts colleges offering a wider
variety of education and teaching programs. Also
termed normal college. [Cases: Colleg |
developed into liberal arts colleges offering a wider
variety of education and teaching programs. Also
termed normal college. [Cases: Colleges and Universi
ties
Norman French. A language that was spoken by the
Normans and became the official language of English
courts after the Norman Conquest in 1066 . The
language deteriorated into Law French and continued
to be used until the late 17th century. English became
the official language of the courts in 1731.
normative, adj. (1852) Establishing or conforming to a
norm or standard <Rawls's theory describes normative
principles of justice>.
normative jurisprudence. See NATURAL LAW. Norris-La Guardia Act (nor-is la-gwahr-dee-a). A 1932
federal law that forbids federal courts from ruling on
labor policy and that severely limits their power to
issue injunctions in labor disputes . The statute was
passed to curb federal-court abuses of the injunctive
process, to declare the government's neutrality on labor
policy, to curtail employers' Widespread use ofinjunc
tions to thwart union activity, and to promote the use
of collective bargaining to resolve disputes. 29 USCA
101-115. -Also termed Labor Disputes Act; Anti
Injunction Act.
Norroy (nor-oy). English law. The third of the three
Kings at Arms (and the chief herald), whose province
lies on the north side ofthe river Trent. The N orroy's
duties have included the supervision of weddings and
funerals ofnobility. See HERALD.
North American Free Trade Agreement. A 1994 agree
ment between the United States, Canada, and Mexico,
designed to phase out all tariffs and eliminate many
nontariffbarriers (such as quotas) inhibiting the free
trade of goods between the participating nations .
Among other provisions, it set minimum standards
for intellectual-property protection afforded other
members' citizens. Negotiated at the same time as the
GATT talks that produced TRIPs, NAFTA borrowed
from many TRIPs provisions on intellectual-property
protection, as by as protecting computer software and
databases by copyright. While NAFTA incorporates by
reference the Berne Convention standards of intellec
tual-property rights, it exempts the U.S. from recog
nizing Berne's moral rights. -Abbr. NAFTA. [Cases:
Treaties
North Eastern Reporter. A set of regional lawbooks,
part of the West Group's National Reporter System,
containing every published appellate decision from
Illinois, Indiana, Massachusetts, New York, and Ohio,
from 1885 to date . The first series ran from 1885 to
1936; the second series is the current one. -Abbr. N.E.;
N.E.2d.
North Western Reporter. A set of regionallawbooks, part
of the West Group's National Reporter System, con
taining every published appellate decision from Iowa,
Michigan, Minnesota, Nebraska, North Dakota, South
Dakota, and Wisconsin, from 1879 to date . Ihe first
series ran from 1879 to 1941; the second series is the
current one. Abbr. N.W.; N.W.2d.
Northwest Territory. Hist. The first possession of the
United States, being the geographical region south of
the Great Lakes, north of the Ohio River, and east of
the Mississippi River, as designated by the Continen
tal Congress in the late 1700s. This area includes the
present states of Ohio, Indiana, Illinois, Michigan, Wis
consin, and the eastern part of Minnesota.
NOS. abbr. National Ocean Service. See NATIONAL
OCEANIC AND ATMOSPHERIC ADMINISTRATION.
noscitur a sociis (nos-a-tar ay [or ahl soh-shee-is). [Latin
"it is known by its associates"] (I8c) A canon of con
struction holding that the meaning of an unclear word
1161
or phrase should be determined by the words immedi
ately surrounding it. Cf. EJUSDEM GENERIS; EXPRESSIO
UNIUS EST EXCLUSIO ALTERIUS; RULE OF RANK. [Cases:
Statutes 193.]
"The ejusdem generis rule is an example of a broader
linguistic rule or practice to which reference is made by
the Latin tag noscitur a sociis. Words, even if they are not
general words like 'whatsoever' or 'otherwise' preceded
by specific words, are liable to be affected by other words
with which they are associated." Rupert Cross, Statutory
Interpretation 118 (1 976).
nose coverage. See PRIOR-ACTS COVERAGE.
no-setoff certificate. See WAIVER OF DEFENSES.
no-shop provision. A stipulation prohibiting one or
more parties to a commercial contract from pursuing
or entering into a more favorable agreement with a
third party.
nosocomus (nos-<}-koh-m<}s), n. [Greek "an attendant on
the side"] Hist. A person who manages a hospital that
cares for paupers.
no-strike clause. A labor-agreement provision that
prohibits employees from striking for any reason and
establishes instead an arbitration system for resolving
labor disputes.
NOTA. abbr. NATIONAL ORGAN TRANSPLANT ACT.
nota (noh-td), n. [Latin "mark"] Hist. 1. A promissory
note. 2. A brand placed on a person by law.
nota bene (noh-td ben-ee or bee-nee or ben-ay). See
N.B.
notabilis excess us (noh-tab-d-lis ek-ses-ds). [Law Latin]
Hist. A very great excess.
notae (noh-tee), n. pl. [Latin] Hist. Shorthand characters.
See NOTARIUS.
no-talk provision. See confidentiality clause under
CLAUSE.
notarial, adj. (ISc) Of or relating to the official acts ofa
notary public <a notarial seal>. -Also spelled (in Scots
law) notorial. See NOTARY PUBLIC. [Cases: Notaries
6.J
notarial act. (I8c) An official function ofa notary public,
such as placing a seal on an affidavit. See NOTARY
PUBLIC. [Cases: Notaries ~6.)
notarial protest certificate. See PROTEST CERTIFICATE.
notarial record. See JOURNAL OF NOTARIAL ACTS.
notarial register. See JOURNAL OF NOTARIAL ACTS.
notarial seal. See NOTARY SEAL.
notarial will. See WILL.
notario publico. Mexican law. An attorney who has
been licensed for at least three years and is empow
ered to issue judicial opinions, make binding judg
ments in minor cases, mediate disputes, and perform
marriages. There is no equivalent professional status
in the American legal system, and no direct transla
tion ofthe term. The status and duties ofan American
notary public are not comparable to those ofa notario notary seal
publico. -Often shortened to notario. Cf. NOTARY
PUBLIC.
notarius (noh-tair-ee-ds), n. [fro Latin nota "a character
or mark") 1. Roman law. A writer (sometimes a slave)
who takes dictation or records proceedings by short
hand. A notarius was later also called a scriba. 2.
Roman law. An officer ofthe court who takes a magis
trate's dictation by shorthand. Cf. SCRIBA. 3. Hist. An
officer who prepares deeds and other contracts. 4. A
notary or a scribe.
notarize, vb. (Of a notary public) to attest to the authen
ticity of (a Signature, mark, etc.). [Cases: Acknowledg
ment ~8;Notaries
notary public (noh-td-ree), n. (l6c) A person authorized
by a state to administer oaths, certify documents, attest
to the authenticity of signatures, and perform official
acts in commercial matters, such as protesting negotia
ble instruments. Often shortened to notary. -Abbr.
n.p. Cf. NOTARIO PUBLICO. [Cases: Notaries C--::-:. L] PI.
notaries public. -notarize, vb. notarial, adj.
"A notary public is an officer long known to the civil law,
and designated as registrarius, actuarius, or scrivarius."
John Proffatt, A Treatise on the Law Relating to the Office
and Duties ofNotaries Public 1, at 1 Uohn F. Tyler &John
J. Stephens eds., 2d ed. 1892).
"The notary public, or notary, is an official known in nearly
all civilized countries. The office is of ancient origin. In
Rome, during the republic, it existed, the title being rabel
/iones forenses, or personae publicae; and there are records
of the appointment of notaries by the Frankish kings and
the Popes as early as the ninth century. They were chiefly
employed in drawing up legal documents; as scribes or
scriveners they took minutes and made short drafts of
writings, either of a public or a private nature. In modern
times their more characteristic duty is to attest the genu
ineness of any deeds or writings, in order to render the
same available as evidence of the facts therein contained."
Benjamin F. Rex, The Notaries' Manual 1, at 1-2 U.H.
McMillan ed., 6th ed. 1913).
"In jurisdictions where the civilian law prevails, such as
in the countries of continental Europe, a notary public is
a public official who serves as a public witness of facts
transacted by private parties ... and also serves as impar
tiallegal advisor for the parties involved .... In colonial
Louisiana, the notary public had the same rank and dignity
as his continental civilian ancestor .... Although notaries
still constitute a protected profession in present-day Louisi
ana, holding office for life provided they renew their bonds
periodically in compliance with the governing statute, the
importance of their function has diminished over the years
to the point that it has been said that a Louisiana notary is
no longer a truly civilian notary. Indeed, the trained lawyer
is nowadays the Louisiana, and American, counterpart of
the continental civilian notary." Saul Litvinoff, 5 Louisiana
Civil Law Treatise: The Law of Obligations 296-97 (2d ed.
2001).
notary record book. See JOURNAL OF NOTARIAL ACTS.
notary's certificate. A notary's Signed and sealed or
stamped statement attesting to the time and place that
the specified acts and documents were authenticated.
[Cases: Notaries
notary seal. (18c) 1. The imprint or embossment made
by a notary public's seal. [Cases: Notaries ~8.J 2.
A device, usu. a stamp or embosser, that makes an
notation credit 1162
imprint on a notarized document. Also termed
notarial seal.
embossed seal. (1959) 1. A notary seal that is impressed
onto a document, raising the impression above the
surface . An embossed seal clearly identifies the
original document because the seal is only faintly
reproducible. For this reason, this type of seal is
required in some states and on some documents nota
rized for federal purposes. [Cases: Notaries 2.
The embossment made by this seaL
rubber-stamp seal. (1948) I. In most states, a notary
public's official seal, which is ink-stamped onto docu
ments and is therefore photographically reproduc
ible. It typically includes the notary's name, the
state seal, the words "Notary Public," the name of
the county where the notary's bond is filed, and the
expiration date of the notary's commission. [Cases:
Notaries (;:::;8.] 2. 1he imprint made by this seal.
notation credit. (1956) A letter ofcredit specifying that
anyone purchasing or paying a draft or demand for
payment made under it must note the amount of the
draft or demand on the letter. See LETTER OF CREDIT.
[Cases: Banks and Banking C=>191.20.]
note, n. (17c) 1. A written promise by one party (the
maker) to pay money to another party (thepayee) or to
bearer. A note is a two-party negotiable instrument,
unlike a draft (which is a three-party instrument).
Also termed promissory note. Cf. DRAFT (1). [Cases:
Bills and Notes
accommodation note. A note that an accommodat
ing party has signed and thereby assumed secondary
liability for; ACCOMMODATION PAPER. [Cases: Bills
and Notes C:::)49,
approved indorsed note. A note indorsed by a person
other than the maker to provide additional security.
balloon note. A note requiring small periodic payments
but a very large final payment. The periodic
payments usu. cover only interest, while the final
payment (the balloon payment) represents the entire
principal.
banker's note. A promissory note given by a private
banker or an unincorporated banking institution.
banknote. See BANKNOTE.
blue note. A note that maintains a life-insurance policy
in effect until the note becomes due. [Cases: Insur
ance C=>2020, 2027.J
bought note. A written memorandum ofa sale deliv
ered to the buyer by the broker responsible for the
sale.
circular note. See LETTER OF CREDIT.
coal note. His/. A promissory note written according
to a statute that required payment for coal out ofany
vessel in the port ofLondon to be in cash or by prom
issory note containing the words "value received in
coal." Noncompliance with the statute resulted in
a fine of 100. cognovit note. See COGNOVIT NOTE.
collateral note. See secured note.
coupon note. A note with attached interest coupons
that the holder may present for payment as each
coupon matures.
demand note. A note payable whenever the creditor
wants to be paid. See call loan under LOAN.
Bills and Notes C=O129(3).]
exec |
wants to be paid. See call loan under LOAN.
Bills and Notes C=O129(3).]
executed note. A note that has been Signed and deliv
ered. [Cases: Bills and Notes ~54-62.]
floating-rate note. A note carrying a variable interest
rate that is periodically adjusted within a predeter
mined range, usu. every six months, in relation to
an index, such as Treasury bill rates. Also termed
floater. [Cases: Bills and Notes 125; Interest
32.]
hand note. A note that is secured by a collateral note.
installment note. A note payable at regular intervals.
Also termed serial note.
inverse-floating-rate note. A note structured in such a
way that its interest rate moves in the opposite direc
tion from the underlying index (such as the London
Interbank Offer Rate) . Many such notes are
investments because ifinterest rates rise, the
ties lose their value and their coupon ""'lllJlll':~
Also termed inverse floater. [Cases: Interest
joint and several note. A note for which multiple
makers are jointly and severally liable for repayment,
meaning that the payee may legally look to all the
makers, or anyone ofthem, for payment ofthe entire
debt. See joint and several liability under LIABILITY.
[Cases: Bills and Notes ~120.]
joint note. A note for which multiple makers are jOintly,
but not severally, liable for repayment, meaning that
the payee must legally look to all the makers together
for payment ofthe debt. See joint liability under LIA
BILITY. [Cases: Bills and Notes (;:::; 120.]
mortgage note. A note evidencing a loan for which real
property has been offered as security. [Cases: Mort
gages~14.]
negotiable note. See NEGOTIABLE INSTRUMENT.
nonrecourse note. A note that may be satisfied upon
default only by means ofthe collateral securing the
note, not bythe debtor's other assets. Cf. recourse note.
[Cases: Bills and Notes Secured Transactions
(;:::;227,240.)
note ofhand. See promissory note.
post note. See time note.
premium note. A promissory note given by an insured
to an insurance company for part or all of the
premium.
promissory note. (18c) An unconditional written
promise, signed by the maker, to pay absolutely and in
any event a certain sum ofmoney either to, or to the
order of, the bearer or a designated person. Also
1163 not guilty
termed noie of hand. [Cases: Bills and Notes
28-53.)
recourse note. A note that may be satisfied upon default
by pursuing the debtor's other assets in addition to
the collateral securing the note. Cf. nonrecourse note.
[Cases: Secured Transactions C=>227, 240.)
reissuable note. A note that may again be put into cir
culation after having once been paid.
renewal note. A note that continues an obligation that
was due under a prior note. [Cases: Bills and Notes
C:::> 138, 141.)
sale note. A broker's memorandum on the terms of a
sale. given to the buyer and seller.
savings note. A short-term, interest-bearing paper
issued by a bank or the U.S. government.
secured note. A note backed by a pledge of real or
personal property as collateral. Also termed col-
la teral note.
self-canceling installment note. A debt obligation
that is automatically extinguished at the creditor's
death. Any remaining balance on the note becomes
uncollectible. Self-canceling notes are typically used
in estate planning. -Abbr. SCIN. [Cases: Internal
Revenue (::::-'4159(7).]
serial note. See installment note.
sold note. A written memorandum of sale delivered to
the seller by the broker responsible for the sale, and
usu. outlining the terms of the sale. See CONFIRMA
TION SLIP.
stock note. A note that is secured by securities. such as
stocks or bonds.
tax-anticipation note. A short-term obligation issued
by state or local governments to finance current
expenditures and that usu. matures once the local
government receives individual and corporate tax
payments. -Abbr. TAN. [Cases: Municipal Corpo
rations C=>908.]
time note. A note payable only at a specified time and
not on demand. -Also termed post note. [Cases: Bills
and Notes 129.]
treasury note. See TREASURY NOTE.
unsecured note. A note not backed by collateral.
2. A scholarly legal essay shorter than an article and
restricted in scope, explaining or criticizing a par
ticular set of cases or a general area of the law, and
usu. written by a law student for publication in a law
review. -Also termed comment; lawnote. Cf. ANNOTA
TION. 3. A minute or memorandum intended for later
reference; MEMORANDUM (1).
broker's note. A memorandum, usu. one authorizing a
broker to act as a principal's agent, that is prepared by
the broker and a copy given to the principal. [Cases:
Brokers 12.]
note, vb. (13c) 1. To observe carefully or with particu
larity <the defendant noted that the plaintiff seemed nervous>. 2. To put down in writing <the court reporter
noted the objection in the record>. 3. Archaic. To brand
<as punishment, the criminal was noted>. See NOTA.
note broker. See BROKER.
note of a fine. Hist. English law. A step in the judicial
process for conveying land, consisting of a chirogra
pher's brief of the proceedings before the documents
of conveyance are engrossed. Also termed abstract
ofafine. See FINE (1).
note of allowance. English law. A master's note, upon
receiving a party's memorandum of an error oflaw in
a case, allowing error to be asserted.
note of hand. See promissory note under NOTE (1). PI.
notes of hand.
note ofprotest. A notary's preliminary memo, to be for
malized at a later time, stating that a negotiable instru
ment was neither paid nor accepted upon presentment.
See PROTEST. [Cases: Bills and Notes (::::-"408.J
note payable. See account payable under ACCOUNT.
note receivable. See account receivable under
ACCOUNT.
no-term lease. Oil & gas. A mineral lease with a drilling
delay rental clause that allows the lessee to extend the
primary term indefinitely by paying delay rentals .
No-term leases were common at the end of the 19th
century. Some courts refused to enforce them on the
ground that they created a mere estate at will, termi
nable at the will ofeither the lessor or the lessee. Other
courts upheld them, but with the stipulation that the
lessee had an obligation to either test or release the lease
within a reasonable time. [Cases: Mines and Minerals
C=>73.5,78.1(3).]
note verbal (noht vilr-bdl). Int'llaw. An unSigned dip
lomatic note, usu. written in the third person, that
sometimes accompanies a diplomatic message or note
of protest to further explain the country's position or
to request certain action. -Also spelled note verbale
(vair-bahl).
not-for-profit corporation. See nonprofit corporation
under CORPORATION.
not found. Words placed on a bill ofindictment, meaning
that the grand jury has insufficient evidence to support
a true bill. See IGNORAMUS; NO BILL. Cf. TRUE BILL.
not guilty. (15c) 1. A defendant's plea denying the crime
charged. [Cases: Criminal Law C=>299.] 2. A jury
verdict acquitting the defendant because the prosecu
tion failed to prove the defendant's guilt beyond a rea
sonable doubt. Cf. INNOCENT.
notguilty by reason ofinsanity. (1844) 1. A not -guilty
verdict, based on mental illness, that usu. does not
release the defendant but instead results in com
mitment to a mental institution. [Cases: Criminal
Law (::::-;47; Homicide C=>817.) 2. A criminal defen
dant's plea of not guilty that is based on the insanity
defense. -Abbr. NGRI. Also termed not guilty on
the ground ofinsanity. See INSANITY DEFENSE. [Cases:
Criminal LawC:::>286.5.J
1164 not-guilty plea
3. Common-law pleading. A defendant's plea denying
both an act of trespass alleged in a plaintiff's declara
tion and the plaintiff's right to possess the property
at issue.
"In trespass, whether to person or property, the general
issue is 'not guilty.' It operates in the first place as a denial
that the defendant committed the act of trespass alleged,
to wit, the application of force to the plaintiff's person, the
entry on his land, or the taking or damages of his goods.
It also denies the plaintiff's possession, title, or right of
possession of the land or goods." Benjamin J Shipman,
Handbook of Common-Law Pleading 170, at 307-08
(Henry Winthrop Ballantine ed., 3d ed. 1923).
not guilty by statute. Hist. Under certain acts of Par
liament, the pleading form for a defendant's general
denial in a civil action . This pleading form allowed
a public officer to indicate action under a statute.
The officer had to write the words "by statute" in the
margin along with the year, chapter, and section of
the applicable statute, and the defendant could not file
any other defense without leave ofcourt. The right to
plead "not guilty by statute" was essentially removed
by the Public Authorities Protection Act of 1893.
4. A general denial in an ejectment action. [Cases:
Ejectment C=:=>68.]
''The general issue in ejectment is not guilty. This plea
operates as follows: (l) As a denial of the unlawfulness of
the withholding; i.e., of the plaintiff's title and right of pos
session. (2) All defenses in excuse or discharge, including
the statute of limitations, are available under the general
issue in ejectment." Benjamin j. Shipman, Handbook of
Common-Law Pleading 188, at 333 (Henry Winthrop Bal
lantine ed., 3d ed. 1923).
not-guilty plea. See PLEA (1).
nothous (noh-thds), adj. Archaic. Spurious; illegiti
mate.
nothus (noh-thds), n. [Latin fro Greek nothos "false"]
Roman law. An illegitimate child; one of base birth.
Ifthe child's mother was a Roman citizen, the child was
also a Roman citizen. -Also termed spurius.
notice, n. (16c) 1. Legal notification required by law or
agreement, or imparted by operation oflaw as a result
of some fact (such as the recording of an instrument);
definite legal cognizance, actual or constructive, ofan
existing right or title <under the lease, the tenant must
give the landlord written notice 30 days before vacating
the premises> . A person has notice ofa fact or condi
tion ifthat person (1) has actual knowledge ofit; (2) has
received information about it; (3) has reason to know
about it; (4) knows about a related fact; or (5) is con
sidered as having been able to ascertain it by checking
an official filing or recording. [Cases: Constitutional
Law C=:=>251.6, 309; Notice C=:=> 1.] 2. The condition
of being so notified, whether or not actual awareness
exists <all prospective buyers were on notice of the
judgment lien>. Cf. KNOWLEDGE. [Cases: Sales C=:=>
235; Vendor and Purchaser C=:=>225.] 3. A written or
printed announcement <the notice of sale was posted
on the courthouse bulletin board>.
actual notice. (18c) 1. Notice given directly to, or
received personally by, a party. -Also termed express notice. [Cases: Notice C=:=> 1.5.] 2. Property. Notice
given by open possession and occupancy of real
property. [Cases: Vendor and Purchaser C=:=>232.]
adequate notice. See due notice.
commercial-law notice. Under the UCC, notice of a
fact arising either as a result of actual knowledge or
notification ofthe fact, or as a result ofcircumstances
under which a person would have reason to know of
the fact. UCC 1-201(25). [Cases: Sales C=:=>235.]
constructive notice. (18c) Notice arising by presump
tion of law from the existence of facts and circum
stances that a party had a duty to take notice of, such
as a registered deed or a pending lawsuit; notice
presumed by law to have been acquired by a person
and thus imputed to that person. -Also termed legal
notice. [Cases: Notice C=:=>4; Vendor and Purchaser
C=:=>229.]
direct notice. (17c) Actual notice ofa fact that is brought
directly to a party's attention. -Also termed positive
notice.
due notice. (17c) Sufficient and proper notice that is
intended to and likely to reach a particular person or
the public; notice that is legally adequate given the
particular circumstance. -Also termed adequate
notice; legal notice.
express notice. (18c) Actual knowledge or notice given
to a party directly, not arising from any inference,
duty, or inquiry. See actual notice. [Cases: Notice C=:=>
2.]
fair notice. (17c) 1. Sufficient notice apprising a litigant
ofthe opposing party's |
fair notice. (17c) 1. Sufficient notice apprising a litigant
ofthe opposing party's claim. 2. The requirement that
a pleading adequately apprise the opposing party of
a claim . A pleading must be drafted so that an
opposing attorney of reasonable competence would
be able to ascertain the nature and basic issues ofthe
controversy and the evidence probably relevant to
those issues. 3. FAIR WARNING. [Cases: Federal Civil
Procedure C=:=>673; Pleading C=:=>48.]
immediate notice. 1. Notice given as soon as possible.
2. More commonly, and esp. on notice of an insur
ance claim, notice that is reasonable under the cir
cumstances. [Cases: Insurance ~~3154.]
implied notice. (18c) Notice that is inferred from facts
that a person had a means of knowing and that is
thus imputed to that person; actual notice offacts or
circumstances that, if properly followed up, would
have led to a knowledge of the particular fact in
question. -Also termed indirect notice; presump
tive notice. [Cases: Notice C=:=>3.]
imputed notice. (1831) Information attributed to a
person whose agent, having received actual notice
of the information, has a duty to disclose it to that
person. For example, notice of a hearing may be
imputed to a witness because it was actually disclosed
to that witness's attorney ofrecord. [Cases: Principal
and Agent C=:=> 177(1).]
indirect notice. See implied notice.
1165
inquiry notice. (1945) Notice attributed to a person
when the information would lead an ordinarily
prudent person to investigate the matter further;
esp., the time at which the victim of an alleged secu
rities fraud became aware of facts that would have
prompted a reasonable person to investigate. [Cases:
Notice <>:)6; Vendor and Purchaser (;::::;229.]
judicial notice. See JlJDICIAL NOTICE.
legal notice. 1. See constructive notice. 2. See due
notice.
notice by publication. See public notice.
personal notice. (17c) Oral or written notice, according
to the circumstances, given directly to the affected
person.
positive notice. See direct notice.
presumptive notice. See implied notice.
public notice. (16c) Notice given to the public or
persons affected, usu. by publishing in a newspaper of
general circulation . This notice is usu. required, for
example, in matters of public concern. Also termed
notice by publication. [Cases: Notice
reasonable notice. Notice that is fairly to be expected or
required under the particular circumstances.
record notice. (1855) Constructive notice of the contents
of an instrument, such as a deed or mortgage, that
has been properly recorded. [Cases: Vendor and Pur
chaser (:='231.]
short notice. Notice that is inadequate or not timely
under the circumstances.
4. Intellectual property. A formal sign attached to
items that embody or reproduce an intellectual
property right. Notice of patent is made by placing
the word "patent" Cor its abbreviation, "pat.") and the
item's patent number on an item made by a patentee
or licensee. There are three statutory notice forms for
U.S. trademark and servicemark registration. The most
common is the symbol with the letter R C} but "Reg.
U.S. Pat. & Tm. Off." or "Registered in U.S. Patent and
Trademark Office" affords the same legal protection.
A copyright notice also takes several forms. The first
part may be the symbol with the letter C in a circle
(), or the word "Copr." or "Copyright." It must be
followed by the copyright owner's name and the year
that the work was first published. Informal signs, such
as "Brand," "TM," "Trademark," "SM," and "Service
Mark," adjacent to words or other symbols considered
to be protectable marks are not legal notices of exclusive
rights. [Cases: Patents Trademarks C::c 1250.]
5. Parliamentary law. A meeting's published call. See
call ofa meeting under CALL (1). 6. Parliamentary law.
A formal statement that certain business may come
before a meeting, usu. made at an earlier meeting or
published with the call of the meeting that will consider
the business, and made as a prerequisite to the busi
ness's consideration. See call ofa meeting under CALL
(1). Also termed previous notice. notice of allowability
notice, vb. (15c) 1. To give legal notice to or of <the plain
tiff's lawyer noticed depositions of all the experts that
the defendant listed>. 2. To realize or give attention to
<the lawyer noticed that the witness was leaving>.
notice act. See NOTICE STATlJTE.
notice-and-comment period. Administrative law. The
statutory time frame during which an administrative
agency publishes a proposed regulation and receives
public comment on the regulation. _ The regulation
cannot take effect until after this period expires.
Often shortened to comment period. [Cases: Admin
istrative Law and Procedure C~J394,395.]
notice-and-comment rulemaking. See informal rule-
making under RULEMAKING.
notice-based quorum. See QUORlJM.
notice by publication. See public notice under NOTICE.
notice doctrine. (1924) The equitable doctrine that when
a new owner takes an estate with notice that someone
else had a claim on it at the time of the transfer, that
claim may still be asserted against the new owner even
ifit might have been disregarded at law. -Also termed
doctrine ofnotice.
notice filing. The perfection of a security interest under
Article 9 of the DCC by filing only a financing state
ment, as opposed to a copy or abstract of the security
agreement. .1be finanCing statement must contain (1)
the debtor's signature, (2) the secured party's name and
address, (3) the debtor's name and mailing address, and
(4) a description of the types of, or items of, collateraL
[Cases: Secured Transactions <8=>92.]
notice of abandonment. 1. The formal notification that
an action will no longer be pursued, such as notice from
a plaintiff to a defendant that litigation will be non
suited. 2. Property. A formal announcement, usu. in
writing and recorded, that a person is relinquishing a
claim to personal or real property. 3. Patents. A written
declaration from the United States Patent Office to a
patent applicant that the application has been termi
nated because the applicant failed to pursue prosecu
tion. 4. Construction law. A builder's or contractor's
announcement that work on unfinished property is
being discontinued. See ABANDONMENT.
notice-of-alibi rule. (1969) The principle that, upon
written demand from the government, a criminal
defendant who intends to call an alibi witness at trial
must give notice of who that witness is and where the
defendant claims to have been at the time ofthe alleged
offense . The government is, in turn, obligated to give
notice to the defendant of any witness it intends to call
to rebut the alibi testimony. See Fed. R. Crim. P. 12.1.
[Cases: Criminal Law <8=>629(9).]
notice ofallowability. Patents. Notification from the U.S.
Patent and Trademark Office that at least one claim in a
patent application has been approved on their merits.
This notice is followed by the Notice of Allowance.
The notice may also be issued if at least one claim is
allowable but the application is under a secrecy order.
1166 notice of allowance
It may include examiner's amendments incorporating
some formal changes. [Cases: Patents C=:::> 104.]
notice of allowance. 1. Patents. The formal notification
from the u.s. Patent and Trademark Office that a patent
application has been approved and that a patent can be
issued. The patent itself is not issued until the appli
cant has paid the issue fee. [Cases: Patents 104.]
2. Trademarks. The formal notification from the U.S.
Patent and Trademark Office that a trademark may be
placed on the Principal Register if it is actually used
in commerce.
notice of appeal. (IBc) A document filed with a court
and served on the other parties, stating an intention to
appeal a trial court's judgment or order . In most juris
dictions, filing a notice of appeal is the act by which the
appeal is perfected. For instance, the Federal Rules of
Appellate Procedure provide that an appeal is taken
by filing a notice ofappeal with the clerk of the district
court from which the appeal is taken, and that the clerk
is to send copies of the notice to all the other parties'
attorneys, as well as the court ofappeals. Fed. R. App.
P. 3(a), (d). Also termed claim ofappeal. See APPEAL.
Appeal and Error (~396-430; Criminal Law
lOBI; Federal Courts G:::)665.1.]
notice of appearance. (1844) 1. Procedure. A party's
written notice filed with the court or oral announce
ment on the record informing the court and the other
parties that the party wants to participate in the case.
[Cases: Appearance C=:::>6; Federal Civil Procedure
C=:::>561.j2. Bankruptcy. A written notice filed with the
court or oral announcement in open court by a person
who wants to receive all pleadings in a particular case.
This notice is usu. filed by an attorney for a creditor
who wants to be added to the official service list. 3. A
pleading filed by an attorney to notify the court and
the other parties that he or she represents one or more
parties in the lawsuit. -Abbr. NOA.
notice of completion. Construction law. A written and
recorded announcement that a building project is
finished, thereby limiting the time for filing mechanic's
liens against the property . The time for filing a lien
begins to run when the notice of completion is filed.
[Cases: Mechanics' Liens C=:::> 132(4).]
notice ofcopyright. See COPYRIGHT NOTICE.
notice ofdeficiency. See NINETY-DAY LETTER.
notice of dishonor. (1804) Notice to the indorser of
an instrument that acceptance or payment has been
refused. This notice -along with presentment and
actual dishonor -is a condition ofan indorser's sec
ondary liability. UCC 3-503(a). Also termed cer
tificate ofprotest; certificate ofdishonor. [Cases: Bills
and Notes C=:::>393, 411.1
notice ofincomplete application. Patents. A notice sent
to the applicant by the U.S. Patent and Trademark Office
when a patent application lacks a required document or
the filing fee. The applicant generally has two months
to complete the application, with an extension available upon payment ofa surcharge. [Cases: Patents
104.)
notice oflis pendens. See LIS PENDENS (3).
notice ofmotion. (lSc) Written certification that a party
to a lawsuit has filed a motion or that a motion will
be heard or considered by the court at a particular
time. Under the Federal Rules of Civil Procedure,
the requirement that a motion be made in writing is
fulfilled ifthe motion is stated in a written notice of the
hearing on the motion. Also, the courts in most juris
dictions require all motions to include a certificate, usu.
referred to as a certificate of service, indicating that the
other parties to the suit have been given notice of the
motion's filing. Notice ofany hearing or other submis
sion of the motion must usu. be provided to all parties
by the party requesting the hearing or submission. Fed.
R. Civ. P. 5(d), 7(b)(l); Fed. R. Civ. P. Form 19. [Cases:
Federal Civil Procedure C=:::>921; Motions IB.1.]
notice ofnonresponsibility. Construction law. A written
disclaimer that, ifposted conspicuously and recorded,
relieves a property owner from liability for work or
materials used on the property without the owner's
authorization . It protects an owner against mechan
ic's liens that could arise when repairs or improvements
are made by a tenant or other person in possession.
[Cases: Mechanics' Liens C'~7S.]
notice of orders or judgments. (1854) Written notice
of the entry ofan order or judgment, proVided by the
court clerk or one of the parties . Notice ofa judgment
is usu. provided by the clerk of the court in which the
judgment was entered. Ifthe court does not provide
notice, a party is usu. required to provide it. Under the
Federal Rules ofCivil Procedure and the Federal Rules
of Criminal Procedure, the clerk is required to provide
immediate notice ofany order or judgment to any party
to the case who is not in default. Fed. R. Civ. P. 77(d);
Fed. R. Crim. P. 49(c). [Cases: Federal Civil Procedure
,~~'/.n.rn:Judgment C=:::>276; Motions
notice of pendency. See LIS PENDENS (3).
notice of prior-art references. Patents. Notification
from a patent examiner of the previously issued patents
used in rejecting one or more ofthe applicant's claims.
[Cases: Patents G=>108.]
notice of protest. 1. A statement, given usu. by a
notary public to a drawer or indorser of a negotiable
instrument, that the instrument was neither paid
nor accepted; information proVided to the drawer or
indorser that protest was made for nonacceptance or
nonpayment of a note or bill. See PROTEST (2). [Cases:
Bills and Notes G=40B.] 2. A shipowner's or crew's
declaration under oath that damages to their vessel or
cargo were the result of perils of the sea and that the
shipowner is not liable for the damages. See PERIL OF
THE SEA.
notice of removal. (1892) The pleading by which the
defendant removes a case from state court to federal |
.
notice of removal. (1892) The pleading by which the
defendant removes a case from state court to federal
court. A notice of removal is filed in the federal
district court in the district and division in which the
1167
suit is pending. The notice must contain a short and
plain statement of the grounds for removal and must
include a copy ofall process, pleadings, and orders that
have been served on the removing party while the case
has been pending. The removing party must also notify
the state court and other parties to the suit that the
notice of removal has been filed. A notice of removal
must be filed, if at all, within 30 days after the defen
dant is served with process in the suit. 28 {JSCA 1446;
Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526
U.S. 344, 119 S.Ct. 1322 (1999). [Cases: Removal of
Cases C~86, 87.}
notice of trial. (17c) A document issued by a court
informing the parties ofthe date on which the lawsuit
is set for trial. _ While the court typically proVides the
notice to all parties, it may instead instruct one party
to send the notice to all the others. [Cases: Federal Civil
Procedure 1966; Trial (:=>6.}
notice pleading. See PLEADING (2).
notice-prejudice rule. A doctrine barring an insurer
from using late notice as a reason to deny an insured's
claim unless the insurer can show that it was prejudiced
by the untimely notice. [Cases: Insurance C:::>3168.J
notice-race statute. See RACE-NOTICE STATUTE.
notice statute. (1864) A recording act providing that
the person with the most recent valid claim, and who
purchased without notice of an earlier, unrecorded
claim, has priority. _ About halfthe states have notice
statutes. Also termed notice act. Cf. RACE STATUTE;
RACE-:l/OTICE STATUTE. [Cases: Vendor and Purchaser
(:::::)2 3 L]
notice to admit. See REQUEST FOR ADMISSION.
notice to all the world. A general public announcement
regarding a lawsuit, esp. to persons within the jurisdic
tion where a lawsuit is pending.
notice to appear. (17c) A summons or writ by which a
person is cited to appear in court. -This is an informal
phrase sometimes used to refer to the summons or
other initial process by which a person is notified ofa
lawsuit. The Federal Rules of Civil Procedure require
the summons to state that the defendant must appear
and defend within a given time and that failure to do
so will result in a default judgment. Fed. R. Civ. P. 4(a).
See PROCESS; SUMMONS; DEFAULT JUDGMENT; NOTICE
TO PLEAD.
notice to creditors. Bankruptcy. A formal notice to credi
tors that a creditors' meeting will be held, that proofs of
claim must be filed, or that an order for re1iefhas been
granted. [Cases: Bankruptcy (:=>2131.]
notice to pay rent or quit. See KOTICE TO QUIT.
notice to plead. (ISc) A warning to a defendant, stating
that failure to file a responsive pleading within a pre
scribed time will result in a default judgment. -1he
Federal Rules ofCivil Procedure require the summons
to notify the defendant that failure to appear and
defend within a prescribed time will result in a default
judgment. Fed. R. Civ. P. 4(a). See PROCESS; SUMMONS; notoriety
DEFAULT JUDGMENT; NOTICE TO APPEAR. [Cases:
Pleading (:=>83; Process (:=>33.]
notice to produce. See REQUEST FOR PRODUCTION.
notice to quit. (18c) 1. A landlord's written notice
demanding that a tenant surrender and vacate the
leased property, thereby terminating the tenancy.
[Cases: Landlord and Tenant (:=>94, 116(2), 116(5),
120(2).] 2. A landlord's notice to a tenant to pay any
back rent within a specified period (often seven days)
or else vacate the leased premises. -Also termed notice
to pay rent or quit.
notification. (I5c) 1. Int'llaw. A formal announcement
ofa legally relevant fact, action, or intent, such as notice
of an intent to withdraw from a treaty. 2. NOTICE. -A
person receives notification ifsomeone else (1) informs
the person of the fact or of other facts from which the
person has reason to know or should know the fact, or
(2) does an act that, under the rules applicable to the
transaction, has the same effect on the legal relations
ofthe parties as the acquisition ofknowledge. Restate
ment ofAgency 9(2).
notify. vb. (l4c) 1. To inform (a person or group) in
writing or by any method that is understood <I notified
the court ofthe change in address>. 2. Archaic. To give
notice of; to make known <to notify the lawsuit to all
the defendants>. See NOTICE.
noting protest. See PROTEST (2).
not in order. See OUT OF ORDER (1).
notio (noh-shee-oh), n. [fr. Latin noscere "to know"]
1. Roman law. An investigation of a case by a magis
trate. 2. Hist. The authority of a judge to try a case. PI.
notiones (noh-shee-oh-neez).
notitia (noh-tish-ee-a), n. [Latin "knowledge"]l. Roman
law. Knowledge; information. -This term carried over
for a time into English practice. 2. Roman law. A list;
register; catalogue . The Notitia Dignitatum (dig-ni
tay-tam) was a list of the high offices in the Eastern
and Western parts of the empire, complied in the late
fourth or early fifth century A.D. 3. Hist. Notice. 4. A
list ofecclesiastical sees.
not law. A judicial decision regarded as wrong by the
legal profession.
"Even when it is not possible to point out any decision
that affects the point in question in anyone of the ways
enumerated, it sometimes happens that the profeSSion has
grown to ignore the old decision as wrong or obsolete: and
though this does not happen often, when it does happen,
the old deCision is very likely not to be followed in case the
point is squarely raised again. This is one of the instances
in which lawyers rather mystically, though soundly, say that
a decision is 'not law,'" William M. Lile et aI., BriefMaking
and the Use ofLaw Books 329 (3d ed. 1914).
notorial. See NOTARIAL.
notoriety. (16c) 1. The state ofbeing generally, and often
unfavorably, known and spoken of <the company exec
utive achieved notoriety when she fled the country to
. avoid paying taxes>. 2. A person in such a state <the
i notoriety gave a rare interview>.
notorious, adj. (15c) 1. Generally known and spoken of,
usu. unfavorably. 2. (Of the possession ofproperty) so
conspicuous as to impute notice to the true owner.
Also termed (in sense 2) open and notorious. See
ADVERSE POSSESSION. [Cases: Adverse Possession (;:::;
30.]
notorious cohabitation. See COHABITATION.
notorious insolvency. Scots law. A bankruptcy; the stage
ofinsolvency in which the debtor has publicly acknowl
edged insolvency under the statute . This stage is usu.
followed by sequestration, which is notorious insol
vency coupled with the appointment of a trustee for
creditors. -Also termed notour bankruptcy.
"Bankruptcy, according to the law of Scotland, is public
or notorious insolvency. When a debtor in an obligation
cannot fulfil his obligation as undertaken ... a position
which constitutes insolvency -and makes public acknowl
edgment, in manner determined by statute, of his inabil
ity, the status or condition of bankruptcy has arisen, and
the insolvent debtor is, in the language of the statutes, a
'notour' bankrupt .... The law of notour bankruptcy is
mainly statutory. Legislation has fixed the circumstances
which constitute the status, and determined all the most
important results." George Watson, Bel/'s Dictionary and
Digest of the Law ofScotland 78 (3d ed. 1882).
notorious possession. See POSSESSION.
not otherwise indexed by name. A phrase used in
shipping and tariff construction, usu. to show a classi
fication ofsomething generally rather than specifically.
For example, a shipment ofaircraft and boat engines
merely labeled "other articles" is not otherwise indexed
by name. -Abbr. NOlBN. [Cases: Carriers (;:::; 189.]
notour bankruptcy. See NOTORIOUS INSOLVENCY.
not possessed. Common-law pleading. In an action in
trover, the defendant's plea denying possession of the
articles allegedly converted. See TROVER.
not proven. An archaic jury verdict -now used only in
Scots criminal law -equivalent in result to not guilty,
but carrying with it a strong suspicion ofguilt not fully
proved. -Also termed Scotch verdict.
not satisfied. A form of return by a sheriff or constable,
on a writ ofexecution, indicating only that the amount
due on a judgment was not paid . A general return of
this type is usu. viewed as technically deficient because
it does not state why the writ was not satisfied. Cf.
NULLA BONA. [Cases: Execution (;:::;334.]
not sufficient funds. (1845) The notation of dishonor
(of a check) indicating that the drawer's account does
not contain enough money to cover payment. -Abbr.
NSF. -Also termed insufficient funds.
notwithstanding, prep. (15c) Despite; in spite of <not
withstanding the conditions listed above, the landlord
can terminate the lease if the tenant defaults>.
n.o.v. abbr. NON OBSTANTE VEREDICTO.
nova causa interveniens. See intervening cause under
CAUSE (1).
nova causa obligationis (noh-vd kaw-zd ahb-li-gay-shee
oh-nis). [Latin] Hist. A new ground of obligation. nova custuma (noh-vd kds-t[y]d-md), n. [Law Latin
"new custom"] Hist. A tax; an imposition. Cf. ANTIQUA
CUSTUMA.
nova debita (noh-vd deb-i-td). [Latin] Scots law. New
debts, as distinguished from preexisting ones.
"A security granted by a debtor within sixty days of his
bankruptcy for a debt contracted before that period is
reducible as a fraudulent preference. But security or
payment granted in consideration of a novum debitum
a debt presently contracted -is not reducible although
granted within the sixty days." John Trayner, Trayner's Latin
Maxims 402 (4th ed. 1894).
novae narrationes (noh-vee nd-ray-shee-oh-neez), n.
[Law Latin "new counts or tales"] Hist. A collection of
pleading forms published during the reign of Edward
III.
novalia (noh-vay-Iee-d). [Law Latin "new lands" or
"newly tilled land"] Scots law. Land newly cultivated.
Exemptions from paying teinds, or tithes, were some
times granted for novalia.
nova statuta (noh-vd Std-t[y]oo-td), n. pI. [Law Latin]
Hist. New statutes . This term refers to the statutes
passed beginning with the reign of Edward III. Cf.
VETERA STATUTA.
novation (noh-vay-shdn), n. (16c) 1. The act of sub
stituting for an old obligation a new one that either
replaces an existing obligation with a new obligation
or replaces an original party with a new party. A
novation may substitute (1) a new obligation between
the same parties, (2) a new debtor, or (3) a new creditor.
2. A contract that (1) immediately discharges either a
previous contractual duty or a duty to make compensa
tion, (2) creates a new contractual duty, and (3) includes
as a party one who neither owed the previous duty nor
was entitled to its performance. -Also termed substi
tuted agreement; (Scots law) innovation.; (Roman law)
novatio (noh-vay-shee-oh). See STIPULATIO AQUILI
ANA; substituted contract under CONTRACT; ACCORD
(2). [Cases: Novation l.] -novate (noh-vayt or
noh-vayt), vb. -novatory (noh-vd-tor-ee), adj.
"Novation is the emerging and transfer of a prior debt into
another obligation either civil or natural, that is, the con
stitution of a new obligation in such a way as to destroy a
prior one." Ulpian, D.46.2.1 pro
''The only way in which it is possible to transfer contractual
duties to a third party is by the process of novation, which
requires the consent of the other party to the contract. In
fact novation really amounts to the extinction of the old
obligation, and the creation of a new one, rather than to
the transfer of the obligation from one person to another.
Thus if B owes A 100, and C owes B the same amount, B
cannot transfer to C the legal duty of paying his debt to A
without A's consent. But ifA agrees to accept C as a debtor
in place of B, and if C agrees to accept A as his creditor in
place of B, the three parties may make a tripartite agree
ment to this effect, known as novation. The effect of this
is to extinguish B's liability to A and create a new liability
on the part of c." P.S. Atiyah, An Introduction to the Law of
Contract 283 (3d ed. 1981).
"The word 'novation' is used in a variety of senses. Courts
frequently use it as synonymous with 'substit |
"The word 'novation' is used in a variety of senses. Courts
frequently use it as synonymous with 'substituted contract.'
Most academic writers and both contracts restatements,
however, restrict its use to describe a substituted contract
involving at least one obligor or obligee who was not a
party to the original contract .... The development of a
separate category under the rubric 'novation' is doubtless
traceable to problems of consideration formerly thought
to be present in such contracts because of the former
common law rule that consideration must be supplied by
the promisee. This rule has long been laid to rest almost
everywhere." John D. Calamari &Joseph M. Perillo, The Law
of Contracts 11-8, at 444-45 (3d ed. 1987).
objective novation. Civil law. A novation involving the
substitution ofa new obligation for an old one. [Cases:
Novation (;::::>4.]
subjective novation. Civil law. A novation involving the
substitution of a new obligor for a previous obligor
who has been discharged by the obligee.
novel assignment. See new assignment under ASSIGN
MENT (7).
novel disseisin (nov-al dis-see-zin), n. A recent dissei
sin. See DISSEISIN; assize ofnovel disseisin under ASSIZE
(8).
Novellae (m-vel-ee). See NOVELS.
Novellae Constitutiones. See NOVELS.
Novellae Leonis (n<l-vel-ee lee-oh-nis), n. [Latin "novels
of Leo"] A collection of 113 ordinances issued by
Emperor Leo from A.D. 887-893.
Novels. A collection of 168 constitutions issued by the
Roman emperor Justinian and his immediate succes
sors. Taken together, the Novels make up one offour
component parts of the Corpus Juris Civilis. Also
termed Novellae; Novellae Constitutiones. See CORPUS
JURIS CIVILIS.
novelty. (14c) 1. Trade secrets. The newness of informa
tion that is generally unused or unknown and that
gives its owner a competitive advantage in a business
field. In the law of trade secrets, novelty does not
require independent conception or even originality.
A rediscovered technique with marketable applica
tions can qualify as a novelty and be protected as a
trade secret. [Cases: Antitrust and Trade Regulation
(;::::>413.]2. Patents. Newness of an invention both in
form and in function or performance; the strict statu
tory requirement that this originality be demonstrated
before an invention is patentable. Proving novelty is
one purpose of the rigorous and expensive examination
process. Ifthe invention has been previously patented,
described in a publication, known or used by others, or
sold, it is not noveL 35 USC A 102. Cf. NONOBVIOUS
NESS. [Cases: Patents
"Although the statute uses the words 'not known,' these
are not to be taken literally. Novelty consists primarily in
the invention not having been used by others in the United
States or patented or described in any printed publication
in this or any foreign country." Roger Sherman Hoar, Patent
Tactics and the Law 36-37 (3d ed. 1950).
absolute novelty. Patents_ The rule in most countries,
but not in the United States, that an inventor must
always file a patent application before the inven
tion is publicly used, placed on sale, or disclosed.
Under U.S. law, an inventor is given a one-year grace
period beginning on the date of any public use,
sale, offer of sale, or publication by the inventor or the inventor's agent in which to file a patent appli
cation. After that, the patent is barred. Canada and
Mexico also give the first inventor or the inventor's
assignees a one-year grace period for filing, but they
bar a patent for the first inventor if the invention is
independently developed and disclosed by someone
else during that time. -Also termed absolute-novelty
requirement. Cf. BAR DATE.
noverca (n<1-v;>r-kd), n. [Latin] A stepmother.
noverint universi per praesentes (noh-va-rant yoo-ni
v;}r-SI p<lr pri-zen-teez). [Latin] Know all men by these
presents. This is a formal phrase once found at the
beginning ofdeeds of release. In translation, the phrase
still sometimes appears on various types oflegal docu
ments. See KNOW ALL MEN BY THESE PRESENTS; PATEAT
UNIVERSIS PER PRAESENTES.
novigild (noh-va-gild), n. [fro Latin novem "nine" +
Anglo-Saxon gid orgeld "a payment"] Hist. The money
a person must pay for damaging another person's
property, the amount equaling nine times the purchase
price of the property damaged.
nov; operis nuntiatio (noh-VI ahp-<'I-ris ndn-shee
ay-shee-oh). [Latin "new work protest"] Roman law.
A protest against an opus novum ("new work") . A
person whose rights were impaired by the building ofa
new structure could protest to the praetor. The praetor
could order the builder to give the protestor a security
against any loss caused by the construction (edictum
de novi operis nuntiatione). If the builder refused, the
praetor could prohibit further construction with a pro
hibitory interdict (interdictum de novi operis nuntia
tione). Also written operis novi nuntiatio_ Cf. JACTUS
LAPILLI.
noviter perventa (noh-v<l-t<lr p<lr-ven-tJ), n. pl. [Law
Latin "newly known"] Eccles. law. Newly discovered
facts, which are usu. allowed to be introduced in a case
even after the pleadings are closed.
novodamus (noh-vJ-day-m<ls), n. [Latin novo damus
"we grant anew"] Scots law. 1. A clause in a charter
that progressively grants certain rights anew. The
phrase appeared in reference to any charter by which
a superior renewed a previous land grant to a vassal. 2.
A charter containing such a clause.
'This clause is subjoined to the dispositive clause; and by
it the superior, whether the Crown or a subject, grants de
novo the subjects, rights, or privileges therein described.
Such a clause is usually inserted where the vassal is
sensible of some defect or flaw in the former right ..
This was also the correct form of proceeding. . when the
vassal wished to get free of burdens chargeable upon the
subject for casualties due to the superior; for a charter of
novodamus is accounted in law an original right, which
imports a discharge of all prior burdens." William Bell, Bell's
Dictionary and Digest of rhe Law of Scotland 747 (George
Watson ed., 7th ed. 1890).
novus actus interveniens (noh-v<ls ak-tas in-tJr-vee-nee
anz). See intervening cause under CAUSE (1).
novus homo (noh-vas hoh-moh), n. [Latin "new man"]
Hist. A man who has been pardoned for a crime.
NOW. abbr. 1. NEGOTIABLE ORDER OF WITHDRAWAL. 2.
National Organization for Women.
NOW account. See ACCOUNT.
now comes. See COMES NOW.
noxa (nok-s;l), n. [Latin "injury"] Hist. 1. Roman law. A
harm done or an offense committed such as injury to
a person or property, esp. by a slave or son. This gave
rise to noxal liability. 2. Roman law. The obligation to
pay for damage committed by a son, slave, or animal.
The father or owner generally had to pay damages or
else surrender the tort feasor offending person or animal
to the injured party (noxal surrender). -Also termed
noxal liability. See NOXAL ACTION. 3. An offense, gen
erally. 4. The punishment for an offense. 5. Something
that exerts a harmful effect on the body.
noxal (nok-s;ll), adj. Archaic. Of or relating to a claim
against a father or owner for damage done by a son, a
slave, or an animal.
noxal action. [fro Latin actio noxalis "injurious action"]
1. Roman law. The claim against an owner or father for
a tort committed by a son, a slave, or an animal. The
head ofthe family could be sued either to pay a penalty
due or to surrender the tortfeasor to the injured party.
Roman law also provided for the surrender ofanimals
that caused damage under the actio de pauperie. See
actio de pauperie under ACTIO. 2. Hist. A person's claim
to recover for damages committed by a person's son,
slave, or animal.
noxal liability. See NOXA (2).
noxal surrender. See NOXA (2).
noxious (nok-sh;ls), adj. (ISc) 1. Harmful to health;
injurious. 2. Unwholesome; corruptive. 3. Archaic.
Guilty.
n.p. abbr. 1. NISI PRIUS. 2. NOTARY PUBLIC.
NPL. abbr. NATIONAL PRIORITIES LIST.
NPV. See net present value under PRESENT VALUE.
NQDC. abbr. See nonqualified deferred-compensation
plan under EMPLOYEE BENEFIT PLAN.
NQSO. abbr. See nonqualified stock option under STOCK
OPTION.
n.r. abbr. 1. New reports. 2. Not reported. 3. NONRESI
DENT.
NRC. abbr. NUCLEAR REGULATORY COMMISSION.
NRCS. abbr. NATURAL RESOURCES CONSERVATION
SERVICE.
NRPC. abbr. NATIONAL RAILROAD PASSENGER CORPO
RATION.
n.s. abbr. 1. New series . This citation form indicates
that a periodical has been renumbered in a new series.
2. NEW STYLE.
NSA. abbr. NATIONAL SECURITY AGENCY.
NSC. abbr. NATIONAL SECURITY COUNCIL.
NSF. abbr. 1. NATIONAL SCIENCE FOUNDATION. 2. NOT
SUFFICIENT FUNDS. NSL. abbr. See NATIONAL-SECURITY LETTER.
NSPA. abbr. NATIONAL STOLEN PROPERTY ACT.
NTB. abbr. NONTARIFF BARRIER.
NTIA. abbr. NATIONAL TELECOMMUNICATIONS AND
INFORMATION ADMINISTRATION.
NTID. abbr. NATIONAL TECHNICAL INSTITUTE FOR THE
DEAF.
NTIS. abbr. National Technical Information Service. See
TECHNOLOGY ADMINISTRATION.
NTM. abbr. NONTARIFF MEASURE.
NTSB. abbr. NATIONAL TRANSPORTATION SAFETY
BOARD.
nubilis (n[y]oo-b;l-lis), n. [Latin "marriageable"] Civil
law. A person, esp. a girl, who is old enough to be
married.
nuclear-nonproliferation treaty. See nonproliferation
treaty under TREATY (1).
Nuclear Regulatory Commission. An independent
federal agency that licenses and regulates civilian use
of nuclear energy. The agency was created by the
Energy Reorganization Act of 1974. Executive Order
11834 of 1975 gave it additional functions previously
performed by the Atomic Energy Commission. -
Abbr. NRC. [Cases: Environmental Law C=>481, 484,
48S, 487, 492.]
nuda detentio (n[y]oo-d;l di-ten-shee-oh). [Latin] See
possessio naturalis under POSSESSIO.
nuda patientia (n[y]oo-d;l pash-ee-en-shee-;l). [Latin]
Mere sufferance . In a servitude, the servient estate
owner's obligation is one of mere sufferance because,
while the owner has to submit to the dominant estate,
the owner does not have to take any positive steps
(such as fixing a sidewalk) to enhance the exercise of
the dominant servitude.
nuda possessio (n[y]oo-d;l p;l-zes[h]-ee-oh). [Latin]
Mere possession.
nude, adj. (ISc) 1. Naked; unclothed. 2. Lacking in con
sideration or in some essential particular. See NUDUM
PACTUM. 3. Mere; lacking in description or specifica
tion.
nude contract. See NUDUM PACTUM.
nude matter. A mere allegation.
"[Nlude matter is not of so high nature, as either a mater
of Record or a speciality, otherwise there called mater in
deede; which maketh mee to thinke, that nude mater is
a naked allegation of a thing done, to be proved only by
witnesses, and not either by Record, or other speciality in
writing vnder seale." John Cowell, The Interpreter (1607).
nude pact. See NUDUM PACTUM.
nudum dominium (n[y]oo-d;lm d;l-min-ee-;lm). See
DOMINIUM.
nudum officium (n[y]oo-d;lm ;l-fish-ee-;lm). [Latin] Scots
law. The bare office, without the usual emoluments. PI.
nuda officia.
nudum pactum (n[y]oo-dam pak-tam). [Latin "bare
agreement"] (I7c) 1. Roman law. An informal agree
ment that is not legally enforceable, because it does not
fall within the specific classes of agreements that can
support a legal action. _ But a pactum could create an
exception to or modification ofan existing obligation.
2. An agreement that is unenforceable as a contract
because it is not "clothed" with consideration. Also
termed naked contract; nude contract; nude pact.
[Cases: |
"clothed" with consideration. Also
termed naked contract; nude contract; nude pact.
[Cases: Contracts ~47,54(1).]
nugatory (n[y]oo-ga-tor-ee), adj. (17c) Of no force or
effect; useless; invalid <the Supreme Court rendered the
statute nugatory by declaring it unconstitutional>.
nuisance. (l4c) 1. A condition, activity, or situation (such
as a loud noise or foul odor) that interferes with the
use or enjoyment of property; esp., a nontransitory
condition or persistent activity that either injures the
phYSical condition of adjacent land or interferes with
its use or with the enjoyment of easements on the land
or of public highways. _ Liability might or might not
arise from the condition or situation. -Formerly also
termed annoyance. [Cases: Nuisance ~1-4.]
"A nuisance may be merely a right thing in the wrong place,
like a pig in the parlor instead of the barnyard." Vii/age of
Euclid v. Amber Realty Co.. 272 U.S. 36S, 388,47 S.Ct. 114,
118 (1926).
"A 'nuisance' is a state of affairs. To conduct a nuisance is
a tort. If! torts, the word 'nuisance' has had an extremely
elastic meaning; sometimes it is little more than a pejora
tive term, a weasel word used as a substitute for reason
ing.... The general distinction between a nuisance and a
trespass is that the trespass flows from a phySical invasion
and the nuisance does not." Roger A. Cunningham et aI.,
The Law of Property 7.2, at 417 (2d ed. 1993).
2. Loosely, an act or failure to act resulting in an inter
ference with the use or enjoyment of property. -In
this sense, the term denotes the action causing the
interference, rather than the resulting condition <the
Slocums' playing electric guitars in their yard consti
tuted a nuisance to their neighbors>. [Cases: Nuisance
61.]
'There is perhaps no more impenetrable jungle in the
entire law than that which surrounds the word 'nuisance.'
It has meant all things to all people, and has been applied
indiscriminately to everything from an alarming advertise
ment to a cockroach baked in a pie." Prosser and Keeton
on the Law of Torts 86, at 616 (W. Page Keeton ed., 5th
ed. 1984).
3, 1be class oftorts arising from such conditions, acts,
or failures to act when they occur unreasonably. -Also
termed actionable nuisance. [Cases: Nuisance (;::=03,
61.]
"Nuisance is really a field of tortious liability rather than a
single type of tortious conduct: the feature which gives it
unity is the interest invaded that of the use and enjoy
ment of land. The tort emphasises the harm to the plaintiff
rather than the conduct of the defendant." R.F.v. Heu5ton,
Salmond on the Law of Torts 50-S1 (17th ed. 1977).
abatable nuisance. (1871) 1. A nuisance so easily
removable that the aggrieved party may lawfully cure
the problem without notice to the liable party, such as
overhanging tree branches. [Cases: Nuisance (;::;>19.] 2. A nuisance that reasonable persons would regard
as being removable by reasonable means.
absolute nuisance. (18c) 1. Interference with a property
right that a court considers fixed or invariable, such as
a riparian owner's right to use a stream in its natural
condition. [Cases: Nuisance 2. See nuisance
per se. 3. Interference in a place where it does not rea
sonably belong, even ifthe interfering party is carefuL
4. Interference for which a defendant is held strictly
liable for resulting harm, esp. in the nature of pollu
tion. Cf. qualified nuisance.
Sense (4) has been disapproved: "[Tlhe use of the term
'nUisance' to describe the tort liability that sometimes
results from accidental invasions produces too much con
fusion." Prosser and Keeton on the Law ofTorts 89, at 637
(W. Page Keeton ed., Sth ed. 1984).
anticipatory nuisance. A condition that, although not
yet at the level of a nuisance, is very likely to become
one, so that a party may obtain an injunction pro
hibiting the condition. -Also termed prospective
nuisance. [Cases: Nuisance
attractive nuisance. (1901) A dangerous condition that
may attract children onto land, thereby causing a risk
to their safety. See ATTRACTIVE-NUISANCE DOCTRINE.
Cf. ALLUREMENT.; dangerous condition (2) under CON
DITION (4). [Cases: Negligence ~1l72, 1175.]
"[TJhe doctrine acquired the unfortunate misnomer 'attrac
tive nuisance,' a label which persists to this day. It cannot
be taken literally, since the courts have now largely rejected
the notion that the child must be attracted by that which
injures him. and whether or not the condition is in fact a
'nuisance' has nothing at all to do with defendant's liability
to the child." Edward J. Kionka, Torts in a Nutshell 89 (2d
ed. 1992).
cognate nuisance. Rare. Interference with an ease
ment.
"The term nuisance is applied to torts of two distinct
groups, first, acts of wrongful user by an owner or pos
sessor of land reSUlting in an unreasonable interference
with the rights of enjoyment of the owner or possessor of
neighboring land, and, second, wrongful interferences WIth
easements or other incorporeal rights," William F. Walsh, A
Treatise on Equity 170 (1930).
"When an easement was interfered with, an action on the
case lay as a matter of course.... Such an interference is
sometimes called 'cognate nuisance' to distinguish it from
interferences with the personal enjoyment of the incidents
of occupying the land." J.H. Baker, An Introduction to English
Legal History 486 (3d ed. 1990).
common nuisance. See public nuisance.
continuing nuisance. (1837) A nuisance that is either
uninterrupted or frequently recurring. -It need not
be constant or unceasing, but it must occur often
enough that it is almost continuous. [Cases: Nuisance
(;::=04, 19.]
legalized nuisance. A nuisance sanctioned by legisla
tive, executive, or other official action and therefore
immune from liability, such as a city park.
mixed nuisance. (1894) A condition that is both a
private nuisance and a public nuisance, so that
it is dangerous to the community at large but also
causes particular harm to private individuals. [Cases:
Nuisance ~72.]
nuisance at law. See nuisance per se.
nuisance dependent on negligence. See qualified
nuisance.
nuisance in fact. (1855) A nuisance existing because
of the circumstances of the use or the particular
location. For example, a machine emitting high
frequency sound may be a nuisance only ifa person's
dog lives near enough to the noise to be disturbed by
it. -Also termed nuisance per accidens.
nuisance per se (p;)r say). (186) Interference so severe
that it would constitute a nuisance under any circum
stances; a nuisance regardless oflocation or circum
stances of use, such as a leaky nuclear-waste storage
facility. -Also termed nuisance at law; absolute
nuisance. [Cases: Nuisance ~4.]
permanent nuisance. (18c) A nuisance that cannot
readily be abated at reasonable expense. Cf. tempo
rary nuisance. [Cases: Nuisance ~1, 4.]
private nuisance. (I8c) A condition that interferes
with a person's enjoyment of property; esp., a struc
ture or other condition erected or put on nearby land,
creating or continuing an invasion ofthe actor's land
and amounting to a trespass to it . The condition
constitutes a tort for which the adversely affected
person may recover damages or obtain an injunction.
[Cases: Nuisance ~1.]
"Trespass and private nuisance are alike in that each is a
field of tort liability rather than a single type of tortious
conduct. In each, liability may arise from an intentional
or an unintentional invasion. For an intentional trespass,
there is liability without harm; for a private nuisance,
there is no liability without significant harm.... In private
nuisance an intentional interference with the plaintiff's use
or enjoyment is not of itself a tort, and unreasonableness
of the interference is necessary for liability." Restatement
(Second) of Torts 8210 cmt. d (1979).
"The different ways and combinations of ways in which the
interest in the use or enjoyment of land may be invaded
are infinitely variable. A private nuisance may consist of an
interference with the physical condition of the land itself,
as by vibration or blasting which damages a house, the
destruction of crops, flooding, raising the water table,
or the pollution of a stream or of an underground water
supply." W. Page Keeton et aI., Prosser and Keeton on the
Law of Torts 87, at 619 (W. Page Keeton ed., 5th ed.
1984).
prospective nuisance. See anticipatory nuisance.
public nuisance. (17c) An unreasonable interference
with a right common to the general public, such as
a condition dangerous to health, offensive to com
munity moral standards, or unlawfully obstructing
the public in the free use of public property . Such
a nuisance may lead to a civil injunction or criminal
prosecution. -Also termed common nuisance.
[Cases: Nuisance ~59-96.]
"Public and private nuisances are not in reality two species
of the same genus at all. There is no generic conception
which includes the crime of keeping a common gaming
house and the tort of allOWing one's trees to overhang
the land of a neighbour. A public nuisance falls within the law of torts only in so far as it may in the particular
case constitute some form of tort also. Thus the obstruc
tion of a highway is a public nuisance; but if it causes any
special and peculiar damage to an individual, it is also a
tort actionable at his suit." R.F.v. Heuston, Salmond on the
Law of Torts 49-50 (17th ed. 1977).
"[Plublic nuisance ... is an amorphous and unsatisfac
tory area of the law covering an ill-assorted collection of
wrongs, some of which have little or no association with
tort and only appear to fill a gap in criminal law. Others
cover what could be generally described as 'noisome trade,'
which could be dealt with under some form of statutory
nuisance. Yet a third group deals with what we would gen
erally describe as 'abuses of the highway' ...." R.w.M. Dias
& B.S. Markesinis, Tort Law 254 (1984).
qualified nuisance. (1944) A condition that, though
lawful in itself, is so negligently permitted to exist
that it creates an unreasonable risk of harm and, in
due course, actually results in injury to another.
It involves neither an intentional act nor a hazard
ous activity. -Also termed nuisance dependent on
negligence. Cf. absolute nuisance. [Cases: Nuisance
~1,6,59.]
recurrent nuisance. A nuisance that occurs from time
to time with distinct intervals between occurrences,
rather than being continuous or only briefly inter
rupted.
temporary nuisance. (1879) A nuisance that can be cor
rected by a reasonable expenditure ofmoney or labor.
Cf. permanent nuisance. [Cases: Nuisance ~4,19.]
nuisance money. See nuisance settlement under SETTLE
MENT (2).
nuisance per accidens. See nuisance in fact under NUI
SANCE.
nuisance prior art. See ART.
nuisance settlement. See SETTLEMENT (2).
nuke. Slang. See DENIAL-OF-SERVICE ATTACK.
nul (n;)l). [Law French] No; none. This negative particle
begins many phrases, such as nul tiel.
nul agard (n;)} ;)-gahrd), n. [Law French "no award"] In
an action to enforce an arbitration award on an arbitra
tion bond, a plea denying the existence of the award.
Cf. AGARD.
nul disseisin (n;}} dis-see-zin). [Law French "no dissei
sin"] In a real action, a defendant's plea that the plain
tiff was not deprived ofthe possession ofany land and
tenements. See DISSEISIN.
nulfait agard (n;)l fay;)-gahrd). [Law French] No award
was made. Cf. AGARD.
null, adj. (16c) Having no legal effect; without binding
force; VOID <the contract was declared null and void>.
The phrase null and void is a common redundancy.
[Cases: Contracts ~98, 135.]
nulla bona (n;J}-;) boh-n;)). [Latin "no goods"] (I8c) A
form ofreturn by a sheriff or constable upon an execu
tion when the judgment debtor has no seizable property
within the jurisdiction. Cf. NIHIL EST. [Cases: Execu
tion~334.]
nulla persona (nal-.:l p.:lr-soh-n.:l). [LatinI Hist. No person.
-The phrase appeared in reference to the status ofone
who essentially has no legal rights usu. because ofthat
person's actions, such as committing a crime, or that
person's status, such as being a minor.
nulla poena sine lege (nal-J pee-nJ sl-nee lee-jee or
sin-ay lay-gay). [Latin] No punishment without a law |
nJ sl-nee lee-jee or
sin-ay lay-gay). [Latin] No punishment without a law
authorizing it.
nulla sasina, nulla terra (ua!-J say-si-nJ [or say-zi-J,
nal-J ter-J). [Law Latin] Scots law. No seisin (or enfeoff
ment), no land. _ The phrase appeared in reference to
the principle that there could be no indefeasible right
in land until an enfeoffment was taken.
nullification (ml-i-fi-kay-shJn), n. (18c) 1. The act of
making something void; specif., the action of a state
in abrogating a federal law, on the basis of state sover
eignty. [Cases: States 04.1(1).] 2. The state or condi
tion of being void. See JURY NULLIFICATION.
uullification doctrine. The theory espoused by
southern states before the Civil War advocating a
state's right to declare a federal law unconstitutional
and therefore void.
nullify, vb. To make void; to render invalid.
nullity (nal-J-tee). (16c) 1. Something that is legally void
<the forged commercial transfer is a nullity>. [Cases:
Contracts C-~'98, 135.] 2. The fact ofbeing legally void
<she filed a petition for nullity of marriage>.
absolute nullity. Civil law. 1. An act that is void because
it is against public poHcy, law, or order. -The nullity
is noncurable. It may be invoked by any party or by
the court. See La. Civ. Code arts 7, 2030. 2. The state
of such a nullity. See NULLITY OF MARRIAGE.
relative nullity. Civil law. 1. A legal nullity that can
be cured by confirmation because the object of the
nullity is valid. The nullity may be invoked only by
those parties for whose interest it was established. See
La. Civ. Code art. 2031. 2. The state of such a nullity.
nullity of marriage. 1. The invalidity of a presumed or
supposed marriage because it is void on its face or has
been voided by court order. A void marriage, such
as an incestuous marriage, is invalid on its face and
requires no formality to end. See void marriage under
MARRIAGE (1). [Cases: Marriage 1, 54(1), 58.]
'The declaration of nullity is appropriate if the marriage is
relatively null or absolutely null yet one or both spouses
were in good faith. If the marriage is relatively null, civil
effects flow until the declaration of nullity. On the other
hand, the marriage that is absolutely null generally
produces civil effects only if one or both of the spouses
were in good faith and only so long as good faith lasts." 16
Katherine S. Spaht & W. Lee Hargrave, Louisiana Civil Law
Treatise: Matrimonial Regimes 7.6, at 348 (2d ed. 1997).
2. A suit brought to nullify a marriage. Also termed
nullity suit. See ANNULMENT. [Cases: Marriage
56.J
nullity suit. See NULLITY OF MARRIAGE (2). nullius filius (nJ-h-Js fil-ee-Js), n. [Latin "son of no
one") An illegitimate child. [Cases: Children Out-of
Wedlock "pI, 84-89.}
nullius in bonis (nJ-h-Js in bob-nis), adj. [Latin "among
the property ofno person"} Hist. Belonging to no one .
Wild animals were considered to be nullius in bonis.
Also termed in nullius bonis.
nullius juris (nJ-h-Js joor-is). [Latin} Hist. Of no legal
force.
nullum arbitrium (nal-Jm ahr-bi-tree-<lm), n. [Law
Latin "no decision"] Hist. In an action to enforce an
arbitration bond, a plea denying the existence of an
arbitration award.
nullum est erratum (nal-Jm est J-ray-tJm), n. [Latin
"there is no error in the record"] In response to an
assignment of error, the common plea that there is no
error in the record . The effect ofthe plea is essentially
to admit well-pleaded facts.
nullum fecerunt arbitrium (nal-<lm fJ-see-rJnt ahr-bi
tree-Jm). [Latin "they never submitted to arbitration"]
Hist. In an action to enforce an arbitration award, the
defendant's plea denying that there had been an arbi
tration.
Nullum Tempus Act (nal-dm tem-pJs akt), n. [Latin)
Hist. English law. The Crown Suits Act of 1769
(amended in 1862) that limited the Crown's time to sue,
in land and other specified matters, to 60 years. -The
statute altered the common-law rule of nul/urn tempus
aut locus occurrit regi ("no time or place affects the
Crown"), which was based on the idea that the Crown
was too busy with governmental affairs to timely attend
to its legal affairs.
UI.411um tempus occurrit reipublicae (nal-Jm tem-p<ls
J-kar-it ree-I-pab-l<l-see), n. [Latin "no time runs
against the state") The principle that a statute oflimi
tations does not apply to a commonwealth or state
unless a statute specifically proVides that it does.
The purpose ofthe rule is to fully protect public rights
and property from injury. [Cases: Limitation of Actions (>n.]
nul tiel (ml teel). [Law Latin] No such . This phrase
typically denotes a plea that denies the existence of
something.
nul tiel corporation, n. [Law French "no such corpora
tion exists") A plea denying the existence ofan alleged
corporation . The defense of nul tiel c01-poration must
usu. be affirmatively pleaded by a defendant before a
plaintiff is required to prove its corporate existence.
[Cases: Corporations (,=)514.]
nul tiel record, n. [Law French "no such record") A plea
denying the existence ofthe record on which the plain
tiff bases a claim . Evidence may generally be intro
duced to invalidate the record only, not the statements
in the record. See trial by record under TRIAL. [Cases:
Judgment <::-~914.1
"The proper general issue in debt on judgments is 'nul tiel
record: which denies the existence of the record alleged.
Nul tiel record sets up: (1) the defense either that there
is no record at all in existence; or (2) one different from
that which the defendant has declared of; or (3) that the
judgment is void on the face of the record." Benjamin J.
Shipman, Handbook ofCommon-Law Pleading 186, at 330
(Henry Winthrop Ballantine ed., 3d ed. 1923).
nul tort (n;ll tort), n. [Law French "no wrong"] Hist. A
type of general denial in an action to recover lands
and tenements, by which the defendant claims that no
wrong was done. See NUL DISSEISIN.
"The general issue, or general plea, is what traverses,
thwarts, and denies at once the whole declaration; without
offering any special matter whereby to evade it .... III
n real actions, nul tort, no wrong done; nul disseisin, no
disseisin; and in a writ of right, that the tenant has more
right to hold than the demandant has to demand. These
pleas are called the general issue, because, by importing
an absolute and general denial of what is alleged in the
declaration, they amount at once to an issue; by which
we mean a fact affirmed on one side and denied on the
other." 3 William Blackstone, Commentaries on the Laws of
England 305 (1768).
nul waste (n;ll wayst), n. [Law French "no waste"] Hist.
The defendant's general denial in an action to recover
damages for the destruction of lands and tenements.
See NUL TORT.
number lottery. See Genoese lottery under LOTTERY.
numbers game. A type oflottery in which a person bets
that on a given day a certain series of numbers will
appear from some arbitrarily chosen source, such as
stock-market indexes or the U.S. Treasury balance .
The game creates a fund from which the winner's share
is drawn and is subject to regulation as a lottery. Cf.
NUMBERS RACKET. [Cases: Lotteries C=>3.]
numbers racket. An illegal lottery in which the players
typically choose a series of numbers and win if their
chosen numbers match a series of randomly drawn
numbers. Numbers rackets have historically been
operated in poor neighborhoods and have permitted
players to bet small amounts or even to bet on credit.
An additional element of their historical attraction
was the players' avoidance of paying income tax on
winnings. Numbers rackets are often associated with
organized crime, and because of their odds (about
1:1,000), they are noted for being rigged and making
large profits for racketeers. Cf. NUMBERS GAME. [Cases:
Lotteries C=>25.]
numerata pecunia (n[y]oo-m;l-ray-t;l pi-kyoo-nee-;l), n.
[Latin] Hist. Money counted or paid.
numerical lottery. See Genoese lottery under LOTTERY.
numerosity (n[y]oo-m;lr-ahs-;l-tee). (1958) The require
ment in U.S. district courts that, for a case to be certi
fied as a class action, the party applying for certification
must show, among other things, that the class ofpoten
tial plaintiffs is so large that the joinder of all of them
into the suit is impracticable. See CLASS ACTION. [Cases:
Federal Civil Procedure C=> 163.]
nummata (n;l-may-t;l), n. [Law Latin "money"] The
monetary price ofsomething.
nummata terrae (n;l-may-t;l ter-ee), n. [Law Latin] Hist.
An acre ofland. nummi pupillares (nam-I Pyoo-p;l-lair-eez). [Latin]
Scots law. Money belonging to a pupil.
nunciato (n;ln-shee-ay-toh). See NUNTIATIO.
nuncio (n;ln-shee-oh), n. [Italian, fr. Latin nunciare "to
announce"] 1. A papal ambassador to a foreign court
or government; a representative of the Vatican in a
country that maintains diplomatic relations with it.
Also termed nuncius; nuntio. Cf. legatus a latere under
LEGATUS; INTERNUNCIO (3); LEGATE (3). 2. Archaic. A
messenger.
nunc pro tunc (n;lngk proh t;lngk or nuungk proh
tuungk). [Latin "now for then"] Having retroactive
legal effect through a court's inherent power <the court
entered a nunc pro tunc order to correct a clerical error
in the record>. [Cases: Judgment C=>273, 326; Motions
C=>54.]
"When an order is signed 'nunc pro tunc' as of a specified
date, it means that a thing is now done which should have
been done on the specified date." 35A c.J.S. Federal Civil
Procedure 370, at 556 (1960).
nunc pro tunc amendment. See AMENDMENT (2).
nunc pro tunc judgment. See JUDGMENT.
nuncupare (n;lng-kyuu-pair-ee), vb. [Latin "call by
name"] Hist. To name or pronounce orally. Nun
cupare heredem means to name an heir before public
witnesses.
nuncupate (n;mg-kY;l-payt), vb. [fro Latin nuncupare "call
by name"] 1. Hist. To designate or name. 2. To vow or
declare publicly and solemnly. 3. To declare orally, as
a will. 4. To dedicate or inscribe (a work).
nuncupative (nang-kY;l-pay-tiv or n;lng-kyoo-p;l-tiv),
adj. [fr. Latin nuncupare "to name"] (15c) Stated by
spoken word; declared orally.
nuncupative testament by public act. See nuncupative
will by public act under WILL.
nuncupative will. See WILL.
nuncupative will by public act. See WILL.
nunc valent et quantum valuerunt tempore pads (mngk
vay-lent et kwon-t;lm val-yoo-er-;lnt tem-p;l-ree pay
sis). [Latin] Scots law. The value (of the lands) now, and
their value in time ofpeace. This was the object ofan
inquiry formerly made in an inquest to assess the value
oflands for taxation purposes.
nundinae (nan-d;l-nee), n. [fro Latin novem "nine" +
dies"day"] 1. Roman law. A fair or market. 2. Roman
law. The period between two consecutive markets (usu.
eight days), including the market days. This period
was often fixed for the payment ofdebts.
nundination (n;ln-di-nay-sh;ln), n. [fro Latin nundinatio
"the holding of a market or fair"] Hist. The act of buying
or selling at a fair.
nunquam indebitatus (n<ln[g]-kwam in-deb-i-tay-t;ls),
n. [Latin "never indebted"] Hist. A defensive plea in a
debt action, by which the defendant denies any indebt
edness to the plaintiff. Cf. CONCESSIT SOLVERE.
1175
nuntiatio (n~n-shee-ay-shee-oh), n. [Latin "a declara
tion"] Hist. A formal declaration or protest. - A nun
tiatio novi operiis was an injunction placed on the
construction of a new building by the person protest
ing the construction. -Also spelled nunciato.
nunt |
placed on the
construction of a new building by the person protest
ing the construction. -Also spelled nunciato.
nuntio. See NUNCIO.
nuntius (n;m-shee-~s), n. [Latin] "bearer of news"] 1.
Roman law. A messenger. -Declarations through a
messenger were usu. as valid as those by letter. 2. Hist. A
messenger sent to make an excuse for a party's absence
in court. 3. Hist. An officer ofthe court. -Also termed
summoner; beadle. 4. Eccles. law. NUNCIO (1).
nuper obiit (n[yloo-p<lr oh-bee-it), n. [Latin "lately died"]
Hist. A writ available to an heir to establish the equal
division ofland when, on the death ofan ancestor who
held the estate in fee simple, a coheir took the land and
prevented the other heirs from possessing it. The writ
was abolished in 1833. See COPARCENER.
nuptiae (nap-shee-ee). See MATRIMONIUM.
nuptiae secundae (nap-shee-ee s;)-kan-dee), n. [Latin]
Eccles. law. A second or subsequent marriage. -In
canon law, second or subsequent marriages were
frowned upon, and priests would not officiate at those
ceremonies.
nuptial (nap-shal), (ISc) Ofor relating to marriage.
[Cases: Marriage 26.]
nuptiales tabulae (ndp-shee-ay-leez tab-Yd-Iee). [Latin]
Romar! law. Marriage tablets -i.e., documents record
ing a marriage and the terms on which it was entered
into. _ These writings were not essential to the validity
of a marriage.
Nuremberg defense (n[y]ar-dm-bdrg). The defense
asserted by a member of the military who has been nystagmus
charged with the crime offailing to obey an order and
who claims that the order was illegal, esp. that the order
would result in a violation of international law. _ The
term is sometimes used more broadly to describe situa
tions in which citizens accused of committing domestic
crimes, such as degradation of government property,
claim that their crimes were justified or mandated by
internationallaw. [Cases: Criminal Law~58; Military
Justice (;:::->832.]
nurture, vb. (l4c) 1. To supply with nourishment. 2. To
train, educate, or develop.
nurturing-parent doctrine. Family law. The principle
that, although a court deciding on child support gener
ally disregards a parent's motive in failing to maximize
earning capacity, the court will not impute income to
a custodial parent who remains at home or works less
than full-time in order to provide a better environment
for a child. -The doctrine is fact-specific; courts apply
it case by case. [Cases: Child Support (,'=88, 90.J
nurus (n[y]oor-ds), n. [Latin] A daughter-in-law.
NVOCC. abbr. See non-vessel-operating common carrier
under CARRIER.
i N.W. abbr. NORTH WESTERK REPORTER.'
NWS. abbr. National Weather Service. See NATIONAL
OCEANIC AND ATMOSPHERIC ADMINISTRATION.
nychthemeron (nik-thee-m;)r-ahn), n. [Greek] An entire
day and night; a 24-hour period.
NYS. abbr. NEW YORK SUPPLEMENT.
NYSE. abbr. NEW YORK STOCK EXCHANGE.
nystagmus (ni-stag-mds). A rapid, involuntary jerking
or twitching of the eyes, sometimes caused by ingesting
drugs or alcohol. See HORIZONTAL-GAZE NYSTAGMUS
TEST.
o
OAR. abbr. Office of Oceanic and Atmospheric Research.
See "ATIONAL OCEANIC AND ATMOSPHERIC ADMINIS
TRATION.
OASDHI. abbr. Old Age, Survivors, Disability, and
Health Insurance. See OLD-AGE AND SURVIVORS'
INSURANCE.
OASDI. abbr. Old Age, Survivors, and Disability Insur
ance. See OLD-AGE AND SURVIVORS' INSURANCE.
OASI. abbr. OLD-AGE AND SURVIVORS' INSURANCE.
oath. (bef. 12c) 1. A solemn declaration, accompanied
by a swearing to God or a revered person or thing,
that one's statement is true or that one will be bound
to a promise. -The person making the oath implic
itly invites punishment if the statement is untrue or
the promise is broken. The legal effect of an oath is to
subject the person to penalties for perjury if the testi
mony is false. [Cases: Oath C=> 1; Witnesses
2. A statement or promise made by such a declaration.
3. A form of words used for such a declaration. 4. A
formal declaration made solemn without a swearing
to God or a revered person or thing; AFFIRMATION. Cf.
PLEDGE (1).
"The word 'oath' (apart from its use to indicate a profane
expression) has two very different meanings: (1) a solemn
appeal to God in attestation of the truth of a statement or
the binding character of such a promise: (2) a statement
or promise made under the sanction of such an appeal."
Rollin M. Perkins & Ronald N. Boyce, Criminal Law 515 (3d
ed.1982).
assertory oath (.:l-s.:lr-t.:l-ree). (18c) An oath by which
one attests to some factual matter, rather than making
a promise about one's future conduct. - A courtroom
witness typically takes such an oath.
corporal oath (kor-p.:lr-.:ll). (16c) An oath made solemn
by touching a sacred object, esp. the Bible. Also
termed solemn oath; corporale sacramentum.
"Oath (juramentum) Is a calling Almighty God to witness
that the Testimony is true; therefore it is aptly termed Sac
ramentum, a Holy Band, a Sacred Tye, or Godly Vow. And
it is called a Corporal Oath, because the party when he
swears, toucheth with his right hand the Holy Evangelists
or Book of the New Testament." Thomas Blount, Nomo
Lexicon: A Law-Dictionary (1670).
decisive oath. Civil law. An oath by a party in a lawsuit,
used to decide the case because the party's adversary,
not being able to furnish adequate proof, offered to
refer the decision of the case to the party. -Also
termed decisory oath.
extrajudicial oath. (17c) An oath that, although
formally sworn, is taken outside a legal proceeding
or outside the authority oflaw. -Also termed non-
judicial oath. .
false oath. See PERJURY. judicial oath. (17c) An oath taken in the course of a
judicial proceeding, esp. in open court. Wit
nesses ~227.]
loyalty oath. See oath ofallegiance.
nonjudicial oath. 1. An oath taken out of court, esp.
before an officer ex parte. -Also termed voluntary
oath. 2. See extrajudicial oath.
oath de calumnia. See oath ofcalumny.
oath ex officio (eks ;>-fish-ee-oh). Hist. At common
law, an oath under which a person accused ofa crime
swore to answer questions before an ecclesiastical
court.
oath in litem (II-tern or -t.:lm). Civil law. An oath taken
by a plaintiff in testifying to the value of the thing in
dispute when there is no evidence ofvalue or when
the defendant has fraudulently suppressed evidence
of value.
oath ofabjuration. Hist. English law. An oath renounc
ing any and all right ofdescendants ofa pretender to
the Crown.
oath ofallegiance. An oath by which one promises to
maintain fidelity to a particular sovereign or govern
ment. -This oath is most often administered to a
high public officer, to a soldier or sailor, or to an alien
applying for naturalization. -Also termed loyalty
oath; test oath.
oath ofcalumny (kal-.:lm-nee). (17c) Hist. An oath that
a plaintiff or defendant took to attest to that party's
good faith and to the party's belief that there was a
bona fide claim. Also termed oath de calumnia.
See CALUMNY.
oath ofoffice. (l6c) An oath taken by a person about
to enter into the duties ofpublic office, by which the
person promises to perform the duties of that office
in good faith. [Cases: Officers and Public Employees
C=>36(1).]
oath ofsupremacy. Hist. English law. An oath required
of those taking office, along with the oaths of alle
giance and abjuration, declaring that the sovereign is
superior to the church in ecclesiastical matters.
oath purgatory. See purgatory oath.
oath suppletory. See suppletory oath.
pauper's oath. (1844) An affidavit or verification
of poverty by a person requesting public funds or
services. See poverty affidavit under AFFIDAVIT; IN
FORMA PAUPERIS. [Cases: Costs <.::=' 132(6); Federal
Civil Procedure C=>2734.]
promissory oath. (15c) An oath that binds the party to
observe a specified course ofconduct in the future.
1177
Both the oath ofoffice and the oath of allegiance are
types ofpromissory oaths. [Cases: Oath C=> 1.]
purgatory oath. An oath taken to clear oneself of a
charge or suspicion. Also termed oath purgatory.
solemn oath. See corporal oath.
suppletory oath (s3p-b-tor-ee). 1. Civil law. An oath
administered to a party, rather than a witness, in
a case in which a fact has been proved by only one
witness. In a civil-law case, two witnesses are
needed to constitute full proof. See HALF-PROOF. 2.
An oath administered to a party to authenticate or
support some piece ofdocumentary evidence offered
by the party. -Also termed oath suppletory. [Cases:
Evidence (;:::=354,376.]
test oath. See oath ofallegiance.
voluntary oath. See nonjudicial oath (1).
oath against an oath. See SWEARING MATCH.
oath-helper. See COMPURGATOR.
oath of abjuration. See ABJURATION.
Oath or Affirmation Clause. (1974) The clause of the
U.S. Constitution requiring members ofCongress and
the state legislatures, and all members ofthe executive
or judicial branches -state or local to pledge by
oath or affirmation to support the Constitution. U.S.
Const. art. VI, cl. 3. [Cases: Officers and Public Employ
ees C=>36(l).J
oath-rite. The form or ceremony used when taking an
oath.
oathworthy, adj. Legally capable of making an oath.
obaeratus (oh-b<}-ray-tas), adj. & n. [Latin] Roman law.
1. Adj. Burdened with debt. 2. n. A debtor.
ob continentiam delicti (ob kon-t<}-nen-shee-<}m
da-lik-tJ). [Latin] On account of contiguity to the
offense; being contaminated by association with some
thing illegal.
ob contingentiam (ob kon-tin-jen-shee-am).lLatin] Hist.
1. On account ofconnection; by reason ofSimilarity.
'01i8 phrase appeared when there was a close enough
connection between two or more lawsuits to consoli
date them. 2. In case of contingency.
ob defectum haeredis (ob di-fek-t<}m h<}-ree-dis). [Law
Latin] Hist. On account ofa failure of heirs.
obedience. Compliance with a law, command, or author
ity.
obediential obligation. See OBLIGATION.
ob favorem mercatorum (ob fa-vor-<Jm m<}r-ka-tor-am).
[Latin] In favor of merchants.
obUt (oh-bee-it). [Latin] He died; she died.
obiit sine prole (oh-bee-it 51-nee proh-Iee also sin-ay
prohl). [Latin] He died without issue. -Abbr. o.s.p.
obit. (14c) 1. Archaic. A memorial service on the anni
versary of a person's death. 2. A record or notice of a
person's death; an obituary. object code
obiter (oh-bit-ar), adv. [Latin "by the way] (16c) Inciden
tally; in passing <the judge said, obiter, that a nominal
sentence would be inappropriate>.
obiter, n. See OBITER DICTUM.
obiterdictum (ob-i-tar dik-tam). [Latin "something said
in passing"] (18c) A judicial comment made while deliv
ering a judicial opinion, but one that is unnecessary to
the decision in the case and therefore not precedential
(although it may be considered persuasive). Often
shortened to dictum or, less commonly, obiter. PI. obiter
dicta. See DICTUM. Cf. HOLDING (1); RATIO DECIDENDI.
[Cases: Courts C=>92.]
"Strictly speaking an 'obiter dictum' is a remark made
or opinion expressed by a judge, in his decision upon a
cause, 'by the way' that is, incidentally or collaterally,
and not directly upon the question before the court; or it
is any statement of law enunciated by the judge or court
merely by way of illustration, argument, analogy, or sug
gestion. .. In the common speech of lawyers, all such
ext |
way of illustration, argument, analogy, or sug
gestion. .. In the common speech of lawyers, all such
extrajudicial expressions of legal opinion are referred to
as 'dicta,' or 'obiter dicta,' these two terms being used
interchangeably." William M. Ule et aI., Brief Making and
the Use of Law Books 304 (3d ed. 1914).
obiter ex post facto (ob-i-tar eks post fak-toh). A court's
holding that, according to a later court, was expressed
in unnecessarily broad terms. Some authorities
suggest that this is not, properly speaking, a type of
i obiter dictum at alL
I object (ob-jekt), n. (ISc) 1. A person or thing to which
' thought, feeling, or action is directed <the natural
object of one's bounty>. See NATURAL OBJECT.
objectofa power. A person appointable by a donee. See
POWER OF APPOINTMENT. [Cases: Powers
2. Something sought to be attained or accomplished;
an end, goal, or purpose <the financial objects of the
joint venture>.
object ofan action. The legal relief that a plaintiff seeks;
the remedy demanded or relief sought in a lawsuit. Cf,
SUBJECT OF AN ACTION. [Cases: Action
object ofa statute. The aim or purpose oflegislation;
the end or design that a statute is meant to accom
plish. [Cases: Statutes C=>184.]
object (<}b-jekt), vb. (ISc) 1. To state in opposition; to put
forward as an objection <the prosecution objected that
the defendant's discovery requests were untimely>. 2.
To state or put forward an objection, esp. to something
in a judicial proceeding <the defense objected to the
testimony on the ground that it was privileged>. [Cases:
Criminal Law (;:::='690-698; Federal Civil Procedure
C=>2017; Trial C=>31, 77, 131.]-objector, n,
objectant. See CONTESTANT (1).
object code. Copyright. The machine-readable language
compiled from a computer programmer's source code.
Object code is difficult to reverse-engineer, so publicly
available software is always in this form. Object code is
protected by copyright law and may also be protected
by patent law. Because people cannot read or under
stand it, object code is deposited with the U.S. Copy
right Office more often than source code. Cf. SOURCE
objection 1178
CODE. [Cases: Copyrights and Intellectual Property
objection, n. (1837) 1. A formal statement opposing
something that has occurred, or is about to occur, in
court and seeking the judge's immediate ruling on
the point. -The party objecting must usu. state the
basis for the objection to preserve the right to appeal
an adverse ruling. [Cases: Criminal LawC::>690-698,
1043; Federal Civil Procedure C::>2017; Trial
77, 131.]
continuing objection. (1940) A single objection to all
the questions in a given line ofquestioning. - A judge
may allow a lawyer to make a continuing objection
when the judge has overruled an objection applicable
to many questions, and the lawyer wants to preserve
the objection for the appellate record. Also termed
running objection. [Cases: Criminal Trial
C::>79.]
general objection. (18c) An objection made without
specifying any grounds in support ofthe objection.
- A general objection preserves only the issue ofrel
evancy. Also termed broadside objection. [Cases:
Pleading <.r~232; Criminal Law C::>695 (2), 1043(2);
Federal Civil Procedure C::>2017.1; Trial C:)82.j
speaking objection. (1958) An objection that contains
more information (often in the form of argument)
than needed by the judge to sustain or overrule it.
Many judges prohibit lawyers from using speaking
objections, and sometimes even from stating the
grounds for objections, because of the potential for
influencing the jury.
specific objection. (1894) An objection that is accom
panied by a statement of one or more grounds in
support of the objection. [Cases: Criminal Law
695(2); Federal Civil Procedure C::>2017.1; Trial
82,83.]
2. Parliamentary law. A motion that suppresses a main
motion, esp. one that will or may inflame controversy,
immediately and without debate. -The motion, because
it disposes ofthe main motion without any debate, usu.
requires a supermajority. -Also termed question of
consideration; objection to consideration ofa question.
"Objection to the consideration of a question is used when
an original main motion is of a delicate or personal nature,
or is contentious or inflammatory (such as sectarian, politi
cal, raCial, etc.), or is irrelevant, unprofitable, or otherwise
objectionable or discriminatory. The motion can be aVOided
altogether by instantly objecting to the consideration of
the question," George Demeter, Demeter's Manual of Par
liamentary Law and Procedure 141 (1969).
3. Parliamentary law. A negative vote, esp. one that
defeats a request for general consent. 4. Patents. An
examiner's action identifying a defect in the form
of a patent application, usu. in the specification or a
drawing. -An objection does not raise questions about
the merit ofthe claims. An examiner might object, for
instance, to a defective oath or to a trademark appear
ing on the drawings. Cf. REJECTION (4). [Cases: Patents
C::>104.] objectionable, adj. (18c) Open to opposition, esp. adverse
reason or contrary argument. Also termed excep
tionable.
objection in point oflaw. (l7c) A defensive pleading by
which the defendant admits the facts alleged by the
plaintiffbut objects that they do not make out a legal
claim. [Cases: Pleading C::>341,
objection to consideration of a question. See OBJEC
TION (2).
objective, adj. (17c) 1. Ot: relating to, or based on exter
nally verifiable phenomena, as opposed to an individ
ual's perceptions, feelings, or intentions <the objective
facts>. 2. Without bias or prejudice; disinterested
<because her son was involved, she felt she could not
be objective>. Cf. SUBJECTIVE.
objective but-for test. See BUT-FOR MATERIALITY.
objective entrapment. See ENTRAPMENT.
objective ethics. See MORAL ABSOLUTISM.
objective impossibility. See IMPOSSIBILITY.
objective meaning. See MEANING.
objective method. See HYPOTHETICAL-PERSON DE
FENSE.
objective novation. See NOVATION.
objective standard. See STANDARD.
objective theory ofcontract. (1904) The doctrine that a
contract is not an agreement in the sense ofa subjective
meeting ofthe minds but is instead a series ofexternal
acts giving the objective semblance of agreement.
Often shortened to objective theory. Cf. SUBJECTIVE
THEORY OF CONTRACT; MEETING OF THE MINDS. [Cases:
Contracts C::>15, 147(1).]
object of a power. See permissible appointee under
APPOINTEE.
object ofa right. (1880) The thing in respect ofwhich a
right exists; the subject matter ofa right. Also termed
subject ofa right. See SUBJECT OF A RIGHT.
object offense. See OFFENSE (1).
object of the power. See permissible appointee under
APPOINTEE.
object of the power of appointment. See permissible
appointee under APPOINTEE.
objurgatrix (ob-jar-gay-triks). Hist. A common scold.
See SCOLD.
oblatio (ah-blay-shee-oh), n. [Latin] Roman law. A
tender of payment or performance due. PI. oblationes
(ah-blay-shee-oh-neez).
oblation (ah-blay-sh;m). (15c) An offering or sacri
esp. one in a religious or ritualistic ceremony.
oblatory, adj.
obligant (ob-Ia-g;mt). Scots law. A debtor in an obliga
tion; OBLIGOR.
obligate, vb. (16c) 1. To bind by legal or moral duty. 2.
To commit (funds, property, etc.) to meet or secure an
obligation.
1179
obligatio (ah-bla-gay-shee-oh), n. [Latin] Roman law.
An obligation; a legal bond. PI. obligationes (ah-bl..
gay-shee-oh -neez).
obligatio civilis (ah-bla-gay-shee-oh sa-vI-lis). [Latin
"civil obligation"] Roman law. 1. An obligation rec
ognized under;us civile as opposed to one recognized
only under jus honorarium. 2. A legally enforceable
obligation, such as one by contract.
obligatio ex contractu (ah-bla-gay-shee-oh eks kan
trak-t[y]oo). Roman law. [Latin "contractual obliga
tion"] A contractual obligation.
obligatio ex delicto (ah-bla-gay-shee-oh eks da-Iik-toh).
[Latin "tortious obligation"] Roman law. An obliga
tion arising from a wrongdoing against the person
or property of another; an obligation enforceable in
tort. -Also termed obligatio ex maleficio (mal-a
fish-ee-oh).
obligatio honoraria (ah-bla-gay-shee-oh [hlon-a-rair
ee-a). Roman law. An obligation that the praetor or an
aedile declares actionable.
obligatio litteris (ah-bla-gay-shee-oh lit-ar-is). [Latin
"written obligation"] 1. Hist. A written contract.
Also termed obligatio litterarum. 2. Scots law. A
contract that must be constituted in formal writing.
Also spelled obligatio literis. 3. Roman law. Literal
contract, strictly comprising only the nomen tran
scripticium. See NOMEN TRANSCRIPTICIUM.
obligatio naturalis (ah-bla-gay-shee-oh nach-a-ray
lis). [Latin "natural obligation"] Roman law. An obli
gation that is not legally enforceable, although it may
produce legal effects; an obligation deriving only from
the law of nature.
obligatio quasi ex contractu (ah-bla-gay-shee-oh
kway-sI [or -Zl] eks km-trak-t[y]oo). [Latin "obliga
tion from quasi-contract"] Roman law. An obligation
arising between two persons who have not contracted
with each other but have formed a relationship similar
to a contractual one, or where a payment is made in
error; a quasi-contractual obligation. See implied-in
law contract under CONTRACT.
obligatio quasi ex delicto (ah-bla-gay-shee-oh kway-sI
[or -zr] eks da-lik-toh). [Latin "obligation from
something resembling a tort"] Roman law. An obli
gation arising from a wrong that is not covered by
an obligatio ex delicto but that nonetheless creates
liability. Also termed obligatio quasi ex maleficio
(mal-<l-fish-ee-oh).
obligatio verborum (ah-bla-gay-shee-oh var-bor-am).
[Latin "a verbal obligation"] Roman law. An obliga
tion arising from a solemn question and answer using
specific words.
obligation, n. (18c) 1. A legal or moral duty to do or not
do something . Ihe word has many wide and varied
meanings. It may refer to anything that a person is
bound to do or forbear from doing, whether the duty
is imposed by law, contract, promise, social relations,
courtesy, kindness, or morality. 2. A formal, binding obligation
agreement or acknowledgment of a liability to pay a
certain amount or to do a certain thing for a partic
ular person or set of persons; esp., a duty ariSing by
contract. Also termed (in sense 2) civil obligation.
See DUTY (1); LIABILITY (1). [Cases: Contracts C~L]
3. Civil law. A legal relationship in which one person,
the obligor, is bound to render a performance in favor
ofanother, the obligee. La. Civ. Code art. 1756.
"[I]n English-speaking countries an unfortunate habit has
arisen of using 'obligation' in a lax manner as co extensive
with duties of every kind." Frederick Pollock, A First Book
ofJurisprudence 82 (1896).
"Obligation in its popular sense is merely a synonym for
duty. Its legal sense, derived from Roman law, differs
from this in several respects. In the first place, obliga
tions are merely one class of duties, namely, those which
are the correlatives of rights in personam. An obligation
is the vinculum jUFis, or bond of legal necessity, which
binds together two or more determinate individuals ....
Secondly, the term obligatio is in law the name, not merely
of the duty, but also of the correlative right. It denotes the
legal relation or vinculumjuFis in its entirety, including the
right of the one party, no less than the liability of the other.
Looked at from the point of view of the person entitled,
an obligation is a right; looked at from the point of view of
the person bound, it is a duty .... An obligation, therefore,
may be defined as a proprietary right in personam or a duty
which corresponds to such a right." John Salmond, Jurispru
dence 460 (Glanville L. Williams ed., 1Qth ed. 1947).
"[I]n its more general acceptation, the word 'obligation'
means something that the law or morals command a
person to do, a command that is made effective by the
imposition of a sanction if the person fails to obey or
comply. When given that reference, the word 'obligation' |
imposition of a sanction if the person fails to obey or
comply. When given that reference, the word 'obligation'
is made synonymous with the word 'duty.' In that sense it
is said, for example, that all citizens of a certain age are
under an obligation to fulfill their military duties ....
"In another sense. the word 'obligation' means an instru
ment in writing, however informal, whereby one party con
tracts with another for the payment of a sum of money. In
commercial law, for example, the word 'obligation' may
mean a negotiable instrument ....
"In the technical terminology of the civil codes, however,
the word 'obligation' means a legal bond that binds two
persons in such a way that one of them, the creditor or
obligee, is entitled to demand from the other, the debtor
or obligor, a certain performance." Saul Litvinoff, 5 Loui
siana Civil Law Treatise: The Law of Obligations 1-2 (2d
ed.2001).
absolute obligation. (17c) An obligation requiring strict
fulfillment according to the terms ofthe engagement,
without any alternatives to the obligor.
accessory obligation. (l7c) 1. An obligation that is
incidental to another obligation, For example, a
mortgage to secure payment of a bond is an acces
sory obligation. The primary obligation is to pay the
bond itself. Cf. primary obligation (1). 2. See second
aryobligation.
alternative obligation. (18c) An obligation that can be
satisfied in at least two different ways, at the choice of
the obligor. Also termed disju.n~tive obligation.
bifactoral obligation (bI-fak-tar-al). An obligation
created by two parties.
civil obligation. 1. See conventional obligation. 2. OBLI
GATION (2).
obligation 1180
community obligation. A debt or other obligation
incurred by either spouse after marriage in a commu
nity-property state. _ Such an obligation is presumed
to be an obligation of the community and not of the
individual spouse. [Cases: Husband and Wife (..'-:::>
268.J
conditional obligation. (17c) An obligation that
depends on an uncertain event. [Cases: Contracts
(;=0218.]
conjunctive obligation. An obligation composed
of multiple performances that can be separately
rendered or enforced; esp., an obligation in which
several objects are connected by and (not or) or are
in some other way clearly meant to be separately
included in the contract. -For example, a loan agree
ment's conjunctive obligation may require payment
of four loan installments and delivery of a deed of
trust. Each loan installment and the deed's delivery
is a separate, enforceable performance.
contractual obligation. An obligation arising from a
contract or agreement. [Cases: Contracts (;=0 1.]
conventional obligation. (ISc) An obligation that
results from agreement of the parties; a contractual
obligation. Also termed express obligation; civil
obligation. Cf. obediential obligation.
correal obligation (kor-ee-;}l or k;}-ree-;}l). Roman &
civil law. A joint and several obligation.
"A correal obligation means a plurality of obligations based
on a community of obligation: ajoint liability in respect of
the whole of the same debt or ajoint right in respect of the
whole of the same claim." Rudolph Sohm, The Institutes A
Textbook of the History and System of Roman Private Law
361 Uames Crawford Ledlie trans., 3d ed. 1907).
current obligation. (I8c) An obligation that is presently
enforceable, but not past due.
determinate obligation. An obligation that has a
specific thing as its object. -For example, an obli
gation to deliver the 1491 Venice edition of Vocabu
larium Iuris that once belonged to H.L.A. Hart can
be discharged only by delivering the specified book.
Cf. indeterminate obligation.
disjunctive obligation. See alternative obligation.
divisible obligation. An obligation that can be divided
without the consent of the parties. -Either the per
forming party or the receiving party may unilaterally
divide the obligation.
express obligation. See conventional obligation.
heritable obligation. (ISc) An obligation that may be
enforced by a successor of the creditor or against a
successor of the debtor. Also termed inheritable
obligation. [Cases: Descent and Distribution
imperfect obligation. See moral obligation.
implied obligation. See obediential obligation.
indeterminate obligation. 1. An obligation by which
the obligor is bound to deliver one of a certain
species of items. -For example, an obligation to
deliver a pre-1509 edition of Vocabularium Iuris can be discharged by delivering any edition published
before that date. 2. An obligation that is not specific
in amount or form, or is subject to being changed by
a third party. Cf. determinate obligation.
inheritable obligation. See heritable obligation.
joint obligation. (18c) 1. An obligation that binds
two or more debtors to a single performance for one
creditor. 2. An obligation that binds one debtor to a
single performance for two or more creditors.
moral obligation. (ISc) A duty that is based only on
one's conscience and that is not legally enforceable;
an obligation with a purely moral basis, as opposed
to a legal one. -In contract law, moral obligation may
support a promise in the absence of traditional con
sideration, but only if the promisor has previously
received some actual benefit from the promisee.
Also termed imperfect obligation; natural obligation.
[Cases: Contracts ('---"76.J
natural obligation. 1. Civil law. A moral duty that is
not enforceable by judicial action. -Natural obliga
tions are recognized in civil-law jurisdictions. While
they are not enforceable by judicial action, something
that has been performed under a natural obligation
may not be reclaimed. For example, if an indigent
patient in a hospital has no legal obligation to pay for
the treatment but does so anyway, that person cannot
later reclaim the payments voluntarily made. Also
termed obligatio naturalis. 2. See moral obligation.
obediential obligation (a-bee-dee-en-shal). (ISc) An
obligation imposed on a person because ofa situation
or relationship, such as an obligation of parents to
care for their children. -Also termed implied obliga
tion. Cf. conventional obligation.
perfect obligation. A legally enforceable obligation; one
that is recognized and sanctioned by positive law.
personal obligation. 1. An obligation performable only
by the obligor, not by the obligor's heirs or represent a
tives. 2. An obligation in which the obligor is bound
to perform without encumbering his or her property
for its performance.
primary obligation. (17c) 1. An obligation that arises
from the essential purpose ofthe transaction between
the parties. Cf. accessory obligation (1). 2. A funda
mental contractual term imposing a requirement on
a contracting party from which other obligations may
arise. Also termed principal obligation.
primitive obligation. The obligation designated as the
first to be satisfied.
principal obligation. See primary obligation (2).
pure obligation. Scots law. An absolute obligation
already due and immediately enforceable. -Also
termed pure debt.
secondary obligation. (I7c) A duty, promise, or under
taking that is incident to a primary obligation; esp., a
duty to make reparation upon a breach ofcontract.
Also termed accessory obligation.
1181 obnoxious
several obligation. 1. An obligation that binds two
or more debtors to separate performances for one
creditor. 2. An obligation that binds one debtor to
separate performances for two or more creditors.
simple obligation. (17c) An obligation that does not
depend on an outside event; an unconditional obli
gation.
single obligation. (17c) An obligation with no penalty
attached for nonperformance, as when one party
simply promises to pay 20 dollars to another.
solidary obligation (sol-<l-der-ee). Roman & civil
law. An obligation that binds each of two or more
debtors for the entire performance at the option of
the creditor. Solidary obligations are analogous to
common-law joint and several obligations.
"A solidary obligation means the separate liability of several
persons in respect of one and the same object. The normal
case of a solidary obligation is ajoint delict, as when two
or more persons, acting jointly, do damage to property
or commit a theft. So far as the obligation creates a duty
to pay damages, it is solidary. Each of the co-delinquents
is liable to make good the whole of the same damage."
Rudolph Sohm, The Institutes: A Textbook of the History
and System ofRoman Private Law 361-62 Uames Crawford
Ledlie trans., 3d ed. 1907).
statutory obligation. (18c) An obligation whether
to pay money, perform certain acts, or discharge
duties -that is created by or arises out of a statute,
rather than based on an independent contractual or
legal relationship.
substitute obligation. Civil law. An obligation that takes
the place of an extinguished obligation by novation.
See NOVATION. [Cases; Novation (;::::>4.]
unifactoral obligation (yoo-n<l-fak-t<lr-<ll). An obliga
tion created by one party.
obligation, mutuality of. See MUTUALITY OF OBLIGA
TION.
.obligational. See OBLIGATORY.
obligatio naturalis. See OBLIGATIO.
obligation bond. See general obligation bond under
BOND (3).
obligationes innominati. See INNOMINATE OBLIGA
TIONS.
Obligation of Contracts Clause. See CONTRACTS
CLAUSE.
obligations, law of. See LAW OF OBLIGATIONS.
obligatio quasi ex contractu. See OBLIGATIO.
obligatio quasi ex delicto. See OBLIGATIO.
obligatio quasi ex maleficiO. See obligatio quasi ex delicto
under OBLIGATIO.
obligatory (;)-blig-;)-tor-ee), adj. (14c) 1. Legally or
morally binding <an obligatory promise>. 2. Required;
mandatory <attendance is not obligatory>. 3. Creating
or recording an obligation <a writing obligatory>.
Also termed (rarely) obligational.
oblige (;)-blIj), vb. (14c) 1. To bind by legal or moral duty;
OBLIGATE. 2. To bind by doing a favor or service. obligee (ob-l<l-jee). (16c) 1. One to whom an obligation
is owed; a promisee, creditor, or donor benefiCiary. 2.
Under the Uniform Interstate Family Support Act, any
person to whom a duty ofsupport is owed. 3. Archaic.
One who is obliged to do something; OBLIGOR (1).
"Several dictionaries, such as The Random House College
Dictionary (rev. ed. 1988) and Webster's New World Dic
tionary (1979), define obligee in its etymological sense
['obliged'], as jf it were synonymous with obligor. Random
House, for example, defines obligee as 'a person who is
under obligation: but that meaning ought to be reserved
for obligor. An obligee, in modern usage. is one to whom
an obligation is owed." Bryan A. Garner, A Dictionary of
Modern Legal Usage 609 (2d ed. 1995).
obligor (ob-l<l-gor or ob-l<l-gor). (16c) 1. One who has
undertaken an obligation; a promisor or debtor. UCC
9-102(a)(59). 2. Under the Uniform Interstate Family
Support Act, any person who owes a duty of support.
3. Archaic. One who obliges another to do something;
OBLIGEE (1).
principal obligor. A person who is under a duty of
indemnity.
oblique (oh-bleek or ;)-bleek), adj. (15c) 1. Not direct in
descent; collateral <an oblique heir>. 2. Indirect; cir
cumstantial <oblique evidence>.
oblique evidence. See circumstantial evidence (1) under
EVIDENCE.
obUquus (ob-h-kw<ls). [Latin "oblique"] Hist. (Ofa line
ofdescent) collateral; indirect. Cf. RECTUS.
obliterate, vb. (16c) 1. To wipe out, rub off, or erase (a
writing or other markings). 2. To remove from exis
tence; to destroy all traces of. -obliteration, n.
obliterated corner. See CORNER.
oblivion. (14c) 1. The act or fact offorgetting or haVing
forgotten <the oblivion ofsleep>. 2. The state ofbeing
completely forgotten or unknown <a once-famous poli
tician now in oblivion>. 3. An official disregard of an
offense; pardon; amnesty <an act of oblivion by Par
liament>.
obloquy (ob-l<l-kwee). (15c) 1. Abusive or defamatory
language; CALUMNY. 2. The state or condition ofbeing
ill spoken of; disgrace or bad repute.
ob majorem cauteIam (ob m;}-jor-;)m kaw-tee-l<lm). [Law
Latin] Hist. For greater security.
ob metum perjurii (ob mee-t;)m p;)r-juur-ee-I). [Law
Latin) Scots law. On account of the fear ofperjury. See
METUS PERJURII.
ob non solutum canonem (ob non s;)-loo-t;)m k<l-noh
n;)m). [Law Latin] Sc |
em (ob non s;)-loo-t;)m k<l-noh
n;)m). [Law Latin] Scots law. On account of unpaid
canon or feu duty. A vassal could forfeit land if the
vassal failed to pay the feu duty for two (later five) years.
See FEU.
obnoxious, adj. (16c) 1. Offensive; objectionable <obnox
ious behavior>. 2. Contrary; opposed <a practice
obnoxious to the principle of equal protection under
the law>. 3. Archaic. Exposed to harm; liable to some
thing undesirable <actions obnoxious to criticism>.
ob pias causas 1182
ob pias causas (ob PI-;>S kaw-z;>s). [Latin] Hist. On
account of religious or charitable reasons; for dutiful
considerations.
"Provisions made by a son to his father ob pias causas
are those which proceed from the affectionate regard and
natural duty which the son is bound morally to render to
his father." John Trayner, Trayner's Latin Maxims 412 (4th
ed.1894).
ob poenam negligentiae (ob pee-n;>m neg-li-jen-shee
ee). [Law Latin] Hist. On account ofpunishment for
negligence. -lhe law punished those who were negli
gent in protecting their own interests.
ob pUblicam utilitatem (ob p;!b-li-bm yoo-til-a-tay
tam). [Latin] Hist. On account ofpublic utility; for the
public advantage.
obreption (ob-rep-shan). (15c) The fraudulent obtain
ing of a gift or dispensation, esp. from a sovereign or
ecclesiastical authority. Cf. SUBREPTION.
obreptione (ob-rep-shee-oh-nee). [Latin] Hist. By
surprise; by deceit.
ob reverentiam personae et metum perjurii (ob rev-a
ren-shee-;>m pdr-soh-nee et mee-tam pdr-juur-ee-I).
[Law Latin] Hist. On account ofreverence to the person
and the fear of perjury. -On this basis, certain wit
nesses could be excluded or could decline to answer
certain questions that might cause them to commit
perjury rather than admit to some act. This princi
ple is essentially the forerunner to the Fifth Amend
ment privilege against self-incrimination. See METUS
PERJURII.
obrogate (ob-rd-gayt), vb. (17c) Civil law. To modify or
repeal (a law) in whole or in part by passing a new law.
Cf. ABROGATE. -obrogation, n.
obscene, adj. (16c) Extremely offensive under contem
porary community standards ofmorality and decency;
grossly repugnant to the generally accepted notions
of what is appropriate. -Under the Supreme Court's
three-part test, material is legally obscene -and there
fore not protected under the First Amendment -if,
taken as a whole, the material (1) appeals to the prurient
interest in sex, as determined by the average person
applying contemporary community standards; (2)
portrays sexual conduct, as specifically defined by the
applicable state law, in a patently offensive way; and
(3) lacks serious literary, artistic, political, or scientific
value. Miller v. California, 413 U.S. 93 S.Ct. 2607
(1973). [Cases: Constitutional Law 1174, 2189;
Obscenity 1.]
"If there be no abstract definition, ... should not the word
'obscene' be allowed to indicate the present critical point
in the compromise between candor and shame at which the
community may have arrived here and now?" United States
v. Kennerlev, 209 F. 119, 121 (S.D.N.Y. 1913) (per Hand,J.).
obscene libel. See LIBEL.
obscenity, n. (16c) 1. The characteristic or state ofbeing
morally abhorrent or socially taboo, esp. as a result of
referring to or depicting sexual or excretory functions.
[Cases: Constitutional LawC~~82(1O), 90.4; Obscenity
C:1.] 2. Something (such as an expression or act) that has this characteristic. See CONTEMPORARY COMMU
NITY STANDARDS. Cf. INDECENCY.
"Obscenity is not deemed to be protected by the First
Amendment, and the operative legal tests for obscenity
are spongy and leave much to the vagaries ofjuries asked
to evaluate expert testimony on literary merit, offensive
ness, and other unmeasurables." Richard A. Posner, Law
and Literature: A Misunderstood Relation 329 (1988).
commercialized obscenity. (1956) Obscenity produced
and marketed for sale to the public.
observe, vb. (14c) To adhere to or abide by (a law, rule,
or custom) <a traffic citation for failing to observe the
speed limit>.
observer. Int'llaw. (1925) A representative of a country
or international organization who attends meetings
of an international body (such as the United Nations)
to which the observer's country does not belong.
Observers do not vote or sign documents, but they
are sometimes allowed to participate in discussions.
International Law V 10.45.]
obses (ob-seez), n. [Latin] A hostage in wartime. PI.
obsides.
obsignare (ob-sig-nair-ee), vb. [Latin] Civil law. To
seal up, as with money that has been tendered and
refused.
obsignation, n. A formal ratification or confirmation,
esp. by an official seal. -obsignatory (ob-sig-nd
tor-eel, adj.
obsignator (ahb-sig-nay-tor or -tdr), n. [Latin] Roman
law. One who affixes a seal, esp. as a witness, to a will
or other document. PI. obsignatores (ahb-sig-na-tor
obsolescence (ob-sd-Ies-dnts). (1832) 1. The process or
state of falling into disuse or becoming obsolete. 2.
A diminution in the value or usefulness ofproperty,
esp. as a result of technological advances. -For tax
purposes, obsolescence is usu. distinguished from
physical deterioration. Cf. DEPRECIATION. [Cases:
Taxation (;:::::2516.]
economic obsolescence. Obsolescence that results from
external economic factors, such as decreased demand
or changed governmental regulations. Also termed
external obsolescence. Cf. functional obsolescence.
external obsolescence. See economic obsolescence.
functional obsolescence. Obsolescence that results
either from inherent deficiencies in the property, such
as inadequate equipment or design, or from techno
logical improvements available after the use began.
Cf. economic obsolescence.
planned obsolescence. A system or policy of deliber
ately producing consumer goods that will wear out
or become outdated after limited use, thus indUcing
consumers to buy new items more frequently. Also
termed buill-in obsolescence.
obsolescent, adj. (18c) Going out of use; becoming
obsolete.
1183
obsolete, adj. (17c) No longer in general use; out-of
date.
obstacle preemption. See PREEMPTION.
obstante (ob-stan-tee or ab-). [Latin] Withstanding; hin
dering. See NON OBSTANTE VEREDICTO.
obsta principiis (ob-sta prin-sip-ee-is). [Latin] With
stand beginnings; resist the first approaches or
encroachments.
obstinate desertion. See DESERTION.
obstrict (ab-strikt), vb. To coerce. obstrictive, adj.
obstrictiveness, n.
'The element of coercion or obstrictiveness. The contrast
here is between voluntary and obstricted (or coerced)
conduct. The coercion need not be actual (objective), but
may be merely potential (subjective) by fear of the possible
force; as, when the faithful canine, Towser, susceptible to
the sight of a feline enemy, is tempted to pursue, but upon
his owner's stern voice and a shake of the stick, Towser
turns humbly back and crushes his impulse." John Henry
Wigmore, Problems of Law 7-8 (1920).
obstriction. Archaic. Obligation; bond.
obstructing process. See OBSTRUCTION OF PROCESS.
obstruction. (16c) 1. Something that impedes or hinders,
as in a street, river, or design; an obstacle. 2. The act
of impeding or hindering something; interference. 3.
Oil & gas. A common-law doctrine that suspends the
running of time under an oil-and-gas lease or extends
the lease for a reasonable period of time if rights
granted under the lease are intertered with by the lessor
or someone claiming through the lessor. [Cases: Mines
and Minerals ~78.l(1O).1
obstruction of justice. (1854) Interference with the
orderly administration of law and justice, as by giving
false information to or Withholding evidence from a
police officer or prosecutor, or by harming or intimi
dating a witness or juror . Obstruction of justice is a
crime in most jurisdictions. -Also termed obstructing
justice; obstructing public justice. [Cases: Obstructing
Justice ~1; Sentencing and Punishment C=>761.]
'The goal, --to proscribe every Wilful act of corruption,
intimidation or force which tends in any way to distort or
impede the administration of law either civil or criminal-
has been very largely attained, partly by aid of legislation.
And any punishable misdeed of such a nature which is not
recognized as a distinct crime, is usually called 'obstruction
of justice,' or 'obstructing justice,' - a common-law mis
demeanor." Rollin M. Perkins & Ronald N. Boyce, Criminal
Law 552 (3d ed. 1982).
obstruction of process. Interference of any kind with
the lawful service or execution of a writ, warrant, or
other process . Most jurisdictions make this offense
a crime. Also termed obstructing process; resisting
process. [Cases: Obstructing Justice e=--"3.]
obtaining property by false pretenses. See FALSE PRE
TENSES.
obtain the floor. Parliamentary law. To receive recogni
tion from the chair after claiming the floor. occasio
obtest (ob-or db-test), vb. (16c) 1. To call to or invoke
as a witness. 2. To ask for earnestly; beseech; implore.
3. To protest.
obtorto colla (ob-tor-toh kah-Ioh). [Latin] Roman law.
Dragged by the neck. Because a plaintiff could not sue
an absent defendant, the plaintiff was sometimes said to
have to drag a defendant obtorto collo to court.
obtulit se (ob-t[y]a-Iit see). [Latin] Offered himself . In
old English practice, these words were entered on the
record when one party appeared roffered himself") in
court against an opposing party who did not appear.
ob turpem causam (ob tar-pam [or -pem] kaw-zdm).
[Latin] For an immoral consideration; on account of
disgraceful consideration . An obligation ob turpem
causam (Le., founded on what was termed turpis causa)
could not be enforced.
obvention (ob-or ab-ven-shan). Eccles. law. An incoming
fee or revenue, esp. one that comes occasionally or inci
dentally.
obviate (ob-vee-ayt), vb. (16c) 1. To dispose of or do away
with (a thing); to anticipate and prevent from arising
<they obviated the growing problem through legisla
tion>. 2. To make unnecessary <the movant obviated
the all-night drafting session by getting the opponent
to agree to an extension>. obviation, n. -obviator,
n.
obvious error. A standard of review that applies to
unobjected-to actions and omissions at trial that are
so seriously prejudicial as to result in manifest injustice.
[Cases: Appeal and Error (':;=, 181; Criminal Law
1030(1); Federal Courts ~611.]
obviousness, n. (1921) Patents. The quality or state of
being easily apparent to a person with ordinary skill
in a given art, considering the scope and content ofthe
prior art, so that the person could reasonably believe
that, at the time it was conceived, the invention was
to be expected . An invention that is determined to
be obvious cannot be patented. Although an obvious
ness inquiry is rife with questions of fact, the ultimate
conclusion is a question oflaw. See 35 USCA 5103. Cf.
NONOBVIOUSNESS. [Cases: Patents ~16.] obvious,
adj.
obviousness double patenting. See DOUBLE PATENTING.
obviousness-type double patenting. 1. DOUBLE PATENT
1NG. 2. See judicially created double patenting under
DOUBLE PATENTING (2).
obviousness-type double-patenting rejection. See judi
cially created double-patenting rejection under REJEC
TION.
O.C. abbr. 1. OPE CONSII_IO. 2. Orphan's court. See probate
court under COURT.
OCC. abbr. OFFICE OF THE COMPTROLLER OF THE
CURRENCY.
occasio (a-kay-zhee-oh). [Law Latin] Hist. 1. A tax that a
lord imposed on his vassals or tenants for his necessity.
2. Hindrance or trouble; esp., vexatious litigation.
1184 occasional sale
occasional sale. See SALE.
occision (ok-sizh-Jn), n. Rist. A slaying, esp. of |
. See SALE.
occision (ok-sizh-Jn), n. Rist. A slaying, esp. of more
than one person.
occultatio thesauri inventi (ok-<ll-tay-shee-oh thi'l-saw-rI
in-ven-H). [Law Latin] Hist. The concealment of found
treasure.
occult marriage. See confidential marriage under
MARRIAGE (1).
occupancy. (16c) 1. The act, state, or condition ofholding,
possessing, or residing in or on something; actual pos
session, residence, or tenancy, esp. ofa dwelling or land.
_ In this sense, the term denotes whatever acts are done
on the land to manifest a claim ofexclusive control and
to indicate to the public that the actor has appropriated
the land. Hence, erecting and maintaining a substantial
enclosure around a tract ofland usu. constitutes occu
pancy of the whole tract.
constructive occupancy. A manifest intent to occupy
property physically, followed within a reasonable time
by actual occupancy.
2. The act of taking possession of something that has
no owner (such as abandoned property) so as to acquire
legal ownership. See ADVERSE POSSESSION. 3. The period
or term during which one owns, rents, or otherwise
occupies property. 4. The state or condition of being
occupied. 5. The use to which property is put.
occupant. (16c) 1. One who has possessory rights in, or
control over, certain property or premises. 2. One who
acquires title by occupancy.
general occupant. (18c) A person who occupies land in
the interim arising after the death of a pur autre vie
tenant but before the death ofthe person who serves
as the measuring life for the estate . The pur autre
vie tenant does not state who may occupy the land
after the death of the first tenant; the land can be
occupied by the first possessor of the land. -Also
termed common occupant. Cf. CESTUI QUE VIE.
special occupant. (I8c) A person specifically designated
in a conveyance as being entitled to a life estate ifthe
conveyee dies before the end ofthe life estate; specif.,
a pur autre vie tenant's heir who occupies land in the
interim between the death ofthe tenant and the death
ofthe person who serves as the measuring life for the
estate. _ A special occupancy can arise when the grant
to the pur autre vie tenant provides that possession is
for the life ofthe tenant, then to the tenant's heirs.
occupant statute. See BETTERMENT ACT.
occupare (ok-y;:J-pair-ee), vb. [Latin] Civil law. To seize
or take possession of (property); to enter (land) upon
a vacant possession.
occupatile (ok-Yi'l-pa-tIl). Hist. Property that has been
left by its rightful owner and is now possessed by
another.
occupatio (ok-YJ-pay-shee-oh), n. Roman law. A mode
of acquisition by which a person obtains absolute title
by first possessing a thing that previously belonged to no one, such as a wild bird or pearls on the shore. Cf.
RULE OF CAPTURE (2).
occupation. (14c) 1. An activity or pursuit in which a
person is engaged; esp., a person's usual or principal
work or business.
dangerous occupation. An occupation that involves an
appreciable risk ofdeath or serious bodily injury.
2. The possession, control, or use of real property;
OCCUPANCY. 3. TIle seizure and control of a territory
by military force; the condition of territory that has
been placed under the authority of a hostile army.
[Cases: War and National Emergency C=:>30(1).] 4.
The period during which territory seized by military
force is held.
occupational crime. See CRIME.
occupational-disability insurance. See INSURANCE.
occupational disease. (1901) A disease that is contracted
as a result of exposure to debilitating conditions or
substances in the course of employment. -Employ
ees who suffer from occupational diseases are eligible
for workers' compensation. Courts have construed the
term to include a variety of ailments, including lung
conditions (such as asbestosis or black lung), hearing
loss, and carpal tunnel syndrome. Also termed
industrial disease. [Cases: Workers' Compensation
C=:>547-551.]
"Certain diseases and infirmities which develop gradually
and imperceptibly as a result of engaging in particular
employments and which are generally known and under
stood to be usual incidents or hazards thereof, are distin
guished from those having a traumatic origin, or otherwise
developing suddenly and unexpectedly, by the terms
'occupational,' and 'industria!.'" 82 Am. Jur. 2d Workers'
Compensation 326 (1992).
occupational hazard. See HAZARD (1).
Occupational Safety and Health Act of 1970. A federal
statute that requires employers to (l) keep the workplace
free from recognized hazards that cause or are likely
to cause death or serious physical harm to employees,
and (2) comply with standards promulgated by the Sec
retary ofI~abor. 29 USCA 651-678. -Abbr. OSHA
(oh-shJ). [Cases: Labor and Employment
"Although OSHA has been one of the most controversial
pieces of protective legislation ever enacted, Congress has
not passed any substantive amendments to the Act. There
have been, however, some limitations on OSHA enforce
ment activity attached to appropriations bills. In addition,
OSHA has been affected by newer laws such as the Criminal
Fine Enforcement Act, the Equal Access toJustice Act, and
the Surface Transportation Assistance Act. ... The Act
covers employment in every state, the District of Columbia,
Puerto Rico. and all American territories, an estimated 5
million workplaces and 75 million employees." Mark A.
Rothstein, Occupational Safety and Health Law 7 (1990).
Occupational Safety and Health Administration. A
unit in the U.S. Department of Labor responsible for
setting and enforcing workplace safety and health stan
dards and for helping employers comply with them.
-It was created under the Occupational Safety and
Health Act of 1970. 'There are ten regional offices.
Abbr. OSHA. [Cases: Labor Relations C=:>9.6, 27.1.]
1185
Occupational Safety and Health Review Commis
sion. An independent, quasi-judicial commission that
resolves allegations of unsafe or unhealthy working
conditions. It was established by the Occupational
Safety and Health Act of 1970. -Abbr. OSHRC. [Cases:
Labor and Employment (';:::J2571.]
occupational tax. See occupation tax under TAX.
occupation tax. See TAX.
occupavit (ok-p-pay-vit). [Law Latin) Hist. A writ to
regain possession to land or a tenement from which
one was ejected in time ofwar.
occupying claimant. (1801) A person who claims the
right under a statute to recover for the cost ofimprove
ments done to land that is later found not to belong to
the person. [Cases: Improvements
occupying-claimant act. See BETTERMENT ACT.
occurrence. (1978) Something that happens or takes
place; specif., an accident, event, or continuing condi
tion that results in personal injury or property damage
that is neither expected nor intended from the stand
point of an insured party. This specific sense is the
standard definition of the term under most liability
policies. [Cases: Insurance (';:::J2101, 2275.]
occurrence-based liability insurance. See INSURANCE.
occurrence policy. See INSURANCE POLICY.
occurrence rule. Civil procedure. The rule that a limita
tions period begins to run when the alleged wrongful
act or omission occurs, rather than when the plaintiff
discovers the injury . This rule applies, for example, to
most breach-of-contract claims. See STATUTE OF LIMI
TATIONS. Cf. DISCOVERY RULE. [Cases: Limitation of
Actions <r~43.]
ocean. (14c) 1. The continuous body of salt water that
covers more than 70% of the earth's surface; the high
seas; the open sea. Cf. SEA. 2. Any ofthe principal geo
graphic divisions of this body. There are generally
considered to be five oceans: Atlantic, Pacific, Indian,
Arctic, and Antarctic.
ocean bill oflading. See BILL OF LADING.
ocean marine insurance. See INSURANCE.
OCHAMPUS. abbr. OFFICE OF CIVILIAN HEALTH AND
MEDICAL PROGRAMS OF THE UNIFORMED SERVICES.
ochlocracy (ah-klah-kra-see). Government by the lowest
classes; mob-rule.
octo tales (ok-toh tay-Ieez or taylz). [Latin "eight such"]
1. A supply of eight additional jurors for a trial. 2. A
writ commanding a sheriff to summon eight more
jurors for a trial. See TALES. [Cases: Jury(~~72.]
octroi (ok-troy or ahk-trwah), n. [French]l. Hist. A grant
or privilege of a charter by a sovereign. 2. A local tax
levied on certain goods that are brought into a city (esp.
in some European countries). 3. The place where such
a tax is collected. 4. 'The agency for collecting such a
tax. offender
octroy (ok-troy), vb. (Of a sovereign) to grant or concede
as a privilege.
old. abbr. 1. OVERDRAFT (1). 2. OVERDRAFT (2).
OD. abbr. 1. Overdose. 2. OVERDRAFT (1). 3. OVERDRAFT
(2).4. See ordinary seaman under SEAMAN.
odal (oh-da!), n. Hist. Land not subject to feudal duties
or burdens; ALLODIUM. Also termed odel; odhal;
odhall. -odal, adj. <an odal right>.
odd lot. See LOT (3).
odd-lot, adj. Of, relating to, or designating a worker who
is so substantially disabled as to be unable to find stable
employment in the ordinary labor market, and thus is
considered totally disabled and entitled to workers'
compensation benefits under the odd-lot doctrine <an
odd-lot worker who could find only sporadic employ
ment>. [Cases: Workers' Compensation C:::>847.]
odd-lot doctrine. Workers' compensation. The doctrine
that permits a finding of total disability for an injured
claimant who, though able to work sporadically, cannot
obtain regular employment and steady income and
is thus considered an "odd lot" in the labor market.
[Cases: Workers' Compensation (';:::J847.]
odel. See ODAL.
odhal. See ODAL.
odhall. See ODAL.
odio et atia. See DE ODIO ET ATIA.
odium (oh-dee-~m). (17c) 1. The state or fact of being
hated. 2. A state ofdisgrace, usu. resulting from detest
able conduct. 3. Hatred or strong aversion accompanied
by loathing or contempt. -odious, adj.
ODP. abbr. OFFICE OF DOMESTIC PREPAREDNESS.
oeconomicus (ee-ka-nom-a-k<:>s). [Law Latin fro Greek]
Hist. An executor ofa will.
oeconomus (ee-kon-~-m<:>s). [Latin fro Greek] Civil law.
A manager or administrator.
OEQ. abbr. OFFICE OF ENVIRONMENTAL QUALITY.
OES. abbr. BUREAU OF OCEANS AND INTERNATIONAL
ENVIRONMENTAL AND SCIENTIFIC AFFAIRS.
OFCCP. abbr. OFFICE OF FEDERAL CONTRACT COMPLI
ANCE PROGRAMS.
ofcounsel. See COUNSEL.
of course. (16c) 1. FollOWing the ordinary procedure
<the writ was issued as a matter of course>. 2. Natu
rally; obviously; clearly <we'll appeal that ruling, of
course>.
off-board, adj. Outside a major exchange; over-the
counter or between private parties <an off-board secu
rities transaction>. Also termed off-the-board. See
OVER-THE-COUNTER.
offender. (15c) A person who has committed a crime.
adult offender. (1831) 1. A person who has committed
a crime after reaching the age ofmajority. 2. A person
who, having committed a crime while a minor, has
been convicted after reaching the age of majority. 3.
1186 offense
A juvenile who has committed a crime and is tried
as an adult rather than as a juvenile. [Cases: Infants
C-'68.5.]
career offender. (1965) Under the federal-sentencing
guidelines, an adult who, after being convicted of
two violent felonies or controlled-substance felonies,
commits another such felony. u.s. Sentencing Guide
lines Manual 4Bl.l. [Cases: Sentencing and Punish
ment C::--> 1200-1426.]
first offender. (1884) A person who authorities believe
has committed a crime but who has never before
been convicted ofa crime. _ First offenders are often
treated leniently at sentencing or in plea negotiations.
[Cases: Criminal Law <8=:'273.1(2); Sentencing and
Punishment 868,1871,2066.]
habitual offender. 1. A person who commits the same
or a similar offense a certain number of times in
a certain period, as set by statute, and is therefore
eligible for an enhanced sentence. [Cases: Sentencing
and Punishment ~1200-1426.] 2. RECIDIVIST.
prior andpersistent offender. Missouri law. See RECID
IVIST.
repeat offender. (1956) A person who has been con
victed of a crime more than once; RECIDIVIST |
repeat offender. (1956) A person who has been con
victed of a crime more than once; RECIDIVIST. [Cases:
Sentencing and Punishment (>~~ 1202.]
situational offender. (1945) A first-time offender who
is unlikely to commit future crimes.
status offender. (1967) A youth who engages in conduct
that -though not criminal by adult standards -is
considered inappropriate enough to bring a charge
against the youth in juvenile court; a juvenile who
commits a status offense. Cf. youthful offender;
JUVENILE DELINQUENT. [Cases: Infants ~153.J
youthful offender. (1885) 1. A person in late adoles
cence or early adulthood who has been convicted of
a crime. _ A youthful offender is often eligible for
special programs not available to older offenders,
including community supervision, the successful
completion of which may lead to erasing the convic
tion from the offender's record. [Cases: Infants
69(3).] 2. JUVENILE DELINQUENT. -Also termed
young offender; youth offender. Cf. status offender.
offense (;dents). (l4c) 1. A violation ofthe law; a crime,
often a minor one. See CRIME. -Also termed criminal
offense. [Cases: Criminal Law.]
"The terms 'crime,' 'offense,' and 'criminal offense' are all
said to be synonymous, and ordinarily used interchange
ably. 'Offense' may comprehend every crime and misde
meanor, or may be used in a specific sense as synonymous
with 'felony' or with 'misdemeanor,' as the case may be, or
as signifying a crime of lesser grade, or an act not indict
able, but punishable summarily or by the forfeiture of a
penalty." 22 CJ,S. Criminal Law 3, at 4 (1989).
acquisitive offense. (1981) An offense characterized by
the unlawful appropriation of another's property.
This is a generic term that refers to a variety ofcrimes
(such as larceny) rather than a particular one. allied offense. (1896) A crime with elements so similar
to those ofanother that the commission of the one is
automatically the commission of the other. [Cases:
Criminal Law <8=:>29.]
anticipatory offense. See inchoate offense.
arrestable offense. English law. An offense for which
the punishment is fixed by law or for which a statute
authorizes imprisonment for five years, or an attempt
to commit such an offense. -This statutory category,
created in 1967, abolished the traditional distinction
between felonies and misdemeanors. Also spelled
(esp. in BrE) arrestable offence.
bailable offense. (18c) A criminal charge for which a
defendant may be released from custody after provid
ing proper security <misdemeanor theft is a bailable
offense>. [Cases: Bail
capital offense. (16c) A crime for which the death
penalty may be imposed. -Also termed capital crime.
[Cases: Sentencing and Punishment ~1666.]
civil offense. See public tort under TORT.
cognate offense. (1866) A lesser offense that is related
to the greater offense because it shares several of the
elements ofthe greater offense and is ofthe same class
or category. -For example, shoplifting is a cognate
offense oflarceny because both crimes require the
element oftaking property with the intent to deprive
the rightful owner ofthat property. Cf.lesser included
offense. [Cases: Indictment and Information
191.]
compound offense. An offense composed of one or
more separate offenses. -For example, robbery is a
compound offense composed oflarceny and assault.
continuing offense. (I8c) A crime (such as a conspir
acy) that is committed over a period of time, so that
the last act of the crime controls when the statute of
limitations begins to run. [Cases: Criminal Law
150.]
cumulative offense. (1833) An offense committed by
repeating the same act at different times.
divisible offense. (1847) A crime that includes one or
more crimes oflesser grade. -For example, murder
is a divisible offense comprising assault, battery, and
assault with intent to kill.
extraneous offense. (1881) An offense beyond or unre
lated to the offense for which a defendant is on trial.
[Cases: Criminal Law C=)369-374.]
graded offense. (1891) A crime that is divided into
various degrees of severity with corresponding levels
ofpunishment, such as murder (first-degree and sec
ond-degree) or assault (simple and aggravated). See
DEGREE (2). [Cases: Criminal Law~28.]
impeachable offense. See IMPEACHABLE OFFENSE.
inchoate offense. (1809) A step toward the commis
sion of another crime, the step in itself being serious
enough to merit punishment. -The three inchoate
offenses are attempt, conspiracy, and solicitation. The
1187
term is sometimes criticized (see quot. below). -Also
termed anticipatory offense; inchoate crime; prelimi
nary crime. [Cases: Conspiracy <>23.1; Criminal
Law <>44, 45.J
"These preliminary crimes have sometimes been errone
ously described as 'inchoate' offences. This is misleading
because the word 'inchoate' connotes something which is I
not yet completed, and it is therefore not accurately used '
to denote something which is itself complete, even though
it be a link in a chain of events leading to some object
which is not yet attained. The offence of incitement is fully
performed even though the person incited immediately
repudiates the suggested deed, a conspiracy is committed
although the conspirators have not yet moved to execute !
their purposed crime, and the performance of a criminal i
attempt must always have been reached before the end is I
gained. In all these instances it is the ultimate crime which '
is inchoate and not the preliminary crime, the pOSition
indeed being just the same as in the example imagined
above of a man who stole a revolver and committed other
crimes in order to effect his purpose of murder. There the
murder was inchoate, but the larceny and other crimes
(including the attempt) were completed." J.w. Cecil Turner, I
Kenny's Outlines ofCriminal Law 77 (l6th ed. 1952).
included offense. See lesser included offense.
index offense. (1980) One of eight classes of crimes
reported annually by the FBI in the Uniform Crime
Report. The eight classes are murder (and nonneg
ligent homicide), rape, robbery, aggravated assault,
burglary, larceny-theft, arson, and auto theft. -Also
termed index crime.
indictable offense. (18c) A crime that can be prosecuted
only by indictment. -In federal court, such an offense
is one punishable by death or by imprisonment for
more than one year or at hard labor. Fed. R. Crim. P.
7(a). See INDICTMENT. [Cases: Indictment and Infor
mation C=)3.]
international offense. See INTERNATIONAL CRIME.
joint offense. (l8c) An offense (such as conspiracy) com
mitted by the participation of two or more persons.
lesser included offense. (1908) A crime that is
composed of some, but not all, of the elements of a
more serious crime and that is necessarily committed
in carrying out the greater crime <battery is a lesser
included offense of murder>. -For double-jeopardy
purposes, a lesser included offense is considered the
"same offense" as the greater offense, so that acquittal
or conviction of either offense precludes a separate
trial for the other. -Also termed included offense;
necessarily included offense; predicate offense; predi
cate act. Cf. cognate offense. [Cases: Indictment and
Information <> 189, 191.J
liquor offense. Any crime involving the inappropri
ate use or sale ofintoxicating liquor. See DRAM-SHOP
LIABILITY; DRIVING WHILE INTOXICATED. [Cases:
Intoxicating Liquors <8:= 131-176.]
major offense. An offense the commission of which
involves one or more lesser included offenses, as
murder may include assault and battery. [Cases:
Indictment and Information <8:=" 191.]
military offense. See MILITARY OFFENSE. offense
multiple offense. (1908) An offense that violates more
than one law but that may require different proof so
that an acquittal or conviction under one statute does
not exempt the defendant from prosecution under
another. [Cases: Double Jeopardy <8:= 134.]
necessarily included offense. See lesser included
offense.
negligent offense. A violation of law arising from a
defective discharge of duty or from criminal negli
gence. See criminal negligence under NEGLIGENCE.
object offense. The crime that is the object ofthe defen
dant's attempt, solicitation, conspiracy, or complic
ity. For example, murder is the object offense in a
charge of attempted murder. Also termed target
offense.
offense against property. (1837) A crime against
another's personal property. -The common-law
offenses against property were larceny, embezzle
ment, cheating, cheating by false pretenses, robbery,
receiving stolen goods, malicious mischief, forgery,
and uttering forged instruments. Although the term
crimes against property, a common term in modern
usage, includes crimes against real property, the term
offense against property is traditionally restricted to
personal property. Cf. CRIMES AGAINST PROPERTY.
offense against public justice and authority. A crime
that impairs the administration of justice. -The
common-law offenses of this type were obstruc
tion of justice, barratry, maintenance, champerty,
embracery, escape, prison breach, rescue, mispri
sion offelony, compounding a crime, subornation of
perjury, bribery, and misconduct in office.
offense against the habitation. (1849) A crime against
another's house -traditionally either arson or
burglary.
offense against the person. (1854) A crime against
the body of another human being. The common
law offenses against the person were murder, man
slaughter, mayhem, rape, assault, battery, robbery,
false imprisonment, abortion, seduction, kidnapping,
and abduction. Cf. CRIMES AGAINST PERSONS.
offense against the public health, safety, comfort, and
morals. A crime trad itionally viewed as endangering
the whole of society. The common-law offenses of
this type were nuisance, bigamy, adultery, fornica
tion, lewdness, illicit cohabitation, incest, miscege
nation, sodomy, bestiality, buggery, abortion, and
seduction.
offense against the public peace. (18c) A crime that
tends to disturb the peace. -The common-law
offenses of this type were riot, unlawful assembly,
dueling, rout, affray, forcible entry and detainer, and
libel on a private person. [Cases: Criminal Law
45.15; Disorderly Conduct <>105, 128; Riot 1;
Unlawful Assembly C=~., 1.
petty offense. (17c) A minor or insignificant crime. 18
USCA 19. Cf. serious offense.
"[W]e find ... an apparent implication that a 'petty offense'
is not a 'crime.' Much could be said for such a position but
it is not the law at the present time. In the federal penal
code, for example, it is provided that any misdemeanor
'the penalty for which does not exceed imprisonment for
a period of six months or a fine of not more than $500,
or both, is a petty offense.'" Rollin M. Perkins & Ronald N.
Boyce, Criminal Law 22 (3d ed. 1982) (quoting 18 USCA
1(3.
political offense. See POLITICAL OFFENSE.
predicate offense. 1. An earlier offense that can be used
to enhance a sentence levied for a later conviction.
-Predicate offences are defined by statute and are
not uniform from state to state. 2. See lesser included
offense. [Cases: Sentencing and Punishment C=::>
1286-1309.]
public offense. (l6c) An act or omission forbidden by
law.
public-welfare offense. (1933) A minor offense that
does not involve moral delinquency and is prohib
ited only to secure the effective regulation ofconduct
in the interest of the community. -An example is
driving a car with one brake-light missing. -Also
termed regulatory offense; contravention.
regulatory offense. 1. A statutory crime, as opposed to
a common-law crime. 2. See public-welfare offense.
same offense.!. For double-jeopardy purposes, the same
criminal act, omission, or transaction for which the
person has already stood trial. See DOUBLE JEOPARDY.
[Cases: Double Jeopardy 132.1.] 2. For sentenc
ing and enhancement-of-punishment purposes, an
offense that is quite similar to a previous one.
second offense. An offense committed after conviction
for a first offense . The previous conviction, not the
indictment, forms the basis of the charge ofa second
offense.
separate offense. (l8c) 1. An offense arising out of the
same event as another offense but containing some
differences in elements of proof. A person may be
tried, convicted, and sentenced for each separate
offense. 2. An offense arising out of a different event
entirely from another offense under consideration. |
separate
offense. 2. An offense arising out of a different event
entirely from another offense under consideration.
serious offense. (i8c) An offense not classified as a
petty offense and usu. carrying at least a six-month
sentence. Also termed serious crime. Cf. petty
offense.
sexual offense. (1885) An offense involving unlawful
sexual conduct, such as prostitution, indecent
exposure, incest, pederasty, and bestiality.
status offense. (1960) 1. See status crime under CRIME.
2. A minor's violation of the juvenile code by doing
some act that would not be considered illegal if an
adult did it, but that indicates that the minor is beyond
parental controL -Examples include running away
from home, truancy, and incorrigibility. See JUVENILE
DELINQUENCY.
strict-liability offense. An offense for which the action
alone is enough to warrant a conviction, with no need to prove a mental state . For example, illegal parking
is a strict-liability offense. [Cases: Criminal Law C:::
21.]
substantive offense (s<)b-st;m-tiv). (I8c) A crime that
is complete in itself and is not dependent on another
crime for one ofits elements. Also termed substan
tive crime; substantive felony.
summary offense. (1928) An offense (such as a petty
misdemeanor) that can be prosecuted without an
indictment. Cf. indictable offense.
target offense. See object offense.
unnatural offense. See SODOMY.
unrelated offense. (1896) A crime that is independent
from the charged offense.
violent offense. (1965) A crime characterized by
extreme physical force, such as murder, forcible rape,
and assault and battery with a dangerous weapon.
Also termed violent felony. [Cases: Sentencing and
Punishment 793, 1243, 1261, 1283.]
2. Civil law. An intentional unlawful act that causes
injury or loss to another and that gives rise to a claim
for damages. La. Civ. Code art. 2315. -This sense of
offense is essentially the same as the common-law
intentional tort. [Cases: Torts C=::> 1Ol.]
quasi-offense. Civil law. A negligent unlawful act that
causes injury or loss to another and that gives rise to
a claim for damages. -This is equivalent to the com
mon-law tort of negligence. -Also termed quasi
delict. [Cases: Negligence C=::>200.]
3. Parliamentary law. A breach of order or other mis
conduct for which the applicable rules subject a member
to a penalty.
offensive (a-fen-siv), adj. (l6c) 1. Of or for attack <an
offensive weapon>. 2. Unpleasant or disagreeable to
the senses; obnoxious <an offensive odor>. 3. Causing
displeasure, anger, or resentment; esp., repugnant to the
prevailing sense of what is decent or moral <patently
offensive language and photographs>. See OBSCENE.
offensive and defensive league. Int'llaw. A league
binding the parties not only to aid one another when
attacked but also to support one another when attack
ing in offensive warfare.
offensive collateral estoppel. See COLLATERAL
ESTOPPEL.
offensive lockout. See LOCKOUT.
offensive strike. See STRIKE.
offensive treaty. See TREATY (1).
offensive-use waiver. (1993) An exemption from the
attorney-client privilege, whereby a litigant is consid
ered to have waived the privilege by seeking affirmative
relief, ifthe claim relies on privileged information that
would be outcome-determinative and that the opposing
party has no other way to obtain. Cf. AT-ISSUE WAIVER.
[Cases: Privileged Communications and Confidential
ity(;=111,168.]
1189
offer, n. (ISc) 1. The act or an instance of presenting
something for acceptance <the prosecutor's offer of
immunity>. 2. A promise to do or refrain from doing
some specified thing in the future, conditioned on
an act, forbearance, or return promise being given in
exchange for the promise or its performance; a display
of willingness to enter into a contract on specified
terms, made in a way that would lead a reasonable
person to understand that an acceptance, haVing been
sought, will result in a binding contract <she accepted
the $7S0 offer on the Victorian armoire>. Cf. ACCEP
TANCE. [Cases: Contracts C='16; Sales (;::22(.5), 23(.S);
Vendor and Purchaser C=16(1),17.]
"[Aln offer is, in effect, a promise by the offeror to do or
abstain from doing something, provided that the offeree
will accept the offer and payor promise to pay the 'price' of
the offer. The price, of course, need not be a monetary one.
In fact, in bilateral contracts, as we explained earlier, the
mere promise of payment of the price suffices to conclude
the contract, while in a unilateral contract it is the actual
payment of the price which is required." P.S. Atiyah, An
Introduction to the Law ofContract 44 (3d ed. 1981).
irrevocable offer (i-rev-;l-kd-b;ll). (188S) An offer that
includes a promise to keep it open for a specified
period, during which the offer cannot be withdrawn
without the offeror's becoming subject to liability
for breach of contract. Traditionally, this type of
promise must be supported by consideration to be
enforceable, but under DCC 2-20S, a merchant's
signed, written offer giving assurances that it will be
held open but lacking consideration is nonethe
less irrevocable for the stated period (or, ifnot stated,
for a reasonable time not exceeding three months).
Also termed (in the DCC) firm offer; (specif.) mer
chant's firm offer. [Cases: Contracts ~16; Sales
22; Vendor and Purchaser ~18(.S).]
"It has sometimes been asserted that an irrevocable offer is
'a legal impossibility.' See Langdell, Summary of the Law of
Contracts, 178, also 4; Wormser, 'The True Conception
of Unilateral Contracts,' 26 Yale Law Journal, 137, note;
Lee, Title Contracts, in Jenks' Dig. of Eng. Civ. Law, 195;
Ashley, Contracts, 13, A close analysis shows that there
is nothing impossible either in the conception itself or in
its application. If we define 'offer' as an act on the part of
the offeror. , . , then no offer can ever be revoked, for it
is of yesterday -it is indeed factum. But if we mean by
'offer' the legal relation that results from the offeror's act,
the powerthen given to the offeree of creating contractual
relations by doing certain voluntary acts on his part, then
the offer may be either revocable or irrevocable according I
to the circumstances. The idea of an irrevocable power is I
not at all an unfamiliar one." William R. Anson, Principles '
ofthe Law ofContract 53-54 n.3 (Arthur L. Corbin ed., 3d
Am. ed. 1919).
offer to all the world. (1861) An offer, by way of adver
tisement, of a reward for the rendering of specified
services, addressed to the public at large. _ As soon as
someone renders the services, a contract is made.
Also termed public offer.
offer to chaffer. See INVITATION TO NEGOTIATE.
public-exchange offer. A takeover attempt in which
the bidder corporation offers to exchange some of its
securities for a specified number ofthe target corpo
ration's voting shares. Cf. TENDER OFFER. offering
public offer. See offer to all the world.
standing offer. (1842) An offer that is in effect a whole
series ofoffers, each ofwhich is capable ofbeing con
verted into a contract by a distinct acceptance.
tender offer. See TENDER OFFER.
two-tier offer. See TWO-TIER OFFER.
3. A price at which one is ready to buy or sell; BID <she
lowered her offer to $200>. 4. ATTEMPT (2) <an offer to
commit battery>. offer, vb. -offeror, n.
"Where criminal assault has been given this dual scope,
a definition in terms of 'an attempt or offer' to commit a
battery is assumed to represent both grounds. The word
'offer,' it is said, signifies a threat that places the other
in reasonable apprehension of receiving an immediate
battery. It would be a mistake, however, to assume that the
word carried any such significance when it first appeared in
the definition of this offense. In one of its meanings, 'offer'
is a synonym of 'attempt.'" Rollin M. Perkins & Ronald N.
Boyce, Criminal Law 163 (3d ed. 1982).
offeree (ah-f;lr-ee). (1882) One to whom an offer is
made.
offer for sale by tender. See Dutch auction (4) under
AUCTION.
offer in compromise. See OFFER OF COMPROMISE.
offering, n. (ISc) 1. The act of making an offer; some
thing offered for sale. 2. The sale of an issue of securi
ties. Also termed (in BrE) flotation. See ISSUE (2).
[Cases: Securities Regulation C=) ILl 1.]
all-or-none offering. An offering that allows the issuer
to terminate the distribution if the entire block of
offered securities is not sold,
initial public offering. A company's first public sale of
stock; the first offering of an issuer's equity securi
ties to the public through a registration statement.
Abbr. lPO. [Cases: Securities Regulation (;:c.::>25.17.]
negotiated offering. A securities offering in which the
terms (including the underwriters' compensation)
have been negotiated between the issuer and the
underwriters.
primary offering. An offering of newly issued securi
ties.
private offering. An offering made only to a small
group of interested buyers. Also termed private
placement. [Cases: Securities Regulation (':::J 18.11.]
public offering. An offering made to the general
public.
registered offering. A public offering of securities reg
istered with the SEC and with appropriate state secu
rities commissions. -Also termed registered public
offering. [Cases: Securities Regulation C=2S.17.]
rights offering. An issue of stock-purchase rights
allowing shareholders to buy newly issued stock at
a fixed price, usu. below market value, and in pro
portion to the number of shares they already own.
Also termed privileged subscription. Cf. PREEMPTIVE
RIGHT.
secondary offering. 1. Any offering by an issuer ofsecu
rities after its initial public offering. 2. An offering
of preViously issued securities by persons other than
the issuer. See secondary distribution (1) under DIS
TRIBUTION.
special offering. An offering of a large block of stock
that, because of its size and the market in the par
ticular issue, is specially handled on the Hoor of the
stock exchange.
undigested offering. A public offering ofsecurities that
remain unsold because there is insufficient demand
at the offered price.
offering circular. A document, similar to a prospectus,
that provides information about a private securities
offering. -Also termed offering statement. [Cases:
Securities Regulation C=>2S.S0-2S.7S.]
offering price. See asking price under PRICE.
offering statement. See OFFERING CIRCULAR.
offer ofcompromise. (I8c) An offer by one party to settle
a dispute amicably (usu. by paying money) to avoid or
end a lawsuit or other legal action. -An offer of com
promise is usu. not admissible at trial as evidence ofthe
offering party's liability but may be admissible for other
purposes. Also termed offer in compromise; offer of
settlement. [Cases: Evidence C='212.]
offer ofjudgment. (1971) A settlement offer by one party
to allow a specified judgment to be taken against the
party. _ In federal procedure (and in many states), if the
adverse party rejects the offer, and ifa judgment finally
obtained by that party is not more favorable than the
offer, then that party must pay the costs incurred after
the offer was made. Fed. R. Civ. P. 68. [Cases; Federal
Civil Procedure C=>2396.S, 272S; Judgment C=>74.]
offer of performance. (I8c) Contracts. One party's
reasonable assurance to the other, through words or
conduct, of a present ability to fulfill contractual obli
gations. -When performances are to be exchanged
Simultaneously, each party is entitled to refuse to
proceed with the exchange until the other party makes
an appropriate offer of performance. Cf. TEKDER (1).
[Cases: Contracts C=>Z79; Sales 185.]
'The requirement of an offer of performance is to be
applied in the light of what is reasonably to be expected by
the parties in view of the practical difficulties of absolute
simultaneity and is subject to the agreement of the parties.
as supplemented or qualified by usage and course of
dealing." Restatement (Second) of Contracts 238 emt.
b (1979).
offer ofproof. (17c) Procedure. A presentation ofevidence
for the record (but outside the jury's presence) usu.
made after the judge has sustained an objection to the
admissibility of that evidence, so that the evidence can
be preserved on the record for an appeal of the judge's
ruling. -An offer of proof, which may also be used to
persuade the court to admit the evidence, consists of
three parts: (1) the evidence itself, (Z) an explanation of
the purpose for which it is offered (its relevance), and
(3) an argument |
the evidence itself, (Z) an explanation of
the purpose for which it is offered (its relevance), and
(3) an argument supporting admissibility. Such an offer
may include tangible evidence or testimony (through questions and answers, a lawyer's narrative description,
or an affidaVit). Fed. R. Evid. 103(a)(2). Also termed
avowal. [Cases: Criminal Law C=>670; Federal Civil
Procedure C'J2013; Trial C~':::>44.]
offer ofsettlement. See OFFER OF COMPROMISE.
offeror (ah-f<'lr-or). (1882) One who makes an offer.
offer to all the world. See OFFER.
offer to chaffer. See INVITATION TO :NEGOTIATE.
office. (l3c) 1. A position of duty, trust, or authority,
esp. one conferred by a governmental authority for a
public purpose <the office ofattorney general>. [Cases:
Officers and Public Employees <>1.] 2. (often cap.) A
division of the U.S. government ranking immedi
ately below a department <the Patent and Trademark
Office>. [Cases: United States ~29.]3. A place where
business is conducted or services are performed <a law
office>.
alienation office. English law. An office for the recovery
offines levied upon writs of covenant and entries.
lucrative office. 1. A pOSition that produces fee revenue
or a salary to the office holder. 2. A position that yields
a salary adequate to the services rendered and exceed
ing incidental expenses; a position whose pay is tied to
the performance ofthe office's duties. [Cases: Officers
and Public Employees C=>30.1.]
ministerial office. An office that does not include
authority to exercise judgment, only to carry out
orders given by a superior office, or to perform duties
or acts required by rules, statutes, or regulations.
[Cases: Officers and Public Employees C=> 103.]
office ofhonor. An uncompensated public position of
considerable dignity and importance to which public
trusts or interests are confided. [Cases: Officers and
Public Employees
Office action. Patents & Trademarks. A patent exam
iner's communication with a patent applicant, usu. to
state the reasons for denying an application. [Cases:
Patents C=>108.]
advisory Office action. An office action in which the
patent examiner replies to an applicant's response
following final rejection of the application. -An
advisory action addresses the status ofan amendment
made in the applicant's response to the final rejection,
indicates the status ofthe claims for appeal, addresses
an affidavit or exhibit, or responds to a request for
reconsideration. -Also termed advisory action.
final Office action. A patent examiner's determina
tion that an application is not allowable. _ The appli
cant may file a continuation application, appeal the
decision, or request continued prosecution. Cf. first
office action. [Cases: Patents ~-:: 108.]
first Office action. A patent examiner's initial reply to a
patent application. -Ifthe examiner's first report is a
rejection ofall or most ofthe application's claims, it is
termed a shotgun rejection. To avoid abandoning the
prosecution, the applicant must respond by answer
1191
ing the examiner's reasons for rejection, amending
the claims, or both. Cf. final office action.
office audit. See AUDIT.
office-block ballot. See BALWT (4).
office classification. See CLASSIFICATION OF PATENTS.
office expense. See OVERHEAD.
office grant. See GRANT.
office hours. Military law. See nonjudicial punishment
under PUNISHMENT.
office lawyer. See OFFICE PRACTITIONER.
office ofchild-support enforcement. Family law. A state
or federal agency established under Title IV(D) ofthe
Social Security Act to help custodial parents collect
child support. 42 USCA 651 et seq . State offices
of child-support enforcement generally come under
the aegis of the Department of Human Resources.
The federal Office of Child Support Enforcement has
established the Parent-Locator Service. [Cases: Child
Support C=>465.]
Office ofCivilian Health and Medical Programs ofthe
Uniformed Services. A unit in the U.S. Department
of Defense responsible for administering a civilian
health and medical care program for the spouses and
dependent children of active members of the armed
forces and for retired military personnel, their spouses
and children. Abbr. OCHAMPUS. [Cases: Armed
Services C=>50.]
Office of Commuuity Planning and Development. A
unit in the U.S. Department of Housing and Urban
Development responsible for administering grant
programs to help communities plan and finance their
growth and development, increase their capacity to
govern, and provide shelter and services for homeless
people. -Abbr. CPD.
Office of Counterintelligence. An office in the U.S.
Department of Energy responsible for conducting
counterintelligence programs involving industrial
intelligence activities of foreigners and foreign gov
ernments.
Office of Domestic Preparedness. A unit in the U.S.
Department of Homeland Security responsible for
helping state and local governments train and equip
emergency responders, plan and conduct disaster
drills, and offer other technical assistance to prevent,
plan for, and respond to acts of terrorism . The Office
was transferred from the U.S. Department of Justice in
2003. -Abbr. ODP.
Office of Enrollment and Discipline. Patents. The
division of the U.S. Patent and Trademark Office
charged with licensing patent attorneys and patent
agents, and with hearing complaints involving their
misconduct. The office is authorized to sanction prac
titioners, and to suspend or disbar them from practice
before the PTO. Its authority is concurrent with state
disciplinary procedures. -Abbr. OED. [Cases: Patents
Cc:::'97.] Office of Initial Patent Examination
Office of Environmental Quality. An office in the Exec
utive Office of the President responsible for supporting
the Council on Environmental Quality. Abbr.OEQ.
See COUNCIL ON ENVIRONMENTAL QUALITY.
Office of Fair Housing and Equal Opportunity. A unit
in the U.S. Department ofHousing and Urban Devel
opment responsible for administering the fair-housing
laws and regulations that prohibit discrimination in
public and private housing. Abbr. FHEO. [Cases:
Civil Rights C=> 1302.]
Office of Federal Contract Compliance Programs. lhe
division of the Employment Standards Administration
in the U.S. Department of Labor responsible for enforc
ing contractors' compliance with Executive Order
11246, which prohibits job discrimination on the basis
of race, color, gender, religion, or national origin.
Abbr. OFCCP. See EMPLOYMENT STANDARDS ADMINIS
TRATION; DEPARTMENT OF LABOR. [Cases: Civil Rights
C=> 1302, 1503.]
Office of Federal Housing Enterprise Oversight. A
unit in the U.S. Department of Housing and Urban
Development responsible for overseeing the financial
safety and soundness of the Federal National Mortgage
Association (Fannie Mae) and the Federal Home
Loan Mortgage Corporation (Freddie Mac). Abbr.
OFHEO.
Office of Government Ethics. An independent agency
in the executive branch responsible for issuing rules
and regulations about ethical conduct and financial
disclosure, providing training in ethics, monitoring
the ethics of practices in departments and agencies,
and giving guidance on matters ofethics. The agency
was established under the Ethics in Government Act of
1978 and became a separate agency in 1988. Abbr.
OGE. [Cases: United States (::::::>41.]
Office of Healthy Homes and Lead Hazard Control.
A unit office in the U.S. Department of Housing and
Urban Development responsible for informing the
public about the dangers of lead poisoning, esp. by
lead-based paint; developing methods ofdetection and
abatement; encouraging states and local governments
to develop prevention programs; and implementing
the Department's Healthy Home Initiative to warn the
public of other potential household hazards. Abbr.
OHHLHC.
office of honor. See OFFICE.
Office of Housing. A unit in the U.S. Department of
Housing and Urban Development responsible for
administering aid for building and financing new
and rehabilitated housing and for preserving existing
hOUSing.
Office of Initial Patent Examination. The section of
the U.S. Patent and Trademark Office that determines
whether a new patent application is in the correct form,
whether the claims are dependent or independent,
how much the application fee should be, and to which
examining group the application should be assigned.
Abbr. OIPE. [Cases: Patents (:=104.]
1192 Office of Labor-Management Standards
Office of Labor-Management Standards. The division
of the Employment Standards Administration in the
U.S. Department of Labor responsible for enforcing
the Labor-Management Reporting and Disclosure Act
of 1959, which establishes standards for labor-union
management and financial operations. _ The Act sets
out a list of union-members' rights, including the right
to fair elections of union leaders, the right to know
about the union's administrative policies and finan
cial transactions, and the right to have union funds
safeguarded. -Abbr. OLMS. See EMPLOYMENT STAN
DARDS ADMINISTRATION.
Office of Management and Budget. An office in the
Executive Office ofthe President responsible for helping
the President prepare the annual federal budget and
supervising its administration. _ It was originally
established by Reorganization Plan No.1 of1939 as the
Bureau of the Budget. -Abbr. OMB. [Cases: United
States (;::;:)79.]
Office of Medical Services. A unit in the U.S. Depart
ment ofState responsible for providing primary health
care services for the Department's overseas employees
and their eligible family members. -Abbr. MED.
Office of National Drug Control Policy. An office in
the Executive Office of the President responsible for
coordinating efforts at federal, state, and local levels
to control illegal drug abuse and for devising national
antidrug activities. -The office was created by the
National Narcotics Leadership Act of 1988.21 USCA
1701-1713. -Abbr. ONDCP.
Office of Oceanic and Atmospheric Research. See
NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRA
TION.
Office of Passport Services. See BUREAU OF CONSULAR
AFFAIRS.
Office of Personnel Management. The independent
federal agency that administers the personnel system
of the government by helping agencies recruit and
evaluate employees; manage retirement and health
benefit systems; coordinate temporary assignments;
conduct investigations; and develop leadership in the
federal executive service. _ The agency was established
by Reorganization Plan No.2 of 1978 and given various
functions of the former U.S. Civil Service Commission
by Executive Order 12107 of 1978. -Abbr. OPM. See
CIVIL SERVICE COMMISSION. [Cases: Officers and Public
Employees (;::;: 11.8.J
Office of Policy Development. An office in the Execu
tive Office of the President comprising the Domestic
Policy Council and the National Economic Council.
It was established in 1993 by Executive Order 12859.
Abbr.OPD.
Office of Private Sector Liaison. A unit in the U.S.
Department of Homeland Security responsible for
working with individual businesses through trade asso
ciations and other nongovernmental organizations on
matters of security. Office of Protocol. A unit in the U.S. Department of
State responsible for advising the President, the Vice
President, the Secretary of State, and other U.S. officials
on matters of custom and decorum, and for planning
and hosting state dinners and other affairs, esp. involv
ing foreign heads of state and other diplomats. -The
Office also manages the Blair House, where diplomatic
visitors often stay. It is run by the Chief ofProtocol.
Office of Public and Indian Housing. A unit in the
U.S. Department of Housing and Urban Development
responsible for providing technical assistance and
operating subsidies to public-housing agencies and
Indian housing authorities in developing low-income
housing. -Abbr. PlH.
Office of Science and Technology Policy. An office
in the Executive Office of the President responsible
for advising the President on scientific, engineering,
and technological development and for coordinat
ing research and development programs. -The office
was created by the National Science and Technology
Policy, Organization, and Priorities Act of 1976.
Abbr.OSTP.
Office of Special Counsel. An independent federal
agency that investigates activities prohibited by the
civil-service laws, rules, and regulations and, if the
investigation warrants it, litigates the matter before
the Merit Systems Protection Board. _ The agency was
established by Reorganization Plan No.2 of 1978. -
Abbr. OSc. [Cases: Officers and Public Employees
72.23.]
Office of Special Investigations. A component of the
criminal division of the Department of Justice that
identifies and investigates suspected perpetrators of
human-rights violations abroad, after the suspects have
entered, or tried to enter, the United States. -Originally
created in 1948 to seek out Nazi and Axis persecutors,
the Office's mission has since been expanded to include
other transgressors of human rights. Abbr.OS1.
Office of State and Local Government Coordination.
A unit in the U.S. Department of Homeland Security
responsible for coordinating security matters with state
and local governments.
Office of Surface Mining Reclamation and Enforce
ment. A unit in the U.S. Department of the Interior
responsible for protecting against the adverse effects
of surface coal mining by enforcing laws relating to
surface mining and restoration and by assisting states
and local governments, which have primary responsi
bility in this area. -Abbr. OSM.
Office of Tax-Shelter Analysis. An office in the U.S.
Internal Revenue Service responsible for identifying |
. OSM.
Office of Tax-Shelter Analysis. An office in the U.S.
Internal Revenue Service responsible for identifying
and investigating questionable tax shelters. -The office
was created in 2000. -Abbr. OTSA.
Office of Technology Assessment. A former office in the
legislative branch of the federal government responsible
for analyzing public-policy issues relating to science
and technology. -The Office was active from 1972 to
1995. Abbr.OTA.
1193
Office ofTechnology Policy. See TECH",OLOGY ADMIN
ISTRATION.
Office of the Comptroller ofthe Currency. An office
in the U.S. Department of the Treasury responsible
for regulating approximately 2,600 national banks by
examining them; approving or denying applications
for bank charters, branches, or mergers; closing banks
that fail to follow rules and regulations; and regulating
banking practices. Abbr. OCe. [Cases: Banks and
Banking (;::::c235.]
Office of the United States Trade Representative. An
office in the Executive Office ofthe President respon
sible for setting and administering overall trade policy.
It was established under Reorganization Plan No.3
of 1979. 19U5CA2171.
Office of Thrift Supervision. An office in the U.S.
Department ofthe Treasury responsible for regulating
and examining thrift institutions to ensure that they
are financially sound. Abbr.OTS. [Cases: Banks and
Banking (;::::)290,309,451; Building and Loan Associa
tions (:::::>2.1, 42.]
Office of Workers' Compensation Programs. The
division of the Employment Standards Administra
tion in the U.S. Department of Labor responsible for
processing and adjudicating claims under the Federal
Employees' Compensation Act, the Longshore and
Harbor Workers' Compensation Act, the Black Lung
Benefits Reform Act, and similar worker-benefits
statutes and regulations. Abbr. OWCP. See EMPLOY
MENT STANDARDS ADMINISTRATION. [Cases: Workers'
Compensation (::::) 1076.]
office practice. (1872) A law practice that primarily
involves handling matters outside of court, such as
negotiating and drafting contracts, preparing wills and
trusts, setting up corporations and partnerships, and
advising on tax or employment issues; a transactional
law practice.
office practitioner. (1933) A lawyer who does not litigate;
an attorney whose work is accomplished primarily in
the office, without court appearances. -Also termed
office lawyer; transactional lawyer.
officer. (14c) L A person who holds an office of trust,
authority, or command. In public affairs, the term
refers esp. to a person holding public office under a
national, state, or local government, and authorized
by that government to exercise some specific function.
In corporate Jaw, the term refers esp. to a person elected
or appointed by the board of directors to manage the
daily operations ofa corporation, such as aCEO, presi
dent, secretary, or treasurer. Cf. DIRECTOR (2). lCases:
Officers and Public Employees (;::::J 1.]
acting officer. One performing the duties ofan office
usu. temporarily -but who has no claim oftitle to
the office. [Cases: Officers and Public Employees
77.]
administrative officer. I. An officer of the executive
department of government, usu. of inferior rank.
[Cases: Officers and Public Employees (;::::c 1.] 2. A officer
ministerial or executive officer, as distingUished
from a judicial officer. 3. Family law. An official, other
than a judge, who is appointed to preside over child
support matters. See CHILD-SUPPORT-ENFORCEMENT
AGENCY. Cf. MASTER (2); JUDGE.
attendance officer. See TRUANCY OFFICER.
chief executive officer. See CHIEF EXECUTIVE
OFFICER.
constitutional officer. A government official whose
office is created by a constitution, rather than by a
statute; one whose term ofoffice is fixed and defined
by a constitution. [Cases: States (;::::c46.]
corporate officer. An officer ofa corporation, such as a
CEO, president, secretary, or treasurer. [Cases: Cor
porations (;::::c296.]
county officer. An officer whose authority and jurisdic
tion are confined to the limits of the county served.
[Cases: Counties (;::::c61.]
court officer. See OFFICER OF THE COURT.
de facto officer. See officer de facto.
de jure officer. See officer de jure.
escrow officer. See escrow agent under AGENT (2).
executive officer. See EXECUTIVE (2).
fiscal officer. 1. 1be person (such as a state or county
treasurer) charged with the collection and distribu
tion ofpublic money. [Cases: Counties (;::::c90.]2. The
person (such as a chieffinancial officer) whose duties
are to oversee the financial matters ofa corporation
or business.
health officer. See HEALTH OFFICER.
hearing officer. 1. ADMINISTRATIVE-LAW lUDGE. 2. See
judicial officer (3).
inferior officer. 1. An officer who is subordinate to
another officer. 2. A United States officer appOinted
by the President, by a court, or by the head ofa federal
department . Senate confirmation is not required.
See United States officer. [Cases: United States
35.)
judicial officer. (l7c) 1. A judge or magistrate. [Cases:
Judges (:::J") 1; Justices ofthe Peace (;=:1; United States
Magistrates (;::::c 11.] 2. Any officer ofthe court, such
as a bailiff or court reporter. [Cases: Courts
55-58.] 3. A person, usu. an attorney, who serves in an
appointive capacity at the pleasure of an appointing
judge, and whose actions and decisions are reviewed
by that judge. -Also termed magistrate; referee;
special master; commissioner; hearing officer.
juvenile officer. (J 91 1) A juvenile-court employee,
sometimes a social worker or probation officer, who
works with the judge to direct and develop the court's
child-welfare work. -Also termed county agent.
[Cases: Courts Infants C:::> 17,208.]
law-enforcement officer. See LAW-ENFORCEMENT OFFI
CER.
legislative officer. 1. A member of a federal, state, or
municipal legislative body. [Cases: Municipal Corpo
rations C=>80; States C~::>28; United States C=>7.l.]2.
A government official whose duties relate primarily
to the enactment oflaws, such as a federal or state
senator, representative, or assembly member. -State
and federal constitutions generally restrict legisla
tive officers' duties to the enactment oflegislation. But
legislative officers occasionally exercise judicial func
tions, such as presenting or hearing cases of impeach
ment of other government officers.
ministerial officer. An officer who primarily executes
mandates issued by the officer's superiors . One who
performs specified legal duties when the appropriate
conditions have been met, but who does not exercise
personal judgment or discretion in performing those
duties. [Cases; Municipal Corporations C"=> 123.]
municipal officer. A person who occupies a municipal
office usu. mandated by statute or charter and
who may be required to take an oath and exercise
sovereign authority in carrying out public duties, with
compensation incident to the office irrespective of the
actual services rendered. [Cases: Municipal Corpora
tions ~'-=> 123.J
officer de facto (di fak-toh). 1. An officer who exercises
the duties ofan office under color ofan appointment
or election, but who has failed to qualify for office
for anyone ofvarious reasons, as by being under the
required age, having failed to take the oath, having
not furnished a required bond, or having taken
office under a statute later declared unconstitutional.
[Cases: Officers and Public Employees C=>39.)2. Cor
porations. One who is acting under color of right and
with apparent authority, but who is not legally a cor
porate officer . The corporation is bound by all acts
and contracts ofan officer de facto in the same way as
it is with those ofan officer de jure. Also termed de
facto officer. [Cases; Corporations C=>289.]
officer de jure (di juur-ee). L An officer who exercises
the duties of an office for which the holder has ful
filled all the qualifications. [Cases: Officers and Public
Employees <::=35.] 2. A duly authorized corporate
officer. Also termed de jure officer.
peace officer. See PEACE OFFICER.
police officer. See POLICE OFFICER.
presiding officer. See PRESIDING OFFICER (3) under
OFFICER (2).
principal officer. L An officer with the most authority
of the officers being considered for some purpose. 2. A
United States officer appointed by the President with
the advice and consent ofthe Senate. Also termed
primary officer. See United States officer. [Cases:
United States C=>35.J
probation officer. A government officer who supervises
the conduct of a probationer. [Cases: Courts C=>55;
Sentencing and Punishment C=> 1988.]
recording officer. See SECRETARY (3). safety officer. An OSHA employee responsible for
investigating the safety practices and procedures at
a place of business. See OCCUPATIONAL SAFETY AND
HEALTH ACT OF 1970. [Cases; Labor and Employment
state officer. L A person whose authority or jurisdic
tion extends to the general public or state as a whole,
as distinguished from an officer whose authority and
jurisdiction are confined to the limits of a particu
lar political subdivision. [Cases; States C=44.] 2. An
officer exercising authOrity under a state rather
than the federal government.
subordinate officer. 1. An officer ranking below and
performing under the direction of another officer.
2. An independent officer subject only to statutory
direction.
truancy officer. See TRUANCY OFFICER.
trust officer. A trust-company official responsible
for administering funds held by the company as a
trustee.
United States officer. An officer appointed under
the authority of the federal government; specif., an
officer appointed in the manner described in Article
II, section 2, of the U.S. Constitution. [Cases; United
States
2. Military law. One who holds a commission in the
armed services, or a military post higher than that of
the lowest ranks; a person who has a command in the
armed forces. Also termed military officer. [Cases:
Armed Services C=>6.]
brevet officer (brd-vet or brev-it). A military officer who
holds a nominal rank above that for which the person
is paid. [Cases: Armed Services C=>8.)
commissioned officer. An officer in the armed forces
who holds grade and office under a presidential com
mission. [Cases; Armed Services C=>6.]
general officer. A military officer whose command
extends to a body of forces composed of several regi
ments. -Examples are generals, lieutenant-gener
als, major-generals, and brigadiers. [Cases; Armed
Services C=>8.]
legal officer. 1. The officer responsible for handling
military justice within a command. 2. 1he adviser
and assistant to a commanding officer on military
law matters. 3. Any commissioned officer of the Navy,
Marine Corps, or Coast Guard who has been desig
nated to perform legal duties for a command.
noncommissioned officer. An enlisted person in the
Army, Air Force, or Marine Corps in certain pay
grades above the lowest pay grade. _ Examples are
sergeants and corporals.
officer ofthe day. An officer who has charge, for the
time being, of the guard, prisoners, and police of
a military force or camp. -Also termed orderly
officer.
officer of the guard. A commissioned officer whose
detail is to command the guard of a military force
or camp. The officer of the guard is under the
command of the officer of the day.
orderly officer. See officer ofthe day.
petty officer. An enlisted person in the Navy or Coast
Guard with a pay-grade of E-4 or higher.
preliminary-inquiry officer. The person, usu. an officer,
who conducts a preliminary inquiry.
presiding officer. 1. The president of the court in a
special court-martial that does not have a military
judge. 2. In a court-martial with a military judge, the
military judge. [Cases: Military Justice (;::::881.] 3.
An officer who presides, esp. over a civilian court or
deliberative assembly. See CHAIR (1); PRESIDE.
superior commissioned officer. A commissioned officer
who is superior in command or rank.
warrant officer. 1. A person who holds a commission
or warrant in a warrant-officer grade . A warrant
officer's rank is below a second lieutenant or ensign
but above cadets, midshipmen, and enlisted person
nel. 2. See SERGEA:-.1T-AT-ARMS (4).
officer ofthe court. (l6c) A person who is charged with
upholding the law and administering the judicial
system. Typically, officer ofthe court refers to a judge,
clerk, bailiff, sheriff, or the like, but the term also applies
to a lawyer, who is obliged to obey court rules and who
owes a duty ofcandor to the court. -Also termed court
officer. [Cases: Courts C=>55-58.]
officer ofthe peace. See PEACE OFFICER.
officer's report. See REPORT.
official (J-fish-JI), adj. (16c) 1. Ofor relating to an office
or position of trust or authority <official duties>. 2.
Authorized or approved by a proper authority <a com
pany's official policy>.
official, n. (14c) 1. One who holds or is invested with a
public office |
s official policy>.
official, n. (14c) 1. One who holds or is invested with a
public office; a person elected or appointed to carry out
some portion of a government's sovereign powers.
Also termed public official. [Cases: Officers and Public
Employees C=> 1.]2. One authorized to act for a corpo
ration or organization, esp. in a subordinate capacity.
[Cases: Corporations C:::"303.] 3. (usu. cap.) OFFICIAL
PRINCIPAL.
official bond. See BOND (2).
official-capacity suit. See SUIT.
official corruption. See official misconduct under MIS
CONDUCT.
Official Gazette. Patents & Trademarks. Either of two
weekly publications of the U.S. Patent and Trademark
Office: one for patents, publishing abstracts of new
patents; and one for trademarks, publishing samples of
trademarks proposed for registration. Abbr.OG.
official liability. See LIABILITY.
official misconduct. See MISCONDUCT.
official newspaper. See NEWSPAPER.
official principal. (usu. cap.) Eccles. law. A person
appointed by an archbishop, bishop, or archdeacon to exercise jurisdiction in and preside over an ecclesiasti
cal court. Sometimes shortened to official.
official privilege. See PRIVILEGE (1).
official report. See REPORT (3).
official shorthand writer. See COURT REPORTER (1).
official use. See USE (4).
officina brevium (aw-fJ-SI-nd bree-vee-dm). [Latin
"workshop ofwrits"] Hist. OFFICINA JUSTITIAE.
officina justitiae (aw-fd-sI-nd jJs-tish-ee-ee). [Latin
"workshop of justice"] Hist. The court of chancery,
where the king's writs were issued. -Also termed
officina brevium. See CHANCERY.
officio. See EX OFFICIO.
officious intermeddler (J-fish-Js). (18c) A person who
confers a benefit on another without being requested
or having a legal duty to do so, and who therefore has
no legal grounds to demand restitution for the benefit
conferred. Sometimes shortened to intermeddler.
Also termed (archaically) volunteer. [Cases: Implied
and Constructive Contracts
officiousness (d-fish-dS-n<ls), n. (16c) Interference in the
affairs ofothers without justification under the circum
stances. -officious, adj.
officious testament. See TESTAMENT.
officious will. See officious testament under TESTA
MENT.
officium virile (d-fish-ee-Jm vd-n-Iee). [Latin] Roman
law. A man's office . Certain offices, such as tutor and
curator, could be discharged only by men.
off-label use. Use of prescription medicine or medical
products for conditions and in circumstances not
approved by the Food and Drug Administration.
[Cases: Health C=>3l9.]
off point. (1951) Not discussing the precise issue at hand;
irrelevant. Cf. ON POINT.
off-premises license. See off-sale license under LICENSE
(2).
off-sale license. See LICENSE (2).
offset, n. (18c) Something (such as an amount or claim)
that balances or compensates for something else;
SETOFF.
"Both setoff and recoupment existed at common law, but
their scope has been modified, expanded, and ultimately
merged by subsequent statutory and decisional law. The
final equitable concept of 'offset' recognizes that the
debtor may satisfy a creditor's claim by acquiring a claim
that serves to counterbalance or to compensate for the
creditor's claim .... [Cjourts use the terms 'offset' and
'setoff' interchangeably, often switching between them
from sentence to sentence, supporting the conclusion that
there is no substantive difference between them." 4 Ann
Taylor Schwing, California Affirmative Defenses 2d 44:1,
at 4-5 (1996).
offset, vb. (17c) To balance or calculate against; to com
pensate for <the gains offset the losses>.
offset account. See ACCOUNT.
1196 offshore asset-protection trust
offshore asset-protection trust. See asset-protection
trust (1) under TRUST (3).
offshore trust. Seeforeign-situs trust under TRUST.
offspring. (bef. 12c) Children; issue; progeny.
off-the-board, adj. See OFF-BOARD.
offthe record. 1. (Of a statement, comment, or testi
mony) not recorded as official evidence of a proceed
ing, such as a trial or deposition. 2. (Of a statement)
not intended for quotation or attribution. In either
sense, whenever the phrase appears before the noun
it modifies, it should be hyphenated <off-the-record
comments>. Cf. ON THE RECORD.
off-year election. See ELECTION (3).
OFHEO. abbr. OFFICE OF FEDERAL HOUSING ENTERPRISE
OVERSIGHT.
OFR. abbr. Office of Federal Register. See FEDERAL
REGISTER.
ofrecord. (16c) 1. Recorded in the appropriate records
<counsel of record>. See attorney of record under
ATTORNEY. 2. (Of a court) that has proceedings taken
down stenographically or otherwise documented
<court of record>. See court ofrecord under COURT.
of the essence. (18c) (Of a contractual requirement)
so important that if the requirement is not met, the
promisor will be held to have breached the contract and
a rescission by the promisee will be justified <time is
ofthe essence>. [Cases: Contracts (;::::::211; Vendor and
Purchaser ~~78.]
OG. abbr. OFFICIAL GAZETTE.
OGE. See OFFICE OF GOVERNMENT ETHICS.
OHHLHC. abbr. OFFICE OF HEALTHY HOMES AND LEAD
HAZARD CONTROL.
OlD. abbr. ORIGINAL-ISSUE DISCOUNT.
oil-and-gas lease. See LEASE.
OIPE. abbr. OFFICE OF INITIAL PATENT EXAMINATION.
Oireachtas (air-;3k-th;3s or eer-;3k-t;~s). The Parliament of
the Republic of Ireland.
Old-Age and Survivors' Insurance. (1935) A system of
insurance, subsidized by the federal government, that
provides retirement benefits for persons who reach
retirement age and payments to survivors upon the
death of the insured. This was the original name
for the retirement and death benefits established by
the Social Security Act of 1935. As the scope of these
benefits expanded, the name changed to Old Age, Sur
vivors, and Disability Insurance (OASDI), and then to
Old Age, Survivors, Disability, and Health Insurance
(OASDHI). Today, the system is most often referred to
as Social Security. -Abbr. OAS!. See SOCIAL SECURITY
ACT. [Cases: Social Security and Public Welfare
121-140.3.J
old business. See unfinished business under BUSINESS.
old combination. See COMBINATION.
old-combination rejection. See REJECTION. Old Natura Brevium (n;3-t[y]oor-<l bree-vee-<lm). Hist. A
treatise on the writs in use during the reign ofEdward
III. Abbr. o.N.B. See BREVE.
old-soldier's rule. See EGGSHELL-SKt:LL RULE.
old style. The system of ordering time according to
the Julian method, introduced by Julius Caesar in 46
B.c., by which all years have 365 days except the years
divisible by 4, which have 366 days . This differs from
the modern calendar in that it assumes that there are
exactly 365.25 days in a year. But there are actually
slightly less than 365.25 days in a solar year, so the
old-style calendar adds too many days over time. The
Julian calendar was reformed by Pope Gregory XIII in
1582. -Abbr. o.s. -Also termed Julian calendar. Cf.
NEW STYLE.
Oleron, laws of (oh-l<l-ron or aw-lay-ron). See LAWS OF
OLERON.
oligarchy (ol-<l-gahr-kee), n. (16c) A government in
which a small group ofpersons exercises control; the
persons who constitute such a government. oligar
chic, oligarchical, adj.
oligopolistic price coordination. See CONSCIOUS PAR
ALLELISM.
oligopoly (ol-;}-gop-;}-lee), n. (1895) Control or domi
nation of a market by a few large sellers, creating
high prices and low output similar to those found in
a monopoly. Cf. MONOPOLY. oIigopoIistic, adj.
oligopolist, n.
"One reason for the difficulty in describing and delimit
ing oligopoly power is the large number of variables that
confront any theorist building an oligopoly model. Pure
monopoly is akin to a single player game, such as solitaire,
but the oligopoly model may be more like a multihand
poker game.... Unlike poker, where for any hand one
player will win all of the money bet, the players in an oli
gopolistic market can actually increase the returns that
all of them receive through discipl ined pricing." Lawrence
A, Sullivan & Warren S, Grimes, The Law ofAntitrust: An
Integrated Handbook 38-39 (2000).
oligopsony (ol-d-gop-S<l-nee), n. Control or domination
ofa market by a few large buyers or customers. oli
gopsonistic, adj. -oligopsonist, n.
OLMS. abbr. OFFICE OF LABOR-MANAGEMENT STAN
DARDS.
olograph. 11. See HOLOGRAPH. -olographic, adj.
olographic will. See holographiC will under WIlt.
OMB. abbr. OFFICE OF MANAGEMENT AND BUDGET.
ombudsman (om-b;3dz-m<ln). (1872) 1. An official
appOinted to receive, investigate, and report on private
citizens' complaints about the government. 2. A similar
appointee in a nongovernmental organization (such
as a company or university). -Often shortened to
ombuds.
"An ombudsman serves as an alternative to the adversary
system for resolving disputes, especially between citizens
and government agencies .... An ombudsman is ... (1)
an independent and nonpartisan officer of the legislature
who supervises the administration; (2) one who deals with
specific complaints from the public against administrative
injustice and maladministration; and (3) one who has the
1197 180-day rule
power to investigate, criticize and publicize, but not to
reverse administration action." 4 Am. Jur. 2d Alternative
Dispute Resolution 23 (1995).
omissa et male appretiata (<I-mis-<I et mal-ee <I-pree
shee-ay-t<l). [Law Latin] Hist. -Things omitted and erro
neously valued.
"When an executor confirms and omits in the inventory
part of the defunct's effects, he may have the mistake cor
rected. But if he do not take steps for this purpose, anyone
interested in the succession may apply, either to have the
executor compelled to confirm the omission, or himself to
confirm it. Ordinary executors ad omissa et male appretiata
ought to call the principal executor to their confirmation,
or it will be null; but this rule does not hold in the case
of executors-creditors." William Bell, Bell's Dictionary and
Digest of the Law ofScotland 753 (George Watson ed., 7th
ed. 1890).
omission, n. (I4c) 1. A failure to do something; esp., a
neglect of duty <the complaint alleged that the driver
had committed various negligent acts and omissions>.
2. The act ofleaving something out <the contractor's
omission ofthe sales price rendered the contract void>.
3. The state ofhaving been left out or ofnot having been
done <his omission from the roster caused no harm>.
4. Something that is left out, left undone, or otherwise
neglected <the many omissions from the list were unin
tentional>. -Formerly also termed omittance. -omit,
vb. omissive, omissible, adj.
omittance. Archaic. OMISSION.
omnejus reale (om-nee j;)S ree-ay-Iee). [Law Latin] Hist.
Every reaJ right.
omnequod in seerat (om-nee kwod in see er-at). [Latin]
Hist. All that one had in his power.
omnibus (om-ni-b<ls), adj. (1842) Relating to or dealing
with numerous objects or items at once; including
many things or having various purposes.
omnibus bill. See BILL (3).
omnibus claim. See PATE~IT CI.AIM.
omnibus clause. (1880) 1. A provision in an automobile
insurance policy that extends coverage to all drivers
operating the insured vehicle with the owner's permis
sion. [Cases: Insurance ('':::;::,2663.]
statutory omnibus clause. Insurance. An omnibus
clause provided by statute.
2. RESIDUARY CLAUSE.
omnibus count. See COUNT.
omnibns hearing. See HEARING.
omnibus motion. See MOTION (1).
omni exceptione major (om-nee ek-sep-shee-oh-nee
may-jor). [Law Latin] Scots law. Beyond all exception.
The phrase often referred to witnesses ofsuch excep
tional character that their testimony was above sus
picion.
omnium (om-nee-<lm), n. (I8c) lhe total amount or
value of |
icion.
omnium (om-nee-<lm), n. (I8c) lhe total amount or
value of the items in a combined fund or stock . The
term is used primarily in mercantile law and in Great
Britain. omnium bonorum (om-nee-<lm b;)-nor-;)m). [Latin]
Roman & Scots law. Ofall goods . The phrase appeared
in reference to a conveyance ofor partnership in one's
entire estate.
OMVI. abbr. Operating a motor vehicle while intoxi
cated. See DRIVING UNDER THE INFLUENCE.
OMVUI. abbr. Operating a motor vehicle while under
the influence. See DRIVING UNDER THE INFLUENCE.
on all fours. (Of a law case) squarely on point (with a
precedent) on both facts and Jaw; nearly identical in
all material wavs <our client's case is on all fours with
the Supreme C~urt's most recent opinion>. Cf. WHITE
HORSE CASE.
"The courts, nowadays, are governed largely by precedent,
and this imposes on the advocate the necessity of support
ing his client's cause by concrete authorities cases 'on
all fours' with, or at least analogous to, the case at bar,"
William M. Lile et aI., Brief Making and the Use ofLaw Books
98 (3d ed. 1914).
O.N.B. abbr. OLD NATURA BREVIUM.
onboard bill oflading. See BILL OF LADING.
ONDCP. See OFFICE OF NATIONAL DRUG CONTROL
POLlCY.
on demand. (l7c) When presented or upon request for
payment <this note is payable on demand>. Also
termed on call. See PAYABLE. [Cases: Bills and Notes
C=> 129(3).]
one-action rule. In debtor-creditor law, the princi
ple that when a debt is secured by real property, the
creditor must foreclose on the collateral before pro
ceeding against the debtor's unsecured assets. [Cases:
Mortgages C=>218.4, 337, 411.)
one-book rule. The requirement or practice that only
one version of the Sentencing Guidelines be used to
calculate alJ aspects of a defendant's sentence. [Cases:
Sentencing and Punishment <':=:>653.]
one-court-of-justice doctrine. A principle in some states
holding that there is but a single court in the state and
that this court is composed of several divisions, such as
the supreme court, the courts of appeals, and district
courts, probate courts, and any other legislatively
created courts . Michigan, for example, has embodied
this doctrine in its constitution (art. VI, 1). -Also
termed one court ofjustice. [Cases: Courts C=>1.]
one-day, one-trial method. (1976) A system of sum
moning and using jurors whereby a person answers
a jury summons and participates in the venire for one
day only, unless the person is actually empaneled for
a trial, in which event the juror's service lasts for the
entire length of the trial. This system, which is used
in several states, reduces the average term of service
and expands the number of individual jurors called.
[Cases: Jury <.>=>76.]
one-half plus one. See HALF PLUS ONE.
ISO-day rnle. Criminal procedure. 1. A rule that, in some
jurisdictions, allows a person charged with a felony to
be released on personal recognizance ifthe person has
1198 one-month liquidation
been in jail for 180 days without being brought to trial,
and if the delay has not resulted from the defendant's
own actions. [Cases: Bail <8=>40.] 2. A rule requiring all
pending charges against a prison inmate to be brought
to trial in 180 days or to be dismissed with prejudice.
[Cases: Criminal Law <8=>577.5.]
one-month liqUidation. See LIQUIDATION.
one-party consent rule. The principle that one party to a
telephone or other conversation may secretly record the
conversation . This principle applies in most but not
all states. [Cases: Telecommunications (,~1440.]
one-person, one-vote rule. (1965) Constitutional law.
The principle that the Equal Protection Clause requires
legislative voting districts to have about the same pop
ulation. Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362
(1964). Also termed one-man, one-vote rule. See
APPORTIONMENT. [Cases: Constitutional Law
3656.]
onerando pro rata portione. See DE ONERANDO PRO RATA
PORTIONE.
onerare (on-;)-rair-ee), vb. [Latin] Hist. To burden or
load.
onera realia (on-;)r-~ ree-ay-Iee-~). [Law Latin] Scots law.
Real burdens.
"Onera realia ... are burdens or encumbrances affecting
land, and exigible from it. They are distinguished from
personal burdens, which only affect and are exigible from
the person upon whom they lie. A single example may illus
trate the nature of both. It is a common enough practice,
when lands are sold, for the seller not to insist on payment
of the full price at the time of the sale. but to allow a part of
the price to remain on the lands as a burden. Ifthe balance
so left be declared ... to be a real lien ... it is a burden
for which the lands may be attached and sold, into whose
possession soever they may come. But if the burden of
payment of the remainder of the price be laid upon the
purchaser alone. and not upon the lands, then the burden
is personal, and a subsequent purchaser from him incurs
no liability therefor. the lands not being affected. John
Trayner, Trayner's Latin Maxims 423 (4th ed. 1894).
onerari non (on-~-rair-I non). [Law Latin] Hist. Ought
not to be charged. _ In pleading, these words were
used by a defendant to begin a plea in a debt action.
Cf. ACTIO NON.
oneratio (on-;)-ray-shee-oh). [Law Latin] Hist. A cargo
or lading.
oneris ferendi (on-a-ris fa-ren-dl). [Latin] Roman law. Of
bearing a weight or burden. See servitus oneris ferendi
under SERVITUS; JUS ONERIS FERENDI; PARIES ONERI
FERENDa, UTI NUNC EST, ITA SIT.
onerous (oh-n;)r-as or on-<lr-<l8), adj. (l4c) 1. Exces
sively burdensome or troublesome; causing hardship
<onerous discovery requests>. 2. Having or involving
obligations that outweigh the advantages <onerous
property>. 3. Civil law. Done or given in return for
something of equivalent value; supported by consid
eration <an onerous contract>. Cf. GRATUITOUS (1).
onerousness, n. onerous ;;;ause. Civil law. An advantage obtained in
exchange for a contractual obligation. See. La. Civ.
Code arts. 1909, 1967.
onerous contract. See CONTRACT.
onerous deed. See DEED.
onerous donation. See DONATION.
onerous gift. See GIFT.
onerous title. See TITLE (2).
onerous trust. See TRUST.
one-satisfa;;;tion rule. (1965) The principle that a plain
tiffis only entitled to only one recovery for a particular
harm, and that the plaintiff must elect a Single remedy if
the jury has awarded more than one. _ This rule is, for
example, one ofthe foundations ofa defendant's right
to have a jury verdict reduced by the amount of any
settlements the plaintiff has received from other entities
for the same injury. Also termed single-recovery rule.
[Cases: Damages <8=> 15.]
one-subject rule. The principle that a statute should
embrace only one topic. which should be stated in its
title. [Cases: Statutes <8=> 107.]
one-time charge. See special charge under CHARGE.
one-way ratchet theory. See RATCHET THEORY.
one-year rule. Patents. Ihe statutory reqUirement that
a patent application must be filed within one year after
any publication, public use, sale, or offer for sale ofthe
invention. Ifan inventor waits longer than a year,
the patent is blocked by this "statutory bar." 35 USCA
102(b). [Cases: Patents <8=>80.]
ongoing earnings. See operating earnings under
EARNINGS.
online scrip. See Internet scrip under SCRIP.
onomastic (on-a-mas-tik), adj. (16c) 1. Of or relating
to names or nomenclature. 2. (Of a signature on an
instrument) in a handwriting different from that ofthe
body ofthe document; esp., designating an autograph
signature alone, as distinguished from the main text
in a different hand or in typewriting. Cf. HOLOGRAPH;
SYMBOLIC. onomastks (for sense 1), n.
on or about. (l7c) Approximately; at or around the time
specified. -This language is used in pleading to prevent
a variance between the pleading and the proof, usu.
when there is any uncertainty about the exact date ofa
pivotal event. When used in nonpleading contexts, the
phrase is mere jargon.
on pain of. (14c) Or else suffer punishment for non
compliance . This phrase usu. follows a command or
condition <ordered to cease operations on pain of a
$2,000 fine>.
on point. (1927) Discussing the precise issue now at hand;
apposite <this opinion is not 011 point as authority in
our case>. Also termed in point. Cf. OFF POINT.
on-premises license. See on-sale license under LICENSE
(2).
on-sale bar. Patents. A statutory bar prohibiting patent
eligibility if an invention was sold or offered for sale
more than one year before the patent application is
filed. 35 USCA 102(b). [Cases: Patents G=76.]
on-sale license. See LICENSE (2).
onset date. The beginning of a period of disability for
purposes ofdisability payments by the Social Security
Administration. [Cases: Social Security and Public
Welfare <;='140.25.]
on the brief. (Of a lawyer) having participated in prepar
ing a given brief. -The names of all the lawyers on the
brief are typically listed on the front cover.
on the floor. Parliamentary law. 1. (Of a motion) under
consideration; PENDING (2) <the motion is on the floor>.
2. (Of a member) physically present at a meeting and
attending to its deliberations <the senator is on the
floor>.
on the merits. (18c) (Of a judgment) delivered after the
court has heard and evaluated the evidence and the
parties' substantive arguments. [Cases: Judgment
217,563(2),649.]
on the pleadings. (lSc) (Of a judgment) rendered for
reasons that are apparent from the faces of the com
plaint and answer, without hearing or evaluating the
evidence or the substantive arguments. See SUMMARY
JUDGMENT.
on the record. 1. (Of a statement, comment, or testimony)
recorded as official evidence of a proceeding, such as a
trial or deposition. 2. (Of a statement) intended for quo
tation or attribution. -In either sense, whenever the
phrase appears before the noun it modifies, it should
be hyphenated <an on-the-record statement>. Cf. OFF
THE RECORD.
onus (oh-nas). (l7c) 1. A burden; a load. 2. A disagreeable
responsibility; an obligation. 3. ONUS PROBANDI.
onus probandi (oh-n~s pra-ban-dr). [Latin] (ISc) BURDEN
OF PROOF. Often shortened to onus.
OOH-DNR. abbr. See out-of-hospital do-not-resuscitate
order under DO-NOT-RESUSCITATE ORDER.
op. abbr. (often cap.) 1. OPINION (1). 2. Opinions.
OPD. abbr. OFFICE OF POLlCY DEVELOPMENT.
OPEC (oh-pek). abbr. Organization of Petroleum
Exporting Countries.
ope et consilio (oh-pee et k~n-sil-ee-oh). [Latin] Civil law.
By aid and counsel. _ The term is usu. applied to acces
sories to crimes. It is analogous to the common-law
concept of aiding and abetting. Abbr. D.C. -Some
times shortened to ope consilio. Cf. ART AND PART.
ope exceptionis (oh-pee ek-sep-shee-oh-nis). [Latin "by
force of exception"] Hist. In a civil case, a plea asserting
a peremptory exception that a document on which the
action is based is void.
open, adj. (bef. 12c) 1. Manifest; apparent; notorious. 2.
Visible; exposed to public view; not clandestine. 3.1\ot
closed, settled, fixed, or terminated. open account. See ACCOUNT.
open adoptiou. See ADOPTION.
open and notorious. (16c) 1. NOTORIOUS (2). 2. (Of
adultery) known and recognized by the public and
flouting the accepted standards ofmorality in the com
munity. [Cases: Adultery Divorce (;=026.]
open and notorious adultery. See ADULTERY.
open aud notorious cohabitation. See notorious cohabi
tation under COHABITATION.
open and notorious possession. See notorious possession
under POSSESSION.
open bid. See BID (2).
open brief. See BRIEF.
open check. See CHECK.
open closed shop. See SHOP.
opeu court. ( |
brief. See BRIEF.
open check. See CHECK.
open closed shop. See SHOP.
opeu court. (l5c) 1. A court that is in session, presided
over by a judge, attended by the parties and their attor
neys, and engaged in judicial business. -Open court
usu. refers to a proceeding in which formal entries are
made on the record. The term is distinguished from
. a court that is hearing evidence in camera or from a
! judge that is exercising merely magisterial powers. 2.
A court session that the public is free to attend . Most
state constitutions have open-court provisions guaran
teeing the public's right to attend trials. [Cases: Con
stitutional LawG=231O-2325; Criminal LawG=635;
Federal Civil Procedure G-~1951; Trial G=20.]
open credit. See revolving credit under CREDIT (4).
open diplomacy. See DIPLOMACY.
i
' open-door law. See SUNSHINE LAW.
i open-end, adj. (1931) I. Allowing for future changes
or additions <open-end credit plan>. 2. Continually
issuing or redeeming shares on demand at the current
net asset value <open-end investment company>. Also termed open-ended.
open-end credit plan. See CREDIT PLAN.
opeu-ended claim. See PATENT CLAIM.
open-end fund. See MUTUAL FUND.
open-end mortgage. See MORTGAGE.
open-end mortgage bond. See BOND (3).
open entry. See ENTRY (1).
open-fields doctrine. (1963) Criminal procedure. The
rule permitting a warrantless search ofthe area outside
a property owner's curtilage. -Unless there is some
other legal basis for the search, it must exclude the
home and any adjoining land (such as a yard) that is
within an enclosure or otherwise protected from public
scrutiny. Also termed open-field doctrine; open-fields
rule. Cf. PLAIN-VIEW DOCTRINE. [Cases: Controlled
Substances (;::;> 134; Searches and Seizures
open forum. 1. GOOD OF THE ORDER. 2. PUBLIC FORUM.
open guaranty. See continuing guaranty under
GUARANTY.
1200 opening a judgment
opening a judgment. A court's grant of a motion for a
rehearing on the merits but keeping the court's decision
in effect. [Cases: Judgment~336.]
opening bidding. See OPENING THE BIDDING.
opening brief. See BRIEF.
opening brief on the merits. See opening briefunder
BRIEF.
opening statement. (l848) At the outset of a trial, an
advocate's statement giving the fact-finder a preview
of the case and of the evidence to be presented.
Although the opening statement is not supposed to be
argumentative, lawyers purposefully or not often
include some form of argument. The term is thus some
times referred to as opening argument. [Cases: Criminal
Law ~2067; Federal Civil Procedure ~1971; Trial
(::::::>lO9.]
opening the bidding. In a sheriff's sale of real property,
the unethical practice of setting aside the concluded
sale to accept a better post-sale offer. -Also termed
opening bidding. [Cases: Execution ~247.]
open letter ofcredit. See LETTER OF CREDIT.
open lewdness. See LEWDNESS.
open listing. See LISTING (1).
open market. See MARKET.
open-meeting law. See SUNSHINE LAW.
open memorandum. See MEMORANDUM.
open microphone. See GOOD OF THE ORDER.
open mortgage clause. See MORTGAGE CLAUSE.
open nominations. Parliamentary law. To begin
taking nominations from the floor upon passage ofa
motion.
open order. See ORDER (8).
open-perils policy. See INSURANCE POLICY.
open policy. See unvalued policy under INSURANCE
POLICY.
open possession. See notorious possession under pos-
SESSION.
open price. See PRICE.
open-public-records act. See OPEN-RECORDS ACT.
open-records act. A statute providing for public access
to view and copy government records maintained by
public agencies. -Also termed open-public-records
act.
open seas. See high seas under SEA.
open season. (1846) A specific time of year when it is
legal to hunt or catch game or fish. [Cases: Fish
Game
open session. See SESSION (1).
open shop. See SHOP.
open-shop-dosed-shop operation. See DOUBLE
BREASTED OPERATION. open source, adj. (1998) Of or related to software that
includes human-readable source code and can be freely
revised. .
open-source license. See LICENSE.
open-source software. (1998) Software that is usu. not
sold for profit. includes both human-readable source
code and machine-readable object code, and allows
users to freely copy, modify, or distribute the software.
Even though open-source software is made widely
available for free. it may be protected by federal trade
mark law. See Planetary Motion Inc. v. Techplosion Inc .
261 F.3d 1188 (11th Cir. 2001).
open space. (17c) Undeveloped (or mostly undeveloped)
urban or suburban land that is set aside and perma
nently restricted to agricultural, recreational, or con
servational uses. The land may be publicly or privately
owned. Access may be restricted or unrestricted. Open
spaces are not necessarily in a natural state: the term
includes land used for public parks, gardens, farms,
and pastures. But it does not include structures such as
parking lots, swimming pools, or tennis courts. [Cases:
Environmental Law ~43,44.]
open town. Int'llaw. An undefended city in a combat
zone that is laid open to the grasp of the attacking
forces.
open union. See UNION.
open verdict. See VERDICT.
operability. Patents. The ability ofan invention to work
as described. _ A patent examiner may challenge the
operability of an invention and require some proof,
such as a demonstration of a working model. [Cases:
Patents
operating agreement. Oil &-gas. A contract among
owners of the working interest in a prodUcing oil or
gas well setting forth the parties' agreements about
drilling, development, operations, and accounting.
[Cases: Mines and Minerals ~109.]
operating a motor vehicle under the influence. See
DRIVING UNDER THE INFLlJENCE.
operating a motor vehicle while intoxicated. See
DRIVING UNDER THE INFLUENCE.
operating-cost ratio. The ratio between the net sales of
a business and its operating costs.
operating earnings. See EARNINGS.
operating expense. See EXPENSE.
operating income. See ordinary income (1) under
INCOME.
operating interest. See WORKI::-.1G INTEREST.
operating lease. See LEASE.
operating profit. See PROFIT (1).
operating under the influence. See DRIVING UNDER THE
INFLUENCE.
operating while intoxicated. See DRIVING UNDER THE
INFLUENCE.
1201
operational, adj. (1922) 1. Engaged in operation; able to
function. 2. MinisteriaL
operation oflaw. (17c) The means by which a right or a
liability is created for a party regardless ofthe party's
actual intent <because the court didn't rule on the
motion for rehearing within 30 days, it was overruled
by operation oflaw>.
operations clause. Oil & gas. A provision in an oil-and
gas lease specifying that the lease will not expire as long
as oil-and-gas development continues on the leased
property. See CONTINUOUS-OPERATIONS CLAUSE; WELL- i
COMPLETION CLAUSE. [Cases; Mines and Minerals .
78.1(9).]
operative, adj. (1Sc) 1. Being in or having force or effect;
esp., designating the part of a legal instrument that
gives effect to the transaction involved <the operative
proVision of the contract>. 2. Having principal rele
vance; essential to the meaning of the whole <may is
the operative word of the statute>.
operative clause. See CLAUSE.
operative construction. 1. The interpretation ofa writing
or agreement, esp. a contract, statute, or regulation, that
is being relied on by the parties, a court, or an admin
istrative agency. [Cases; Administrative Law and Pro
cedure G=>412; Contracts C~:>170; Statutes (;:=> 219.]
2. Patents. A working embodiment of an invention,
usu. used to conceptualize the invention and how it
will work rather than to create a working modeL 3. The
doctrine that the interpretation of a statute or regula
tion made by an administrative agency charged with
enforcing it is entitled to judicial deference unless it is
arbitrary and capricious. [Cases; Administrative Law
and Procedure G=>413; Statutes C='219.]
operative fact. See FACT.
operative performance bond. See PERFORMANCE
BOND.
operative trust. See active trust under TRUST.
operative words. In a transactional document, the words
that actually effect the transaction.
operis novi nuntiatio. See NOVI OPERIS NUNTIATIO.
OPIC. abbr. OVERSEAS PRIVATE INVESTMENT CORPO
RATION.
opinio juris sive necessitatis (a-pin-ee-oh joor-is SI-vee
nd-ses-i-tay-tis). [Latin "opinion that an act is neces
sary by rule oflaw"] Int'llaw. The principle that for
conduct or a practice to become a rule of customary
international law, it must be shown that nations believe
that international law (rather than moral obligation)
mandates the conduct or practice. -Also termed
opinio juris.
opinion. (14c) 1. A court's written statement explaining
its decision in a given case, usu. including the statement
of facts, points of law, rationale, and dicta. -Abbr.
op. -Also termed judicial opinion. See DECISION. Cf.
JUDGMENT (1); RULING(l). [Cases: Courts G=> 103.] opinion
adVisory opinion. (1837) 1. A nonbinding statement
by a court ofits interpretation ofthe law on a matter
submitted for that purpose. Federal courts are
constitutionally prohibited from issuing advisory
opinions by the case-or-controversy requirement,
but other courts, such as the International Court of
Justice, render them routinely. See CASE-DR-CONTRO
VERSY REQUlREMENT. [Cases: Constitutional LawG=>
2600-2609.] 2. A written statement, issued only by an
administrator ofan employee benefit plan, that inter
prets ERISA and applies it to a specific factual situa
tion. Only the parties named in the request for the
opinion can rely on it, and its reliability depends on
the accuracy and completeness ofall material facts.
concurring opinion. See CONCURRENCE (3).
depublished opinion. An intermediate appellate court's
opinion that has been struck from the official reports,
esp. by the highest court. [Cases: Courts 107.]
dissenting opinion. (1817) An opinion by one or more
judges who disagree with the decision reached by
the majority. -Often shortened to dissent. Also
termed minority opinion.
extrajudicial opinion. 1. An opinion that is beyond the
court's authority to render. Such opinions are void.
2. A judge's personal or scholarly opinion expressed
in a medium other than a judicial opinion.
majority opinion. (1882) An opinion joined in by more
than halfthe judges considering a given case. Also
termed main opinion.
memorandum opinion. (1912) A unanimous appel
late opinion that succinctly states the decision ofthe
court; an opinion that briefly reports the court's con
clusion, usu. without elaboration because the decision
follows a well-established legal principle or does not
relate to any point of law. Also termed memo
randum decision; memorandum disposition; (slang)
memdispo. [Cases; Courts G=>103, 107.]
minority opinion. See dissenting opinion.
per curiam opinion (pdr kyoor-ee-dm). (1860) An
opinion handed down by an appellate court without
identifying the individual judge who wrote the
opinion. -Sometimes shortened to per curiam.
[Cases; Courts 103,107.]
''The most controversial form of summary disposition is a
per curiam opinion that simultaneously grants certiorari
and disposes of the merits at some length, discussing both
the facts and the issues involved. The result is usually a
reversal of the Judgment below .... The parties are given
no opportunity to file briefs on the merits or to argue
orally before the Court. Indeed, they are given no forma!
notice whatever of the Court's intention to dispose of the
certiorari papers in this manner ...." Robert L. Stern et aI.,
Supreme Court Practice 320 (8th ed. 2002).
plurality opinion. (1908) An opinion lacking enough
judges' votes to constitute a majority, but receiving
more votes than any other opinion. [Cases; Courts
(::::>90(2), 102.]
qualified opinion. See QUALIFIED OPINION.
opinion evidence 1202
seriatim opinions (seer-ee-ay-tim). (1832) A series of
opinions written individually by each judge on the
bench, as opposed to a single opinion speaking for
the court as a whole.
slip opinion. 1. A court opinion that is published indi
vidually after being rendered and then collectively
in advance sheets before being released for publica
tion in a reporter . Unlike an unpublished opinion,
a slip opinion can usu. be cited as authority. - |
tion in a reporter . Unlike an unpublished opinion,
a slip opinion can usu. be cited as authority. -Also
termed slipsheet. Cf. ADVANCE SHEETS. [Cases: Courts
107.] 2. Archaic. A preliminary draft of a court
opinion not yet ready for publication. -Also termed
slip decision. Cf. unpublished opinion.
unpublislted opinion. (1849) An opinion that the court
has specifically designated as not for publication .
Court rules usu. prohibit citing an unpublished
opinion as authority. Such an opinion is considered
binding only on the parties to the particular case in
which it is issued. Cf. slip opinion. [Cases: Courts (;::::)
107.]
2. A formal expression of judgment or advice based on
an expert's special knowledge; esp., a document, usu.
prepared at a client's request, containing a lawyer's
understanding of the law that applies to a particular
case. Also termed opinion letter.
'The essence of a lawyer's job is to obtain the facts and
the law with due diligence and then to give advice. But,
strangely, no controlling definition has evolved for what is
an 'opinion.' The lack of a definition is not crucial for some
purposes. On the other hand, a definition is vital in other
areas; for example, to determine within a law firm when
peer review is necessary ...." 8 Arnold S. Jacobs, Opinion
Letters in Securities Matters 3, at Intro-12 (1998).
adverse opinion. An outside auditor's opinion that a
company's financial statements do not conform with
generally accepted accounting principles or do not
accurately reflect the company's financial position.
audit opinion. A certified public accountant's opinion
regarding the audited financial statements of an
entity.
comfort opinion. Securities. An attorney's written
opinion that there is no reason to believe that the
registration statement contains any material misrep
resentations or omissions that would violate section
11 of the Securities Act of 1933. lhe attorney usu.
participates in the registration statement's prepara
tion and confers with the securities issuer's represen
tatives, underwriters, and public accountants before
writing the opinion. The comfort opinion's purpose
is to reassure the parties that the registration state
ment complies with securities laws; it is not part of
the statement and is usn. not included.
coverage opinion. A lawyer's opinion on whether a par
ticular event is covered by a given insurance policy.
infringement opinion. Patents. A patent attorney's
opinion about the probable outcome of an infringe
ment hearing or trial on whether a particular product
or process infringes one or more claims of another's
patent. [Cases: Patents (;:::::>227.] legal opinion. (18c) A written document in which an
attorney proVides his or her understanding ofthe law
as applied to assumed facts . The attorney may be
a private attorney or attorney representing the state
or other governmental entity. Private attorneys fre
quently render legal opinions on the ownership ofreal
estate or minerals, insurance coverage, and corporate
transactions. A party may be entitled to rely on a legal
opinion, depending on factors such as the identity
of the parties to whom the opinion was addressed,
the nature of the opinion, and the law governing the
opinion. See coverage opinion.
patentability opinion. Patents. A patent attorney's or
patent agent's opinion on the patent office's probable
holding about the allowability of a patent application's
claims. The opinion is almost a mini-examination
report because it is based on consideration of the
invention's subject matter, prior art, etc.
title opinion. (1927) A lawyer's or title company's
opinion on the state of title for a given piece of real
property, usu. describing whether the title is clear and
marketable or whether it is encumbered. See TITLE
SEARCH.
unqualified opinion. An audit opinion given by an
accountant who is satisfied that the financial state
ments reviewed were fairly presented and consis
tent with the previous year, and that the audit was
performed in accordance with generally accepted
auditing standards.
validity opinion. Patents. A patent attorney's opinion
about the likelihood that a patent or patent claim will
be invalidated in light of evidence suggesting obvi
ousness, lack ofinvention, unenforceability, etc.
3. A person's thought, belief, or inference, esp. a wit
ness's view about a facts in dispute, as opposed to
personal knowledge of the facts themselves. Also
termed (in sense 3) conclusion. See opinion evidence
under EVIDENCE.
expert opinion. An opinion offered by a witness whose
knowledge, skill, experience, training, and education
qualify the witness to help a fact-finder understand
the evidence or decide a factual dispute. See expert
witness under WITNESS.
fixed opinion. (1807) A bias or prejudice that disquali
fies a potential juror. [Cases: Jury
opinion evidence. See EVIDENCE.
opinion letter. See OPINION (2).
opinion rule. (1896) Evidence. The principle that a
witness should testify to facts, not opinions, and
that a nonexpert witness's opinions are often exclud
able from evidence . Traditionally, this principle is
regarded as one of the important exclusionary rules
in evidence law. It is based on the idea that a witness
who has observed data should provide the most tactual
evidence possible, leaVing the jury to draw inferences
and conclusions from the evidence. Under this system,
the witness's opinion is unnecessary. Today, opinions
1203
are admissible ifrationally based on a witness's percep
tions and helpful to the fact-finder. [Cases: Criminal
Law C::=>448; Evidence e:-~)471, 505.]
"This rule [the opinion rule} is an historical blunder, for the
early cases excluding 'opinion' meant a belief by a person
who had personally seen and known nothing, and was
therefore not qualified to speak; whereas the modern rule
applies it to witnesses who have had personal observation
as a basis for their inference. Moreover, it is a senseless
rule, for not once in a thousand times can the observed
data be exactly and fully reproduced in words. Still further,
no harm could be done by letting the witness offer his
inference, except perhaps the waste of a moment's time,
whereas the application of the rule wastes vastly more
time. And finally the rule is so pedantically applied by
most courts that it excludes the most valuable testimony,
such as would be used in all affairs of life outside a court
room." John H. Wigmore, A Students' Textbook of the Law
of Evidence 1 56 (1935).
"The [opinion] rule in its stark simplicity might be inter
preted as excluding all value judgments, that is to say all
statements not being factual propositions susceptible
of some sort of empirical proof or disproof. The rule, if
it is to be given any purely logical meaning at all, must
be interpreted as excluding at least all inferences drawn
from perceived data. Even if value judgments are saved by
construing the rule as having application only to factual
propositions, the rule would seem to purport to exclude all
such propositions in the formulation of which inference by
the witness has played some part." Zelman Cowen, Essays
on the Law of Evidence 162 (1956).
opinion testimony. See TESTIMONY.
opinion work product. See WORK PRODUCT.
OPM. abbr. OFFICE OF PERSONNEL MANAGEMENT.
oppignorate (<l-pig-na-rayt), vb. Archaic. To pawn or
pledge. -Also spelled oppignerate. Cf. PIGNORATE.
opponent. (l6c) 1. An adverse party in a contested
matter. 2. A party that is challenging the admiSSibility
ofevidence. _ In this sense, the word is an antonym of
proponent. 3, Parliamentary law. A member who speaks
against a pending motion. Cf. PROPONENT (3).
opportunity. The fact that the alleged doer ofan act was
present at the time and place ofthe act.
opportunity cost. See COST (1).
opportunity to be heard. (l7c) The chance to appear
in a court or other tribunal and present evidence and
argument before being deprived of a right by govern
mental authority. _ The opportunity to be heard is a
fundamental requirement ofprocedural due process.
It ordinarily includes the right to receive fair notice of
the hearing, to secure the assistance ofcounsel, and to
cross examine adverse witnesses. See procedural due
process under DUE PROCESS. [Cases: Constitutional Law
C::=> 3879.]
opposer. 1. Intellectual property. One who formally seeks
to prevent the grant of a patent or the registration ofa
trademark. [Cases: Patents 104; Trademarks C::=>
1294.] 2. Hist. APPOSER.
opposition. 1. Patents. An action or procedure by which
a third party can request a patent application's refusal
or an issued patent's annulment. _ Most countries allow
opposition in some form. [Cases: Patents C::=> 104.] 2. option
Trademarks. A procedure by which a third party can
contest a trademark after it has been approved but
before it has been placed on the Principal Register. Cf.
CANCELLATION. [Cases: Trademarks C::=> 1290.]
oppression. (14c) 1. The act or an instance of unjustly
exerciSing authority or power. 2. An offense con
sisting in the abuse of discretionary authority by a
public officer who has an improper motive, as a result
of which a person is injured. -This offense does not
include extortion, which is typically a more serious
crime. [Cases: Officers and Public Employees C::=> 12l.]
3. Contracts. Coercion to enter into an illegal contract.
-Oppression is grounds for the recovery of money
paid or property transferred under an illegal contract.
See DURESS; UNCONSCIONABILITY. [Cases: Contracts
C::=> 138(3), 139.] 4. Corporations. Unfair treatment of
minority shareholders (esp. in a close corporation) by
the directors or those in control of the corporation.
Also termed (in sense 4) shareholder oppression. See
FREEZE-OUT. [Cases: Corporations C= 182.3,597.]
oppress, vb. oppressive, adj.
oppressive child labor. See CHILD LABOR.
oppressor. (14c) A public official who unlawfully or
wrongfully exercises power under color of authority
in a way that causes a person harm; one who commits
oppression. [Cases: Officers and Public Employees
12l.]
OPRA. abbr. OPTIONS PRICE REPORTING AUTHORITY.
optima fide (op-ti-m<:1 fI-dee). [Latin] Rist. In the best
faith.
optimal-use value. See VALUE (2).
opt in, vb. (1966) To choose to participate in (something)
<when the choice of settling or not settling came, the
Joneses opted in, hoping to avoid a lengthy trial>.
option, n. (l7c) l. The right or power to choose; some
thing that may be chosen <the lawyer was running out
of options for settlement>. 2. An offer that is included
in a formal or informal contract; esp., a contractual
obligation to keep an offer open for a specified period,
so that the offeror cannot revoke the offer during that
period <the option is valid because it is supported
by consideration>. Also termed option contract;
(redundantly) time option. See irrevocable offer under
OFFER; OPTION AGREEMENT. [Cases: Contracts (;::=>16.5;
Vendor and Purchaser C::=> 18.]3. The right conveyed by
such a contract <Pitts declined to exercise his option
to buy the house>. 4. The right (but not the obligation)
to buy or sell a given quantity of securities, commodi
ties, or other assets at a fixed price within a specified
time <trading stock options is a speculative business>.
Cf. FUTURES CONTRACT. [Cases: Commodity Futures
Trading Regulation C::=> 10; Corporations C::=>116; Secu
rities Regulation C='5.25(3).]
American option. An option that can be exercised on
any day, including its expiration date. Also termed
American-style option. Cf. European option.
1204 option
call option. An option to buy something (esp. securi
ties) at a fixed price even ifthe market rises; the right
to require another to sell. -Often shortened to call.
[Cases: Commodity Futures Trading Regulation
10; Securities Regulation ~5.25(3).]
cash-value option. The right of a life-insurance poli
cyholder to surrender the policy for its cash value at
a specified time or at any time. [Cases: Insurance
1950,2037.J
commodity option. An option to buy or sell a commod
ity. [Cases: Commodity Futures Trading Regulation
~1O.1
European option. An option that can be exercised only
on its expiration date. Also termed European-style
option. Cf. American option.
futures option. An option to buy or sell a futures
contract. [Cases: Commodity Futures Trading Reg
ulation ~1O.]
lease option. In a contract for rental property, a clause
that gives the renter the right to buy the property at a
fixed price, usu. at or after a fixed time. Also termed
lease with an option to purchase. [Cases: Landlord and
Tenant ~92.]
naked option. A call option that grants another the
right to buy stock even though the option-giver does
not own the stock to back up that commitment.
Also termed uncovered option.
nonforfeiture option. A policyholder's option, upon the
lapse ofpremium payments, to continue an insurance
policy for a shorter period than the original term, to
surrender the policy for its cash value, to continue the
policy for a reduced amount, or to take some other
action rather than |
surrender the policy for its cash value, to continue the
policy for a reduced amount, or to take some other
action rather than forfeit the policy. [Cases: Insur
anceC::;:)2037.]
option to purchase real property. A contract by which
an owner ofrealty enters an agreement with another
allowing the latter to buy the property at a specified
price within a specified time, or within a reasonable
time in the future, but without imposing an obliga
tion to purchase upon the person to whom it is given.
[Cases: Vendor and Purchaser c>18.]
put option. An option to sell something (esp. securities)
at a fixed price even if the market declines; the right
to require another to buy. Often shortened to put.
[Cases: Commodity Futures Trading Regulation C-::'
10; Corporations ~116; Securities Regulation ~
5.25(3).] Cf. put bond under BOND (3).
seller's option. A special stock-exchange transaction
that gives the seller the right to deliver the security
within a specified period, usu. 5 to 60 days.
settlement option. Insurance. A life-insurance-policy
clause providing choices in the method of paying
benefits to a beneficiary, as by lump-sum payment or
periodic installments. [Cases: Insurance ~2443,
3402.]
stock option. See STOCK OPTION.
uncovered option. See naked option.
5. Hist. Eccles. law. The requirement that a newly elected
bishop convey to the archbishop the right to fill the next
vacant ecclesiastical benefice in the new bishop's see.
option, vb. (1888) To grant or take an option on (some
thing) <Ward optioned his first screenplay to the studio
for $50,000>.
option agreement. Corporations. A share-transfer
restriction that commits the shareholder to sell, but
not the corporation or other shareholders to buy, the
shareholder's shares at a fixed price when a specified
event occurs. Cf. BUY-SELL AGREEMENT (2); OPTION
(2). [Cases: Corporations ~116.]
optional bond. See BOND (3).
optional completeness, rule of. See RULE OF OPTIONAL
COMPLETENESS.
optional-completeness doctrine. See RULE OF OPTIONAL
COMPLETENESS.
optional writ. See WRIT.
option contract. See OPTION (2).
optionee (op-sh<l-nee). One who receives an option from
another. Also termed option-holder.
optionor (op-sh<l-n<lr or op-sh<l-nor). One who grants
an option to another. Also spelled optioner. Also
termed option-giver.
option premium. See PREMIUM (4).
option spread. Securities. The difference between the
option price and the market price of the underlying
stock when the option is exercised. See SPREAD.
Options Price Reporting Authority. A national market
system plan approved by the SEC for collecting and
disseminating last-sale and quotation information on
options traded on a five-member exchange consisting
of the American Stock Exchange, the Chicago Board
ofOptions Exchange, the New York Stock Exchange,
the Pacific Stock Exchange, and the Philadelphia Stock
Exchange. -Abbr. OPRA.
option tender bond. See put bond under BOND (3).
option to purchase real property. See OPTION.
opt ont, vb. (1922) To choose not to participate in (some
thing) <with so many plaintiffs opting out ofthe class,
the defendant braced itself for multiplicitous lawsuits>.
[Cases: Federal Civil Procedure ~180; Parties
35.51.]
opt-out class. See CLASS (4).
opt-out statute. Bankruptcy. A state law that limits the
exemptions that a debtor who has filed for bankruptcy
can claim to those provided by state and local bank
ruptcy laws, and nonbankruptcy federal law . The
federal bankruptcy code includes an "opt-out" provi
sion that allows states to choose not to adopt the federal
exemptions. 11 U.S.C. 522(b). -Also termed opt-out
legislation. [Cases: Bankruptcy
opus (oh-pas), n. [Latin "work"] (18c) A product ofwork
or labor; esp., an artistic, literary, or musical work or
1205 ordeal
composition. PI. opuses, opera (ah-p",-r", or oh-pa- i or painful physical test, the result being considered a
raj.
opus manufactum (oh-pas man-p-fak-t"m). [Latin]
Civil law. An artifact; an artificial work, as distin
guished from what is natural. PI. opera manufacta.
opus novum (Oh-PdS uoh-vdm). [Latin "new work"] CMl
law. A structure newly built on land. PI. opera nova.
See NOVI OPERIS NUNTIATIO.
O.R. abbr. Own recognizance; on one's own recogni
zance <the prosecutor agreed not to object to releas
ing the suspect O.R.>. See RECOGNIZANCE; RELEASE
ON RECOGNIZANCE. [Cases: Bail
oraculum (a-rak-ya-Iam), n. [Latin "a solemn decla
ration"] Roman law. In the later empire, an order or
decision by the emperor.
oral, adj. (l7c) Spoken or uttered; not expressed in
writing. Cf. PAROL.
oral argument. (1823) An advocate's spoken presenta
tion before a court (esp. an appellate court) supporting
or opposing the legal relief at issue. -Also termed (in
BrE) hearing. [Cases: Appeal and Error (:::::>824; Federal
Courts (:::::>742.]
"[Tjhe oral argument is the one chance for YOII (not for
some chance-assigned mere judge) to answer any ques
tions you can stir any member of the court into being
bothered about and into bothering With, and the one
chance to sew up each such question into a remembered
point in favor.... In any but freak situations, oral argument
is a must." Karl N. Llewellyn, The Common Law Tradition:
Deciding Appeals 240 (1960).
oral confession. See CONFESSION.
oral contract. See parol contract (1) under CONTRACT.
oral deposition. See DEPOSITION.
oral evidence. See testimonial evidence under EVIDENCE.
oral trust. See TRUST.
oral will. See WILL.
Orange Book. Patents. A list of patents on drugs or drug
products for which generic-drug applications may be
submitted to the Food and Drug Administration .
The expiration dates of the patents are also listed. An
applicant may submit a generic-drug application at any
time, but the applicant must either accept deferral of
FDA approval until the patent expires or contest the
validity of the patent. The Orange Book's official title is
Approved Drug Products With Therapeutic EqUivalence
Evaluations. [Cases: Health C::::319.)
oratio consultoria (or-ay-shee-oh kon-sdl-tor-ee-a). See
LIBELLUS CONSULTORIA.
orator (or-a-tdr), 11. (15c) 1. Roman law. (ita!.) An
advocate or pleader. 2. Hist. A plaintiff or petitioner in
an action in chancery.
oratrix (or-d-triks). His!. A female orator.
orbation (or-bay-shan). Hist. Bereavement or deprivation
of one's parents or children.
ordeal. (bef. 12c) Hist. A primitive form oftrial in which
an accused person was subjected to a usu. dangerous divine revelation of the person's guilt or innocence .
The participants believed that God would reveal a
person's culpability by protecting an innocent person
from some or all consequences of the ordeal. The ordeal
was commonly used in Europe until the 13th century,
but only sporadically after 1215, when the Fourth
Lateran Council forbade the clergy from participating
in ordeals. -Also termed trial by ordeal; judiCium Dei
("judgment ofGod"); vulgariS purgatio. Cf. CANFARA.
"Ordeals involved an appeal to God to reveal the truth in
human disputes, and they required priestly participation
to achieve this rapport with the Deity. Several forms of
ordeal were recognised by the early Christian Church, but
in England they usually took the form of fire or water. In
the former, a piece of iron was put into a fire and then in
the party's hand; the hand was bound, and inspected a
few days later: if the burn had festered, God was taken to
have deCided against the party. The ordeal of cold water
required the party to be trussed and lowered into a pond;
if he sank, the water was deemed to have 'received him'
with God's blessing, and so he was quickly fished out. ...
In 1215, the Lateran Council ... took the decisive step
of forbidding clergy to participate any more in ordeals.
This led in England to the introduction of the criminal trial
jury." J.H. Baker, An Introduction to English Legal History
5-6 (3d ed. 1990).
bread-and-cheese ordeal. See ordeal ofthe morsel.
ordeal byfire. An ordeal in which the accused person
was forced to hold a piece of hot metal or to walk
barefoot across a hot surface, the judgment ofguilt or
innocence depending on how qUickly and cleanly the
person's hands or feet healed . Typically the person's
hand was bandaged and, upon the bandage's removal
three days later, was examined for festers (indicating
guilt). Also termed fire ordeal; ordeal by hot iron;
ordeal offire.
"Such evidence as we have seems to show that the ordeal
of hot iron was so arranged as to give the accused a con
siderable chance of escape." 2 Frederick Pollock & Frederic
William Maitland, History Of English Law Before the Time of
Edward 1599 (2d ed. 1899).
ordeal by hot iron. See ordeal byfire.
ordeal by water. 1. An ordeal in which gUilt or inno
cence depended on whether the accused person
floated or sank after being submerged in cold water.
A priest would first consecrate the pool of water,
adjuring it to receive the innocent but reject the
guilty. An accused who sank was declared innocent;
one who floated was adjudged guilty because floating
revealed the water's (and therefore God's) rejection of
the person. This type of ordeal was used esp. in witch
craft trials. Also termed ordeal by cold water; cold
water ordeal; ordeal ofcold water; (in ecclesiastical
law) aquae frigidae judiCium. 2. An ordeal in which
guilt or innocence was determined by how quickly
the accused person's arm healed after being placed
in boiling water. Often the person was forced to
retrieve a stone from the bottom of a pot of boiling
water. The person's hand and arm were then bandaged
and, upon the bandage's removal three days later,
were examined for festers (indicating guilt). -Also
termed (in sense 2) ordeal by hot water; hot-water
1206 ordelf
ordeal; ordeal of hot water; (in both senses) water
ordeal; ordeal ofwater; (in ecclesiastical law) aquae
ferventis judicium; aenum.
"The ordeal of water was a very singular institution. Sinking
was the sign of innocence, floating the sign of guilt. As
anyone would sink unless he understood how to float,
and intentionally did so, it is difficult to see how anyone
could ever be convicted by this means. Is it possible that
this ordeal may have been an honourable form of suicide,
like the Japanese happy despatch? In nearly every case
the accused would sink. This would prove his innocence,
indeed, but there would be no need to take him out. He
would thus die honourably. If by any accident he floated,
he would be put to death disgracefully." 1 James Fitz
james Stephen, A History of the Criminal Law of England
73 (1883).
ordeal ofthe morsel. An ordeal in which the person
who was to make the proof was given a one-ounce
piece of bread or cheese that a priest had solemnly
charged to stick in the throat ofthe guilty . A person
who choked was declared guilty; a person who did
not was declared innocent. -Also termed corsnaed;
corsned; trial by corsnaed;judicial morsel; morsel of
execration.
single ordeal. An ordeal prescribed for someone
accused of a less serious crime and involving less
risk or torture than a triple ordeal. For example, a
Single ordeal by fire required the accused to pick up
a red-hot piece of iron weighing one pound, while a
triple ordeal involved a piece ofiron weighing three
pounds.
triple ordeal. An ordeal prescribed for someone accused
of a more serious crime and involving more risk or
torture than a single ordeal. For example, a triple
ordeal by water required the accused to submerge an
arm into boiling water up to the elbow, while a single
ordeal required the arm to be submerged only to the
wrist. Also termed threefold ordeal.
ordelf (or-delf). See OREDELF.
ordels (or-deelz). Hist. English law. The right to conduct
trials by ordeal within a given jurisdiction.
order, n. (l6c) 1. A command, direction, or instruction.
See MA::-;DATE (1). 2. A written direction or command
delivered by a court or judge. The word generally
embraces final decrees as well as interlocutory direc
tions or commands. -Also termed court order:]udicial
order. See MANDAMUS. [Cases: Federal Civil Procedure
Motions C::>46.J
"An order is the mandate or determination of the court
upon some subsidiary or collateral matter arising in an
action, not disposing of the merits, but adjudicating a pre
liminary |
ary or collateral matter arising in an
action, not disposing of the merits, but adjudicating a pre
liminary point or directing some step in the proceedings." 1
Henry Campbell Black, A Treatise on the Law ofJudgments
1, at 5 (2d ed. 1902).
"While an order may under some circumstances amount
to ajudgment, they must be distinguished, owing to the
different consequences flowing from them, not only in the
matter of enforcement and appeal but in other respects, as,
for instance, the time within which proceedings to annul
them must be taken. Rulings on motions are ordinarily
orders rather than judgments. The class ofjudgments and
of decrees formerly called interlocutory is included in the
definition given in [modern codes] of the word 'order.''' 1 A.C. Freeman, A Treatise of the Law ofJudgments 19, at
28 (Edward W. Tuttle ed., 5th ed. 1925).
administrative order. 1. An order issued by a govern
ment agency after an adjudicatory hearing. [Cases:
Administrative Law and Procedure ~489.] 2. An
agency regulation that interprets or applies a statu
tory provision. Administrative Law and Pro
cedure
affiliation order. See filiation order.
alternative order. An order commanding the person
to whom it is directed either to do a specific thing
or to show cause why the court should not order it
to be done.
antiharassment order. A type of restraining order
available to victims ofharassment or stalking, usu.
forbidding a person to contact, surveil, or approach
the victim.
blanket order. See BLANKET ORDER (1).
common order. See conditional judgment under
JUDGMENT.
decretal order (di-kree-tal). A court of chancery's inter
locutory order that is issued on motion ofa party and
has the effect ofa final decree. See decree nisi under
DECREE. Equity
dismissal order. A court order ending a lawsuit without
a decision on the merits. Also termed order ofdis
missal.
docket order. A court order memorialized only as an
entry on the docket sheet.
ex parte order (eks pahr-tee). (18c) An order made
by the court upon the application ofone party to an
action without notice to the other.
filiation order. Family law. A court's determination
of paternity, usu. including a direction to pay child
support. Governments usu. seek filiation orders
so that some or all of the public funds spent on the
child's welfare can be recovered from a nonmarital
child's father. Until the early 20th century, munici
palities, not the state, had the legal duty to support the
poor, including unwed mothers and their children.
In some states, two judges had to determine who an
unacknowledged child's father was before the munici
pality could recover its expenditures. Also termed
affiliation order; order offiliation. [Cases: Children
Out-of-Wedlock C::>63.]
final order. (16c) An order that is dispositive of the
entire case. See final judgment under JVDGMENT.
[Cases: Federal Civil Procedure Motions
C='Sl.]
foreign support order. See SUPPORT ORDER.
health-insurance order. See HEALTH-INSURANCE
ORDER.
income-withholding order. See INCOME-WITHHOLDING
ORDER.
interim order. 1. A temporary court decree that remains
in effect for a specified time or until a specified event
1207
occurs. [Cases: Federal Civil Procedure Cr'-::::>928; !
Motions (;::::>51.] 2. See interlocutory order.
interlocutory order (in-tJr-lok-y;:Hor-ee). (l7c) An
order that relates to some intermediate matter in the
case; anv order other than a final order. Most inter
locutory orders are not appealable until the case is
fully resolved. But by rule or statute, most jurisdic
tions allow some types of interlocutory orders (such
as preliminary injunctions and class-certification
orders) to be immediately appealed. -Also termed
interlocutory decision; interim order; intermedi
ate order. See appealable decision under DECISION; i
COLLATERAL-ORDER DOCTRINE. [Cases: Appeal and
Error (;::J67; Federal Civil Procedure C--:::>928; Federal
Courts 576; Motions (;::::>51.J
minute order. 1. An order recorded in the minutes
of the court rather than directly on a case docket .
Although practice varies, traditionally when a trial
judge is sitting officially, with or without a court
reporter, a clerk or deputy clerk keeps minutes. When
the judge makes an oral order, the only record of that
order may be in the minutes. It is therefore referred
to as a minute order. -Also termed minute entry.
[Cases: Appeal and Error 123; Courts (;::::> 107.J
2. A court order not directly relating to a case, such
as an order adopting a local rule of court. -In this
sense, the court is not a Single judge acting in an adju- .
dicatorycapacity, but a chief judge, or a group oftwo !
or more judges, acting for a court in an administra
tive or some other nonadjudicatory capacity. [Cases:
Motions (;::::>56(1).J
modification order. See MODIFICATION ORDER.
order ofdismissal. See dismissal order.
order to pay. 1. Commercial law. A written order to a
person to deliver money, usu. out of funds on deposit
with that person, to a third party on demand. 2. A
court order directing a person to deliver money that
the person owes or for which the person is respon
sible.
preclusion order. (1921) An order barring a litigant
from presenting or opposing certain claims or
defenses for failing to comply with a discovery order.
[Cases: Federal Civil Procedure Cr~'1278; Pretrial
Procedure (;::::>44.1.]
pretrial order. See PRETRIAL ORDER.
protective order. See PROTECTIVE ORDER.
qualified domestic-relations order. See QUALIFIED
DOMESTIC-RELATIONS ORDER.
receiving order. A court's direction to a bankruptcy
receiver to take some action.
restraining order. See RESTRAINING ORDER.
separation order. A court order granting a married
person's request for a legal separation. See SEPARA
TION AGREEMENT (1). [Cases: Divorce 155.J
show-cause order. (1925) An order directing a party to
appear in court and explain why the party took (or
failed to take) some action or why the court should order
or should not grant some relief. -Also termed order
to show cause; rule to show cause; show-cause rule.
[Cases: Motions
standing order. A forward-looking order that applies
to all cases pending before a court. Some individual
judges issue a standing order on a subject when there
is no local rule bearing on it, often because a rule
would not be acceptable to other judges on the court.
Standing orders are frequently criticized because they
undermine uniformity of procedural rules, esp. at the
local leveL Cf. standing rule under RULE (3).
supervision order. Family law. A court's order placing
a child or young person under the supervision of a
child-welfare agency or a probation officer in a case
of neglect, abuse, or delinquency. [Cases: Infants
225,226.]
support order. See SUPPORT ORDER.
temporary order. A court order issued during the
pendency ofa suit, before the final order or judgment
has been entered.
temporary restraining order. See TEMPORARY RE
STRAINING ORDER.
turnover order. An order by which the court commands
a judgment debtor to surrender certain property to
a judgment creditor, or to the sheriff or constable on
the creditor's behalf. _ Such an order is usu. directed
to property that is difficult to acquire by the ordinary
judgment-collection process, such as share certificates
and accounts receivable. [Cases: Execution (;::::>402.]
umbrella order. See BLANKET ORDER (l).
visitation order. See VISITATION ORDER.
3. Parliamentary law. lhe principles and practices of
parliamentary law; the conduct of business accord
ing to those principles and practices; DECORUM. See IN
ORDER; OUT OF ORDER. 4. Parliamentary law. An item
of business, or an agenda or series of such items <call
for the orders ofthe day>. See AGENDA.
general Qrder. An order of the day other than a special
order. See order ofthe day (1). Cf. special order.
order ofbusiness. 1. AGE::-IDA. 2. The sequence in which
a meeting considers its business.
"A settled order of business is, however, necessary for
the government of the presiding person, and to restrain
individual members from calling up favorite measures, or
matters under their special patronage, out of their just
turn. It is useful also for directing the discretion of the
house, when they are moved to take up a particular matter,
to the prejudice of others having priority of right to their
attention in the general order of business." Thomas Jef
ferson, A Manual of Parliamentary Practice 30 (1801).
order ofthe day. 1. An item of business scheduled for
consideration at a certain upcoming meeting, at a
certain time, or in a certain order . An order of the
day is either a general order or a speCial order. 2. The
daily order ofbusiness. See order ofbusiness.
special order. An order of the day scheduled for con
sideration at a certain time, and which outranks and
interrupts any other business except another special
order absolute 1208
order scheduled earlier for the same time. See TIME
CERTAIN.
5. Parliamentary law. A vote that assigns a duty to an
officer, employee, or other agent, customarily in the
form, "Ordered, That ...." 6. Parliamentary law. RULE
(3). 7. Commercial law. The words in a draft (such
as a check) directing one person to pay money to or
deliver something to a designated person . An order
should appear to be the demand of a right as opposed
to the request for a favor. See order paper under PAPER.
[Cases: Bills and Notes (::::::>4.] 8. Securities. A custom
er's instructions to a broker about how and when to buy
or sell securities.
all-or-none order. An order to buy a security to be
executed either in its entirety or not at all.
alternative order. An order to buy a security by either of
two alternatives (e.g., buy a stock at a limited price or
buy on a stop order). -Also termed either-or order.
buy order. An investor's instruction to purchase stock.
day order. An order to buy or sell on one particular day
only. Cf. open order.
discretionary order. An order to buy or sell at any price
acceptable to the broker.
either-or order. See alternative order.
fill-or-kill order. An order that must be executed as
soon as it reaches the trading floor. If the order is
not filled immediately, it is canceled.
limit order. An order to buy or sell at a specified price,
regardless of market price. Cf. no-limit order.
market order. An order to buy or sell at the best price
immediately available on the market. -Also termed
order at the market.
matched order. An order to buy and sell the same
security, at about the same time, in about the same
quantity, and at about the same price.
no-limit order. An order to buy or sell securities with
no limits on price. Cf. limit order.
open order. An order that remains in effect until filled
by the broker or canceled by the customer. Cf. day
order.
order at the market. See market order.
percentage order. An order to buy or sell a stated
amount of a certain stock after a fixed number of
shares of the stock have traded.
scale order. An order to buy or sell a security at varying
price ranges.
sell order. An investor's instruction to sell stock.
split order. An order directing a broker to sell some
stock at one price and some stock at another price.
stop order. An order to buy or sell when the secu
rity's price reaches a specified level (the stop price)
on the market. By fixing the price beforehand, the
investor is cushioned against stock fluctuations.
Also termed stop-loss order; stop-limit order. [Cases:
Brokers (::::::>24(1).] time order. An order that kcomes a market or limited
price order at a specified time.
order absolute. See decree absolute under DECREE.
order assigning residue. A probate court's order naming
the persons entitled to receive parts of an estate and
allotting that share to each.
order at the market. See market order under ORDER
(8).
order bill oflading. See BILL OF LADING.
order document. See order paper under PAPER.
ordered, adjudged, and decreed. (l7c) The traditional
words used to introduce a court decision <It is there
fore ordered, adjudged, and decreed that Martin must
return the overpayment to Hurley>.
"The usual style of a decree is 'it is ordered, adjudged, and
decreed'; and of an order or rule, 'it is ordered: etc." 1
Henry Campbell Black, A Treatise on the Law ofJudgments
2, at 6-7 (2d ed. 1902).
order instrument. See order paper under PAPER.
orderly officer. See officer ofthe day under OFFICER (2).
order nisi. See decree nisi under DECREE.
order of business. See ORDER (4).
order of dismissal. See dismissal order under ORDER.
order of filiation. See filiation order under ORDER (2).
Order of the Coif (koyO. 1. Formerly, the order of
serjeants-at-law, the highest order of counsel at the
English Bar . The last serjeant was appointed to the
Order in 1875.2. An honorary legal organization whose
members are selected on the basis of their law-school
grades. See COIF.
order of the day. See ORDER (4 |
members are selected on the basis of their law-school
grades. See COIF.
order of the day. See ORDER (4).
order paper. See PAPER.
order to pay. See ORDER (2).
Order, Resolution, or Vote Clause. U.S. Const. , art. 1,
7, d. 3.
order to show cause. See show-cause order under ORDER
(2).
ordinance (or-d;J-n;Jnts). (l4c) An authoritative law or
decree; esp., a municipal regulation . Municipal gov
ernments can pass ordinances on matters that the state
government allows to be regulated at the local level. A
municipal ordinance carries the state's authority and
has the same effect within the municipality's limits as
a state statute. -Also termed bylaw; municipal ordi
nance. [Cases: Municipal Corporations (::::::> 105.]
"An ordinance ... may be purely administrative in nature,
establishing offices, prescribing duties, or setting salaries;
it may have to do with the routine or procedure of the
governing body. Or it may be a governmental exercise of
the power to control the conduct of the public -estab
lishing rules which must be complied with, or prohibiting
certain actions or conduct. In any event it is the determi
nation of the sovereign power of the state as delegated
to the municipality. It is a legislative enactment, within
its sphere, as much as an act of the state legislature." 1
Judith O'Galiagher, Municipal Ordinances lA.Ol, at 3 (2d
ed. 1998).
1209 organic law
ordinandi lex (or-d<l-nan-dI leks). [Latin] The law ofpro
cedure, as distinguished from substantive law.
ordinarily prudent person. See REASONABLE PERSON.
ordinary, adj. (15c) 1. Occurring in the regular course
ofevents; normal; usual. Cf. EXTRAORDINARY. 2. (Of a
judge) having jurisdiction by right ofoffice rather than
by delegation. 3. (Ofjurisdiction) original or immedi
ate, as opposed to delegated.
ordinary, n. 1. Eccles. law. A high-ranking official who
has immediate jurisdiction over a specified territory,
such as an archbishop over a province or a bishop over
a diocese. 2. Civil law. A judge having jurisdiction by
right ofoffice rather than by delegation. 3. A probate
judge. -The term is used in this sense only in some
U.S. states.
ordinary ambassador. See resident ambassador under
AMBASSADOR.
ordinary and necessary business expense. See ordinary
and necessary expense under EXPENSE.
ordinary and necessary expense. See EXPENSE.
ordinary annuity. See ANNUITY.
ordinary assembly. See ASSEMBLY.
ordinary care. See reasonable care under CARE.
ordinary committee. See COMMITTEE.
ordinary course ofbusiness. See COURSE OF BUSINESS.
ordinary diligence. See DILIGENCE.
ordinary gain. See GAIN (3).
ordinary goods. See GOODS.
ordinary high tide. See mean high tide under TIDE.
ordinary income. See INCOME.
ordinary insurance. See ordinary life insurance under
LIFE INSCRANCE.
ordinary law. See STATUTORY LAW.
ordinary life insurance. 1. See LIFE INSURANCE. 2. See
whole life insurance under LIFE INSURANCE.
ordinary loss. See LOSS.
ordinary main motion. See original main motion under
MOTION (2).
ordinary majority. See simple majority under MAJOR
ITY.
ordinary meaning. See plain meaning under MEANING.
ordinary-meaning rule.!. The rule that when a word
is not defined in a statute or other legal instrument,
the court normallv construes it in accordance with
its ordinary or nat~lfal meaning. 2. PLAIN-MEANING
RULE.
ordinary negligence. See NEGLIGENCE.
ordinary-observer test. See AUDIENCE TEST.
ordinary's court. See probate court under COURT.
ordinary seaman. See SEAMAN.
ordinary shares. See common stock under STOCK. ordinary skill. 1. See SKILL. 2. See ORDINARY SKILL IN
THE ART.
ordinary skill in the art. Patents. The level oftechnical
knowledge, experience, and expertise possessed by a
typical engineer, scientist, deSigner, etc. in a technol
ogy that is relevant to an invention. [Cases; Patents
16(3).]
ordinary standing rule. See standing rule (1) under RULE
(3)
ordinary work product. See fact work product under
WORK PRODUCT.
ordinatio forestae (or-di-nay-shee-oh for-es-tee), n. See
ASSISADE FORESTA.
ordinatum est (or-d;}-nay-t<lm est). [Law Latin] Hist. It is
ordered. _ 1hese were the usual first words ofa court
order entered in Latin.
ordinis beneficium (or-d<l-nis ben-<l-fish-ee-<lm). [Latin
"the benefit oforder"] Civil law. The privilege ofa surety
to require the creditor to exhaust the principal debtor's
property before having recourse against the surety. See
DISCUSSION.
ordo attachiamentorum (or-doh <l-tach-ee-<l-men
tor-<lm). [Law Latin] Hist. The order ofattachments.
ordo judiciorum (or-doh joo-dish-ee-or-<lm). [Latin]
Eccles. law. The order ofjudgments; the rule by which
the course ofhearing each case was prescribed.
ordonnance (or-d<l-nants or or-doh-nahns). [French]l.
A law, decree, or ordinance. 2. A compilation ofa body
oflaw on a particular subject, esp. prizes and captures
at sea.
oredelf(or-delf). Hist. The right to dig for mineral are on
one's own land. -Also spelled oredelfe; ordelf.
ore tenus (or-ee tee-n<lS or ten-<ls), adv. &adj. [Latin "by
word of mouth"] (17c) 1. Orally; by word of mouth;
VIVA VOCE <pleading carried on ore tenus>.
"Pleadings are the mutual altercations between the plaintiff
and defendant; which at present are set down and deliv
ered into the proper office in writing, though formerly they
were usually put in by their counsel are tenus, or viva voce,
in court, and then minuted down by the chief clerks, or pro
thonotaries; whence in our old law French the pleadings are
frequently denominated the parol." 3 William Blackstone,
Commentaries on the laws of England 293 (1768).
2. Made or presented orally <ore tenus evidence>.
ore tenus rule. (1964) The pres ption that a trial court's
findings offact are correct should not be disturbed
unless clearly wrong or unjust. [Cases: Appeal and
Error C=>931(1).]
orfgild. Hist. 1. Restitution given by the hundred or
county to a person whose property was stolen. -Also
termed cheapgild. 2. A payment in or restoration of
cattle.
organic act. See organic statute under STATUTE.
organic disease. See DISEASE.
organic law. (1831) 1. The body oflaws (as in a constitu
tion) that define and establish a government; FUNDA
MENTAL LAW. 2. Civil law. Decisional law; CASELAW.
organic statute 1210
organic statute. See STATUTE.
organization. (1Sc) 1. A body ofpersons (such as a union
or corporation) formed for a common purpose. -Also
termed society. 2. See UNION.
organizational crime. See corporate crime under
CRIME.
organizational expense. See EXPENSE.
organizational meeting. See MEETING.
organizational picketing. See PICKETING.
organizational strike. See recognition strike under
STRIKE.
organized crime. (1867) 1. Widespread criminal activi
ties that are coordinated and controlled through a
central syndicate. See RACKETEERING. 2. Persons
involved in these criminal activities; a syndicate of
criminals who rely on their unlawful activities for
income. See SYNDICATE.
organized labor. 1. Workers who are affiliated by mem
bership in a union. 2. A union, or unions collectively,
considered as a political force. [Cases: Labor and
Employment C:=>988.]
organ trafficking. See TRAFFICKING.
original. See original writ under WRIT.
original acquisition. See ACQUISITION.
original administration. See ADMINISTRATION.
original bill. See BILL (2).
original contractor. See general contractor under CON
TRACTOR.
original conveyance. See primary conveyance under
CONVEYANCE.
original cost. See acquisition cost (1) under COST (1).
original-document rule. See BEST-EVIDENCE RULE.
original domicile. See domicile of origin under
DOMICILE.
original drawing. See DRAWING.
original estate. See ESTATE (1).
original evidence. See EVIDENCE.
originalia (d-rij-d-nay-lee-d or -nayl-yd). Hist. Records
compiled in the Chancery and transmitted to the
Remembrancer's office in the Exchequer. These
records were kept from 1236 to 1837. Cf. RECORDA.
original intent. See INTENT (2).
originalism. (1980) Constitutional law. The theory that
the U.S. Constitution should be interpreted according
to the intent of those who drafted and adopted it. Cf.
INTERPRETIVISM; NONINTERPRETIVISM.
original issue. See ISSUE (2).
original-issue discount. The difference between a bond's
face value and the price at which it is initially sold.
Abbr.OID.
originality. (18c) Copyright. 1. The quality or state of
being the product of independent creation and having a minimum degree of creativity. Originality is a
requirement for copyright protection. But this is a
lesser standard than that ofnovelty in patent law: to be
original, a work does not have to be novel or unique. Cf.
NOVELTY. [Cases: Copyrights and Intellectual Property
C:=> 12(1).] 2. The degree to which a product claimed
for copyright is the result of an author's independent
efforts. Cf. CREATIVITY. [Cases: Copyrights and Intel
lectual Property C:=> 12(1).]
"'Original' in reference to a copyrighted work means that
the particular work 'owes its origin' to the 'author.' No
large measure of novelty is necessary." Alfred Bell & Co.
v. Catalda Fine Arts, Inc., 191 F.2d 99,102 (2d Cir. 1951)
(Frank, j.).
original jurisdiction. See JURISDICTION.
original main motion. See MOTION (2).
original market. See primary market under MARKET.
original-package doctrine. Constitutional law. The
principle that imported goods are exempt from state
taxation as long as they are unsold and remain in the
original packaging . The Supreme Court abolished this
doctrine in 1976, holding that states can tax imported
goods if the tax is nondiscriminatory. See IMPORT
EXPORT CLAUSE. [Cases: Commerce C:=>77.10(3).]
original precedent. See PRECEDENT.
original process. See PROCESS.
original promise. See PROMISE.
original receiver. See principal receiver under RECEIVER.
original source. The person or persons who first dis
closed fraud to the government, derived from direct
and indirect information on which a qui tam complaint
is based under the False Claims Act or a similar state
law. [Cases: United States C:=> 122.]
original title. See TITLE (2).
original writ. See WRIT.
original-writing rule. See BEST-EVIDENCE RULE.
origination clause. (often cap.) (1984) 1. The constitu
tional provision that all bills for increasing taxes and
raising revenue must originate in the House ofRepre
sentatives, not the Senate (U.S. Const. art. I, 7, cl. 1).
The Senate may, however, amend revenue bills. 2. A
provision in a state constitution requiring that revenue
bills originate in the lower house ofthe state legislature.
[Cases: Statutes C:=>6.]
origination fee. See FEE (1).
originator. The entity that initiates a funds transfer
subject to UCC article 4A. UCC 4A-104(c). [Cases:
Banks and Banking C:=> 188.5.]
"or" lease. See LEASE.
ornamental fixture. See FIXTURE.
ornest. Hist. See TRIAL BY COMBAT.
ORP. abbr. Ordinary, reasonable, and prudent -the
standard on which negligence cases are based.
orphan, n. (ISc) 1. A child whose parents are dead.
[Cases: Infants C:=>2.] 2. A child with one dead parent
1211
and one living parent. -More properly termed half
orphan. 3. A child who has been deprived of parental
care and has not been legally adopted; a child without
a parent or guardian. [Cases: Infants C:::J157.]
orphan drug. See DRUG.
orphan's business. Hist. A probate court's jurisdiction
over the allotment ofdistributive shares ofan estate to
the decedent's family, esp. the children.
orphan's court. See probate court under COURT.
OS. See ordinary seaman under SEAMAN.
O.S. abbr. OLD STYLE.
OSc. abbr. OFFICE OF SPECIAL COUNSEL.
OSHA (oh-sha). abbr. 1. OCCUPATIONAL SAFETY AND
HEALTH ACT OF 1970. 2. OCCUPATIONAL SAFETY AND
HEALTH ADMINISTRATION.
OSHRC. abbr. OCCUPATIONAL SAFETY AND HEALTH |
HEALTH ADMINISTRATION.
OSHRC. abbr. OCCUPATIONAL SAFETY AND HEALTH
REVIEW COMMISSION.
OS!. abbr. See OFFICE OF SPECIAL INVESTIGATIONS.
OSM. abbr. OFFICE OF SURFACE MINING RECLAMATION
AND ENFORCEMENT.
o.s.p. abbr, OBUT SINE PROLE.
ostendit vobis (os-ten-dit voh-bis). [Latin} Hist. Shows
to you . In old pleading, these words were used by a
demandant to begin a count.
ostensible (ah-sten-sa-bal), adj. (18c) Open to view;
declared or professed; apparent.
ostensible agency. See agency by estoppel under AGENCY
(1).
ostensible agent. See apparent agent under AGENT (2).
ostensible authority. See apparent authority under
AUTHORITY (1).
ostensible partner. See nominal partner under
PARTNER.
OSTP. See OFFICE OF SCIENCE AND TECHNOLOGY
POLlCY.
ostrich defense. See DEFENSE (1).
ostrich instruction. See JURY INSTRUCTION.
OTA. abbr. OFFICE OF TECHNOLOGY ASSESSMENT.
OTC. abbr. OVER-THE-COUNTER.
OTC market. abbr. OVER-THE-COUNTER MARKET.
other consideration. See CONSIDERATION (1).
other good and valuable consideration. See other con
sideration under CONSIDERATION.
other income. See INCOME.
other-insurance clause. An insurance-policy provision
that attempts to limit coverage ifthe insured has other
coverage for the same loss . The three major other
insurance clauses are the pro rata clause, the excess
clause, and the escape clause. See ESCAPE CLAUSE;
EXCESS CLAUSE; PRO RATA CLAUSE. [Cases: Insurance
C:::J2109.) outcome responsibility
other-property rule. The principle that tort recovery
is unavailable if the only damage caused by a product
defect is to the product itself. See East River S.S. Corp.
v. Transamerica Delaval, Inc., 476 U.S. 858, 106 S. Ct.
2295 (1986). Insurance (''-::>2109.]
OTP. abbr. Office of Technology Policy. See TECHNOL
OGY ADMINISTRATION.
OTS. abbr. OFFICE OF THRIFT SUPERVISION.
OTSA. abbr. OFFICE OF TAX-SHELTER ANALYSIS.
~UI. abbr. Operating under the influence. See DRIVING
UNDER THE INFLUENCE. [Cases: Automobiles C~
332.]
our federalism. (often cap.) (1971) The doctrine holding
that a federal court must refrain from hearing a consti
tutional challenge to state action iffederal adjudication
would be considered an improper intrusion into the
state's right to enforce its own laws in its own courts.
Cf. ABSTENTION; FEDERALISM. [Cases: Federal Courts
C:::J43, 46.]
oust, vb. (lSc) To put out of possession; to deprive of a
right or inheritance.
ouster. (l6c) 1. The wrongful dispossession or exclu
sion ofsomeone (esp. a cotenant) from property (esp.
real property); DISPOSSESSION. [Cases: Property~,:) 10;
Tenancy in Common 14,15.] 2. The removal of a
public or corporate officer from office. Cf. EJECTMENT.
[Cases: Officers and Public Employees
ouster Ie main (ow-star I;) mayn). [Law French "remove
the hand"] Hist. 1. A delivery ofland out of the mon
arch's hands because the monarch has no right or
title to hold it. 2. A judgment or writ granting such
a delivery. 3. A delivery ofland from a guardian to a
ward once the ward attains legal age. -Also ,vritten
ouster-ie-main.
outbuilding. (l7c) A detached building (such as a shed or
garage) within the grounds of a main building.
outcome-determinative test. (1959) Civil procedure. A
test used to determine whether an issue is substantive
for purposes of the Erie doctrine by examining the
issue's potential effect on the outcome ofthe litigation.
See ERIE DOCTRINE. [Cases: Federal Courts C:::J373.]
outcome responsibility. The view that those who cause
harm are responsible for it even in the absence of fault.
Cf. strict liability under LIABILITY.
"Outcome responsibility serves to foster a sense of identity
because it does not stretch indefinitely into the future but
enables each of us to claim for ourselves, or to share with a
few others, outcomes of limited extent, whether successes
or failures. Yet outcome responsibility for harm to another
does not by itself create a duty to compensate. The form
that our responsibility for an outcome should take remains
an open question. An apology or telephone call will often
be enough. But outcome responsibility is a basis on which
the law can erect a duty to compensate if there is reason to
do so. There will be some reason to do so if the conduct in
question is socially undesirable and if there is also reason
to treat the harm suffered as the infringement of a right."
Tony Honore, Responsibility and Fault 77-78 (1999).
outer bar. English law. A group of junior barristers
who sit outside the dividing bar in the court. These
barristers rank below the King's Counselor Queen's
Counsel. - Also termed utter bar. Cf. INNER BAR.
outer barrister. See BARRISTER.
Outer House. Scots law. The first-instance jurisdiction of
the Court of Session. See COURT OF SESSION (1).
outer space. (1842) 1. The known and unknown areas
of the universe beyond airspace. The boundary
between airspace and outer space is not fixed or precise.
Cf. AIRSPACE. 2. Int'llaw. The space surrounding the
planet that by United Nations treaty is not subject to
claim of appropriation by any national sovereignty .
The treaty does not expressly define outer space. See
OUTER SPACE TREATY.
Outer Space Treaty. Int'llaw. The short title of the United
Nations Treaty on Principles Governing the Activities
of States in the Exploration and Use of Outer Space,
Including the Moon and Other Celestial Bodies, 18
U.S.T. pt. 3, at 2410 (Jan. 27, 1967). This treaty stipu
lates that, because space exploration is in the interest of
all humanity, no nation may claim territory, establish
military bases, or station weapons on any other planet
or a moon. The treaty also declares that international
law and the United Nations charter apply in space. See
OUTER SPACE.
outfangthief (owt-fang-theef). [fr. Old English ut "out"
+ fangen "taken" + theof"thief"J Hist. The right of a
lord of a manor to pursue a thief outside the manor's
jurisdiction and to bring the thief back for trial and
punishment; a lord's right to punish all thefts com
mitted within his territories, wherever the thief might
be caught. -Also spelled outfangthef; utfangthief;
utfangthef; outfangthef Cf. INFANGTHIEF.
outlaw, n. (bef. 12c) 1. A person who has been deprived
ofthe benefit and protection ofthe law; a person under
a sentence ofoutlawry. 2. A lawless person or habitual
criminal; esp., a fugitive from the law. 3. Int'llaw. A
person, organization, or nation under a ban or restric
tion because it is considered to be in violation ofinter
national law or custom.
outlaw, vb. (I8c) 1. To deprive (someone) of the benefit
and protection ofthe law; to declare an outlaw <outlaw
the fugitive>. 2. To make illegal <outlaw fireworks
within city limits>. 3. To remove from legal jurisdic
tion or enforcement; to deprive oflegal force <outlaw
a claim under the statute>.
outlawry. 1. Hist. The act or process of depriving
someone of the benefit and protection of the law. 2.
The state or condition of being outlawed; the status of
an outlaw. 3. Disregard or disobedience of the law. See
SACER; CONSECRATIO CAPITIS.
outlaw strike. See wildcat strike under STRIKE.
outline form. Patents. A style of writing patent claims
that uses a numbered or lettered subparagraph for each
element. Cf. COLON-SEMICOLON FORM; SINGLE-PARA
GRAPH FORM; SUBPARAGRAPH FORM. out-of-court, adj. (1950) Not done or made as part of a
judicial proceeding <an out-of-court settlement> <an
out-of-court statement that was not under oath>. See
EXTRAJUDICIAL.
out-of-court settlement. See SETTLEMENT (2).
out-of-home placement. Family law. The placing of a
child in a living arrangement outside the child's home
(as in foster care or institutional care), usu. as the result
of abuse or neglect; specif., in a child-abuse or child
neglect case, state action that removes a child from a
parent's or custodian's home and places the child in
foster care or with a relative, either temporarily or for
an extended period. Cf. FOSTER-CARE PLACEMENT.
[Cases: Infants C=::'226.J
out-of-hospital do-not-resuscitate order. See DO-NOT
RESUSCITATE ORDER.
out of order. (I8c) 1. (Of a motion) not in order <the
motion is out of order because it conflicts with the
bylaws>. See IN ORDER. A motion may be "out of
order" because it is inherently inappropriate for the
deliberative assembly's consideration at any time (e.g.,
because it proposes an unlawful action). A motion that
is not appropriate simply because it is brought before
the meeting at the wrong time but that may be appro
priate for consideration at another time is more pre
cisely referred to as "not in order."
"Motions that conflict with the corporate charter. constitu
tion or bylaws of a society. or with procedural rules pre
scribed by national. state, or local laws, are out of order,
and if any motion of this kind is adopted, it is null and void.
Likewise. motions are out of order if they conflict with a
motion that has been adopted by the society and has been
neither rescinded, nor reconsidered and rejected after
adoption. Such conflicting motions, if adopted. are null
and void unless adopted by the vote required to rescind or
amend the motion previously adopted." Henry M. Robert.
Robert's Rules of Order Newly Revised 39. at 332 (10th
ed.2000).
2. (Of a person) guilty ofa breach ofdecorum or other
misconduct during a meeting <the member is out of
order>.
out-of-pocket expense. See EXPENSE.
out-of-pocket loss. See LOSS.
out-of-pocket rule. (1940) The principle that a defrauded
buyer may recover from the seller as damages the dif
ference between the amount paid for the property and
the actual value received. Cf. BENEFIT-OF-THE-BARGAIN
RULE (2). [Cases: Fraud C=::'59(3).J
out of the money, adj. (Of a creditor) unpaid because a
debtor has insufficient assets to pay the claim.
out of the state. See BEYOND SEAS (2).
out of time. After a deadline; too late <because the
statute oflimitations expired before the action's filing,
this lawsuit is out of time and should be dismissed>.
output, n. (1841) 1. A business's production ofgoods or
materials; the quantity or amount produced. 2. The
process or fact of producing goods or materials.
output contract. See CONTRACT.
1213
outrage, n. See INTENTIONAL INFLICTION OF EMOTIONAL
DISTRESS.
outrageous conduct. See CONDUCT.
outside director. See DIRECTOR.
outside financing. See FINANCING.
outside party. See THIRD PARTY.
outsourcing agreement. An agreement between a
business and a service provider in which the service
provider promises to provide necessary services, esp.
data processing and information management, using
its own staff and equipment, and usu. at its own facili
ties.
outstanding, adj. (I8c) 1. Unpaid; uncollected <out
standing debts>. 2. Publicly issued and sold <outstand
ing shares>.
outstanding capital stock. See outstanding stock under
STOCK.
outstanding security. See SECURITY.
outstanding stock. See STOCK.
outstanding warrant. See WARRANT (1).
over, adj. (bef. 12c) (Of a property interest) intended to
take effect after the failure or termination of a prior
estate; preceded by some other possessory interest <a
limitation over> <a gift over>.
overage, n. (1909) 1. An excess or surplus, esp. of goods
or merchandise. 2. A percentage of retail sales paid
to a store's landlord in addition to fixed rent. [Cases:
Landlord and Tenant C::::200.3.J
overbreadth doctrine. (1970) Constitutional law. The
doctrine holding that ifa statute is so broadly written
that it deters free expression, then it can be struck
down on its face because of its chilling effect -even
ifit also prohibits acts that may legitimately be forbid
den. _ The Supreme Court has used this doctrine to
invalidate a number oflaws, including those that would
disallow peaceful picketing or require loyalty oaths.
Cf. VAGUENESS DOCTRINE. [Cases: Constitutional Law
C::::1519.]
overdraft. (1843) 1. A withdrawal ofmoney from a bank
in excess of the balance on deposit. [Cases: Banks |
43) 1. A withdrawal ofmoney from a bank
in excess of the balance on deposit. [Cases: Banks and
Banking 150.] 2. The amount of money so with
drawn. Abbr. (in senses 1 &2) OD; old. 3. A line of
credit extended by a bank to a customer (esp. an estab
lished or institutional customer) who might overdraw
on an account.
overdraw, vb. (18c) To draw on (an account) in excess of
the balance on deposit; to make an overdraft.
overhead, n. (1907) Business expenses (such as rent, utili
ties, or support-staff salaries) that cannot be allocated
to a particular product or service; fixed or ordinary
operating costs. -Also termed administrative expense;
office expense. [Cases: Damages 45.J
overheated economy. See ECONOMY.
overinclusive, adj. (1949) (Of legislation) extending
beyond the class of persons intended to be protected Overseas Private Investment Corporation
or regulated; burdening more persons than necessary
to cure the problem <an overinclusive classification>.
overinsurance. 1. Insurance (esp. from the purchase of
multiple policies) that exceeds the value of the thing
insured. 2. Excessive or needlessly duplicative insur
ance. [Cases: Insurance C::::3023, 3043.J
overissue, n. An issue of securities beyond the autho
rized amount ofcapital or credit. [Cases: Corporations
C=;'102.j
overlapping jurisdiction. See concurrent jurisdiction
under JURISDICTION.
overplus. See SURPLUS.
overreaching, n. (16c) 1. The act or an instance oftaking
unfair commercial advantage ofanother, esp. by fraud
ulent means. [Cases: Contracts Sales C:::: 1(1).J 2.
The act or an instance of defeating one's own purpose
by going too far. overreach, vb.
overridden veto. See VETO.
override (oh-v;Jr-rId), vb. (14c) To prevail over; to nullify
or set aside <Congress mustered enough votes to
override the President's veto>.
override (oh-var-rId), n. (1931) 1. A commission paid to a
manager on a sale made by a subordinate. 2. A commis
sion paid to a real-estate broker who listed a property
when, within a reasonable amount of time after the
expiration ofthe listing, the owner sells that property
directly to a buyer with whom the broker had negoti
ated during the term ofthe listing. [Cases: Brokers C=;
56(3).] 3. ROYALTY (2).
overriding royalty. See ROYALTY (2).
overrule, vb. (16c) 1. To rule against; to reject <the
judge overruled all ofthe defendant's objections>. 2.
(Of a court) to overturn or set aside (a precedent) by
expressly deciding that it should no longer be control
ling law <in Brown v. Board ofEducation, the Supreme
Court overruled Plessy v. Ferguson>. Cf. VACATE (1).
[Cases: Courts (;=>100(1).]
"If a decision is not a recent one, and especially if it seems
to be very poor, it should not be relied upon without ascer
taining whether it may not have been expressly or impliedly
overruled by some subsequent one; that is, whether the
court may not have laid down a contrary principle in a
later case." Frank Hall Childs, Where and How to Find the
Law 94 (1922).
"Overruling is an act of superior jurisdiction. A precedent
overruled is definitely and formally deprived of all author
ity. It becomes null and void, like a repealed statute, and
a new principle is authoritatively substituted for the old."
John Salmond, Jurisprudence 189 (Glanville L. Williams ed.,
10th ed. 1947).
overseas bill oflading. See BILL OF LADING.
Overseas Private Investment Corporation. A federally
chartered corporation that promotes private invest
ment in developing countries by making or guaran
teeing loans; supporting private funds that invest in
foreign nations; insuring investments against politi
cal risks; and engaging in outreach activities. _ It was
established as an independent agency by the Foreign
Affairs Reform and Restructuring Act of 1998. The
agency is self-sustaining. Abbr.OPIC. [Cases: United
States (;:::>53(6.1).]
oversman. See UMPIRE.
oversubscription. A situation in which there are more
subscribers to a new issue of securities than there are
securities available for purchase. [Cases: Corporations
(;:::)86.]
overt, adj. (14c) Open and observable; not concealed or
secret <the conspirators' overt acts>.
overt act. (l7c) Criminal law. 1. An act that indicates
an intent to kill or seriously harm another person and
thus gives that person a justification to use self-defense.
[Cases: Assault and Battery 51; Homicide (;:::>
767.] 2. An outward act, however innocent in itself,
done in furtherance of a conspiracy, treason, or
criminal attempt. An overt act is usu. a required
element of these crimes. [Cases: Conspiracy (;:::>27;
Criminal Law 3. See ACTUS REUS. -Also
termed positive act.
over-the-counter, adj. 1. Not listed or traded on an
organized securities exchange; traded between brokers
and dealers who negotiate directly <over-the-counter
stocks>. [Cases: Securities Regulation (;:::>35.13.] 2.
(Of drugs) sold legally without a doctor's prescription
<over-the-counter cough medicine>. -Abbr. OTC.
[Cases: Health 305.]
over-the-counter market. The market for securities that
are not traded on an organized exchange . Over-the
counter (OTC) trading usu. occurs through telephone
or computer negotiations between buyers and sellers.
Many of the more actively traded OTC stocks are listed
on NASDAQ. Abbr. OTC market. [Cases: Securities
Regulation ~~35.13.J
overtime. 1. The hours worked by an employee in excess
of a standard day or week . Under the Fair Labor Stan
dards Act, employers must pay extra wages (usu. 1Ih
times the regular hourly rate) to certain employees
(usu. nonsalaried ones) for each hour worked in excess
of 40 hours per week. [Cases: Labor and Employment
Cr'-=>2305.j 2. The extra wages paid for excess hours
worked.
overtry, vb. (1911) (Of a trial lawyer) to try a lawsuit by
expending excessive time, effort, and other resources
to explore minutiae, esp. to present more evidence than
the fact-trier can assimilate, the result often being that
the adversary gains arguing points by disputing the
minutiae.
overturn, vb. (1842) To overrule or reverse <the court
overturned a long-established precedent>. [Cases:
Courts (;:::> 100(1).J
OWCP. abbr. OFFICE OF WORKERS' COMPENSATION
PROGRAMS.
owelty (oh-dl-tee). (l6c) 1. Equality as achieved by a
compensatory sum of money given after an exchange
of parcels of land having different values or after an
unequal partition of real property. [Cases: Partition
(;:::>84.] 2. The sum of money so paid. OWl. abbr. Operating while intoxicated. See DRIVING
U:-'DER THE INFLUENCE. [Cases: Automobiles (;:::>
332.J
owing, adj. (15c) That is yet to be paid; owed; due <a
balance of$5,000 is still owing>.
owling. Hist. The smuggling of wool or sheep out of
England. The term usu. refers to nighttime smug
gling.
own, vb. (bef. 12c) To rightfully have or possess as
property; to have legal title to.
owned-property exclusion. See EXCLUSION (3).
owner. (bef. 12c) One who has the right to possess, use,
and convey something; a person in whom one or more
interests are vested . An owner may have complete
property in the thing or may have parted with some
interests in it (as by granting an easement or making a
lease). See OWNERSHIP.
adjoining owner. (I8c) A person who owns land
abutting another's; ABUTTER. [Cases: Adjoining
Landowners
beneficial owner. (18c) 1. One recognized in equity as
the owner ofsomething because use and title belong
to that person, even though legal title may belong to
someone else; esp., one for whom property is held
in trust. Also termed equitable owner. [Cases:
Trusts 2. A corporate shareholder who has
the power to buy or sell the shares, but who is not
registered on the corporation's books as the owner.
[Cases: Corporations (;:::>135.]3. Intellectual property.
A person or entity who is entitled to enjoy the rights
in a patent, trademark, or copyright even though legal
title is vested in someone else . The beneficial owner
has standing to sue for infringement. A corporation
is typically a beneficial owner if it has a contractual
right to the assignment ofthe patent but the employee
who owns the patent has failed to assign it. Similarly, a
patent or copyright owner who has transferred title as
collateral to secure a loan would be a beneficial owner
entitled to sue for infringement.
copyright owner. See COPYRIGHT OWNER.
equitable owner. See beneficial owner (1).
general owner. (l8c) One who has the primary or resid
uary title to property; one who has the ultimate own
ership of property. Cf. special owner.
legal owner. (17c) One recognized by law as the owner of
something; esp., one who holds legal title to property
for the benefit of another. See TRUSTEE (1). [Cases:
Trusts
limited owner. (1836) A tenant for life; the owner of
a life estate. See life estate under ESTATE (1). [Cases:
Life Estates (;:::01.]
naked owner. Civil law. A person whose property
is burdened by a usufruct . The naked owner has
the right to dispose of the property subject to the
usufruct, but not to derive its fruits. See USUFRUCT.
[Cases: Estates in Property (;:::> 1.]
1215
owner ofrecord. See record owner.
owner pro hac vice (proh hahk vee-chay). See bareboat
charter under CHARTER (8).
record owner. (1863) 1. A property owner in whose
name the title appears in the public records. 2. STOCK
HOLDER OF RECORD.
sole and unconditional owner. (1871) Insurance. The
owner who has full equitable title to, and exclusive
interest in, the insured property. [Cases: Insurance
~2992(2).1
special owner. (I8c) One (such as a bailee) with a quali
fied interest in property. Cf. general owner.
owners' association. (1968) 1. The basic governing entity
for a condominium or planned unit developments .
It is usu. an unincorporated association or a nonprofit
corporation. [Cases: Associations Condominium
~8.] -Also termed homeowners' association. 2. See
homeowners' association under ASSOCIATION.
owners' equity. (1935) The aggregate of the owners'
financial interests in the assets ofa business entity; the
capital contributed by the owners plus any retained
earnings. Owners' equity is calculated as the differ
ence in value between a business entity's assets and its
liabilities. -Also termed owner's equity; book value;
net book value; (in a corporation) shareholders' equity;
stockholders' equity. [Cases: Taxation ~2545.1
"Owner's equity is the residual claim of the owners of the
business on its assets after recognition of the liabilities
of the business. Owner's equity represents the amounts
contributed by the owners to the business, plus the accu
mulated income of the business since its formation, less
any amounts that have been distributed to the owners."
Charles H. Meyer, Accounting and Finance for Lawyers in
a Nutshell 4 (1995).
ownership. (16c) The bundle of rights allowing one to
use, manage, and enjoy property, including the right
to convey it to others . Ownership implies the right to
possess a thing, regardless ofany actual or constructive
control. Ownership rights are general, permanent, and
heritable. Cf. POSSESSION; TITLE (1). [Cases: Property
11.]
"Ownership does not always mean absolute dominion. The
more an owner, for his advantage, opens up his property
for use by the public in general, the more do his rights
become circumscribed by the statutory and constitutional
powers of those who use it." Marsh v. Alabama, 326 u.s.
501,506,66 S.Ct. 276, 278 (1946) (Black,].).
"Possession is the de facto exercise of a claim; ownership
is the de jure recognition of one. A thing is owned by me
when my claim to it is maintained by the will of the state as
expressed in the law; it is possessed by me, when my claim
to it is maintained by my own selfassertive will. Ownership
is the guarantee of the law; possession is the guarantee
of the facts. It is well to have both forms if possible; and
indeed they normally coexist." John Salmond, jurispru'
dence 311 (Glanville L Williams ed., 10th ed. 1947).
bare ownership. See trust ownership.
beneficial ownership. (18c) 1. A beneficiary's interest
in |
bare ownership. See trust ownership.
beneficial ownership. (18c) 1. A beneficiary's interest
in trust property. Also termed equitable owner
ship. [Cases: Trusts ~139.] 2. A corporate share
holder's power to buy or sell the shares, though the ownership-in-place theory
shareholder is not registered on the corporation's
books as the owner.
bonitary ownership (bahn-a-tair-ee). Roman law. A
type ofeqUitable ownership recognized by the praetor
when the property was conveyed by an informal
transfer, or by a formal transfer by one not the true
owner. -Also termed bonitarian ownership; in bonis
habere.
complete ownership. Hist. Louisiana law. See perfect
ownership.
contingent ownership. (1886) Ownership in which title
is imperfect but is capable of becoming perfect on
the fulfillment ofsome condition; conditional own
ership.
corporeal ownership. (1894) The actual ownership of
land or chattels.
equitable ownership. See beneficial ownership (1).
full ownership. Hist, Louisiana law. See perfect own
ership.
imperfect ownership. Louisiana law. Ownership of
property subject to a usufruct interest held by another.
See La. Civ. Code art. 478. -Also termed naked own
ership.
incorporeal ownership. (1931) The ownership ofrights
in land or chattels.
joint ownership. (18c) Undivided ownership shared by
two or more persons . Typically, an owner's interest,
at death, passes to the surviving owner or owners
by virtue ofthe right of survivorship. [Cases: Joint
Tenancy~L]
naked ownership. Louisiana law. See imperfect own
ership.
ownership in common. (1838) Ownership shared
by two or more persons whose interests are divis
ible. Typically their interests, at death, pass to the
dead owner's heirs or successors. [Cases: Tenancy in
Common
perfect ownership. Hist. Louisiana law. The complete
bundle of rights to use, enjoy, and dispose ofproperty
without limitation. -Also termed full ownership;
complete ownership. [Cases: Property ~7, 11.]
qualified ownership. (I8c) Ownership that is shared,
restricted to a particular use, or limited in the extent
ofits enjoyment.
trust ownership. (1893) A trustee's interest in trust
property. -Also termed bare ownership. [Cases:
Trusts ~133.]
unqualified ownership. Absolute ownership. [Cases:
Property ~7.1
vested ownership. (1867) Ownership in which title is
perfect; absolute ownership.
ownership-in-place theory. Oil & gas. A characteriza
tion ofoil-and-gas rights used in a majority ofjurisdic
tions, holding that the owner has the right to present
possession of the oil and gas in place as well as the
1216 owner's policy
right to use the land surface to search, develop, and
produce from the property, but that the interest in the
minerals terminates if the oil and gas flows out from
under the owner's land. -This theory is used in Texas,
New Mexico, Kansas, Mississippi, and other major pro
ducing states. The rights of a severed-mineral-interest
owner to oil and gas in these states are often described
as an estate in fee simple absolute, but ownership of
specific oil-and-gas molecules is subject to the rule
of capture. See also NONOWNERSHIP THEORY. [Cases:
Mines and Minerals 55,62.1, 73.1(6).]
owner's policy. Real estate. A title-insurance policy
covering the owner's title as well as the mortgagee's
interest. Cf. MORTGAGEE POLICY. [Cases: Insurance ~
2610; Mortgages ~'201.]
own-product exclusion. See EXCLUSION (3).
own-work exclusion. See EXCLUSION (3).
oxfild (oks-fild). Hist. A restitution made by a county
or hundred for a wrong done by someone within that
region.
oxgang (oks-gang). Hist. An amount ofland equal to
what an ox plows in one year, usu. 12 to 15 acres. -An
oxgang, equaling one-eighth of a carucate, was used
to assess land for tax purposes. -Also termed oxgate;
bovata terrae. Cf. CARUCATE.
oyer (oY-::lr or oh-y::lr). [fro Old French orr "to hear"] (15c)
Hist. L A criminal trial held under a commission of
oyer and terminer. See COMMISSION OF OYER AND TERMINER. 2. The reading in open court ofa document
(esp. a deed) that is demanded by one party and read
by the other. 3. Common-law pleading. A prayer to the
court by a party opposing a profert, asking to have the
instrument on which the opponent relies read aloud.
_ Oyer can be demanded only when a profert has been
properly made, but it is disallowed for a private writing
under seal. [Cases: Bills and Notes ~488; Pleading
C:)306.]
"A party having a right to demand oyer is yet not obliged,
in all cases, to exercise that right; nor is he obliged, in
all cases, after demanding it, to notice it in the pleading
he afterwards files or delivers. Sometimes, however, he
is obliged to do both, namely, where he has occasion to
found his answer upon any matter contained in the deed of
which profert is made, and not set forth by his adversary.
In these cases the only admissible method of making such
matter appear to the court is to demand oyer, and, from
the copy given, set forth the whole deed verbatim in his
pleading." BenjaminJ. Shipman, Handbook ofCommonLaw
Pleading 289, at 483 (Henry Winthrop Ballantine ed., 3d
ed.1923).
oyer, demand of. See DEMAND OF OYER.
oyer and terminer (oY-::lr an[d] tar-m::l-n::lr). [Law French
oyer et terminer "to hear and determine"] (15c) 1. See
COMMISSION OF OYER AND TERMINER. 2. COURT OF
OYER AND TERMINER (2).
oyez (oh-yes or oh-yez or oh-yay). [Law French] (I5c)
Hear yeo -The utterance oyez, oyez, oyez is usu. used
in court by the public crier to call the courtroom to
order when a session begins or when a proclamation is
about to be made.
p
P. abbr. PACIFIC REPORTER.
P.A. abbr. See professional association under ASSOCIA
TION.
paage (pay-ij). See PEDAGE.
PAC (pak). abbr. POLITICAL-ACTION COMMITTEE.
pacare (pa-kair-ee), vb. [Law Latin] I-list. To pay.
PACER. abbr. PUBLIC ACCESS TO COURT ELECTRONIC
RECORDS.
pacification (pas-a-fi-kay-sh;m), n. (ISc) Int'llaw. The
act ofmaking peace between two belligerent nations.
pacify (pas-a-h), vb.
pacific blockade. See BLOCKADE.
padfidst. See PACIFIST.
Pacific Reporter. A set of regionallawbooks, part of
the West Group's National Reporter System, contain
ing every officially published appellate decision from
Alaska, Arizona, California, Colorado, Hawaii, Idaho,
Kansas, Montana, Nevada, New Mexico, Oklahoma,
Oregon, Utah, Washington, and Wyoming, from 1883
to date. -The first series ran from 1883 to 1931; the
second series ran until 2000; the third series is the
current one. -Abbr. P.; P.2d; P.3d.
pacifism (pas-a-fiz-am). (1902) Int'llaw. The advocacy of
peaceful methods rather than war as a means of solving
disputes.
pacifist (pas-d-fist), n. (1906) A person who is opposed to
war; a person who believes in pacifism. -Also termed
pacificist. Cf. CONSCIENTIOUS OBJECTOR.
pack, vb. (16c) To choose or arrange (a tribunal, jurors,
etc.) to accomplish a desired result <pack a jury>.
package mortgage. See MORTGAGE.
package policy. See INSURANCE POLICY.
packing, n. A gerrymandering technique in which a
dominant political or racial group minimizes minority
representation by concentrating the minority into as
few districts as possible. Cf. CRACKING; STACKDIG (2).
[Cases: Ejections 12(6).J
packing a jury. See JURY-PACKING.
Pac-Man defense (pak-man). An aggressive antitakeover
defense by which the target company attempts to take
over the bidder company by making a cash tender offer
for the bidder company's shares. _ The name derives
from a video game popular in the 1980s, the object
of which was to gobble up the enemy. This defense
is seldom used today. Cf. CROWN-JEWEL DEFENSE;
SCORCHED-EARTH DEFENSE.
pact. (15c) An agreement between two or more parties;
esp., an agreement (such as a treaty) between two or
more nations or governmental entities. "Popular understanding notwithstanding, there is no legal
difference between various kinds of international instru
ments because of the name they are given. In other words,
'treaties,' 'pacts,' 'protocols,' 'conventions,' 'covenants,'
and 'declarations' are all terms to convey international
agreements. Some of these terms may connote more or less
solemnity or formality, but it does not matter for purposes
of characterizing an accord as an international agreement,
binding under international law." Davidj. Bederman, Inter
national Law Frameworks 25 (2001).
pacta sunt servanda (pak-t<J s<Jnt s<Jr-van-dd). [Latin
"agreements must be kept"] The rule that agreements
and stipulations, esp. those contained in treaties, must
be observed <the Quebec courts have been faithful to
the pacta sunt servanda principle>. [Cases: Contracts
C:=> 1.]
pact de non alienando (pakt dee non ay-Iee-a-nan-doh).
[Latin] Civil law. An agreement not to alienate encum
i bered (esp. mortgaged) property. -This stipulation will
' not void a sale to a third party, but it does allow the
mortgagee to proceed directly against the mortgaged
property without notice to the purchaser.
pactio (pak-shee-oh). [Latin] Civil law. 1. The negotiating
process that results in a pactum. 2. The pactum arrived
at; an agreement. PI. pactiones.
paction (pak-shan). 1. PACTIO. 2. Int'llaw. An agreement
between two nations to be performed by a Single act.
i
pactionai, adj. Relating to or generating an agreement.
paction ally, adv.
Pact of Paris. See KELLOGG-BRIAND PACT.
I pactum (pak-tam), n. [Latin] Roman & civil law. An
I agreement or convention, usu. falling short of a
'contract; a pact. -Also termed pactum conventum.
PLpacta.
pactum constitutae pecuniae (pak-tdm kon-sta-t[y]
oo-tee pi-kyoo-nee-ee). [Latin "agreement for a fixed
sum of money"] See pactum de consituto.
pactum corvinum de hereditate viventis (pak-tdm
kor-vI-ndm dee ha-red-i-tay-tee vl-ven-tis). [Latin "a
raven-like contract on the inheritance ofthe living"]
An agreement concerning the succession of one still
liVing. -Also termed pactum de successione viventis;
pactum super hereditate viventis.
"It is supposed that the Romans called this a corvine agree
ment (pactum coyvinum) on account of the eager rapacity
of ravens, which prompts them to attack and commence
to devour animals weakened and dying before death has
actually taken place." John Trayner, Trayner's Latin Maxims
429 (4th ed. 1894).
pactum de constituto (pak-tam dee kon-sti-t[y]oo-toh).
[Latin "an agreement"] An informal agreement to pay
an existing debt, one's own or another's, at a fixed
time. _ The agreement was enforceable by a praetor.
Justinian extended the pactum de canstituto from
1218 pad
money to debts ofany kind. The pactum could also be
used to give security; it differs from fidejussion mainly
in its informality. Also termed pactum constitutae
pecuniae. See CONSTITGTUM. Cf. FIDEJUSSION.
pactum de non petendo (pak-tam dee non pa-ten-doh).
[Latin "agreement not to sue") An agreement in which
a creditor promises not to enforce the debt.
pactum de quota litis (pak-tam dee kwoh-ta II-tis).
[Latin "agreement about a portion of the amount in
issue"] An agreement in which a creditor promises to
pay a portion ofa difficult-to-collect debt to a person
attempting to collect it; an agreement to share the
proceeds ofa litigation.
pactum de retrovendendo (pak-tam dee re-troh-ven
den-doh). [Latin] An agreement concerning the
selling back of an object. This agreement gave the
seller the right to repurchase the item sold within a
certain period and at a fixed price.
pactum de successione viventis (pak-tam dee sak
ses[h)-ee-oh-nee vI-ven-tis). [Latin] See pactum
corvinum de hereditate viventis.
pactum displicentiae (pak |
Latin] See pactum
corvinum de hereditate viventis.
pactum displicentiae (pak-tam dis-pli-sen-shee-I).
Roman law. A sale on approval. The buyer had the
property on trial and could reject it.
pactum donationis (pak-tam doh-nay-shee-oh-nis).
[Latin] An agreement to make a gift . Justinian made
such agreements enforceable. Ifinformal, the agree
ment would be valid up to a fix sum (500 solidi).
pactum illicitum (pak-tam i-lis-a-tam). [Latin] An
illegal agreement.
pactum legis commissoriae (pak-tam lee-jis kom-i-sor
ee-ee). [Latin] An agreement under which the seller
received the benefit of the lex commissoria. See LEX
COMMISSORIA.
pactum legis commissoriae in pignoribus (pak-t<lm
lee-jis kom-i-sor-ee-ee in pig-nor-a-bas). [Law Latin]
An agreement giving the pledgee the benefit ofa for
feiture clause. See LEX COMMISSORIA.
"The pactum legis commissoriae in pignoribus was ... a
Roman law paction, sometimes adjected to a redeemable
right, whereby it was provided, that, if the subject were not
redeemed against a determinate day, the right of reversion
should be irritated, and the subject should become the
irredeemable property of him to whom it was impledged.
Such stipulations were held in the Roman law to be contra
bonos mores; but, by the law of Scotland, irritant clauses in
contracts, obligations, infeftments, and the like, are effec
tual." William Bell, Bel/'s Dictionary and Digest ofthe Law of
Scotland 758 (George Watson ed., 7th ed. 1890).
pactum liberatorium (pak-tam Iib-ar-a-tor-ee-am).
[Law Latin "a liberating agreement"] An agree
ment liberating parties from honOring a real right.
This type of agreement appears to have been long
defunct.
pactum super hereditate viventis (pak-tam s[y]oo-par
ha-red-i-tay-tee vI-ven-tis). [Law Latin] See pactum
corvinum de hereditate viventis. pad, vb. (1831) Slang. (Of a lawyer, paralegal, etc.) to
overstate the number of (billable hours worked). See
BILLABLE HOUR. padding, n.
padded-payroll rule. See FICTITIOUS-PAYEE RULE.
paid-in capital. See CAPITAL.
paid-in fund. See FUND (1).
paid-in surplus. See SURPLUS.
paid-up insurance. See INSURANCE.
paid-up lease. Oil & gas. A mineral lease that does not
provide for delay-rental payments and does not subject
the lessor to any covenant to drill . In effect, the lessor
makes all delay-rental payments, and perhaps a bonus,
when the lease is Signed. A paid-up lease may be used to
lease a small area or a fractional interest, or for a short
primary term or for small delay rentals. The lease is
effective through the primary term. [Cases: Mines and
Minerals (;:::>78.1(2),78.1(3).]
paid-up policy. See INSURANCE POLICY.
paid-up stock. See full-paid stock under STOCK.
pain and suffering. (1825) Physical discomfort or emo
tional distress compensable as an element of non
economic damages in torts. See DAMAGES. [Cases:
Damages 57.1.]
pain of, on. See ON PAIN OF.
pains and penalties, bill of. See BILL OF PAINS AND PEN
ALTIES.
pair. Parliamentary law. Two voters, usu. legislators,
on opposite sides of an issue who agree that they will
abstain if either cannot vote on the issue. A pair is
usu. announced and recorded.
"In a legislative body it is a rule that no member can vote
who is not present when the question is put, but 'pairing:
which is a type of absentee voting by which a member
agrees with a member who would have voted opposite
to the first member not to vote, has long been used in
Congress and some of the states and has been recognized
by the courts. Each house of the legislature, under the
authority to make rules for its own governance, has power
to recognize what are called 'pairs.'" National Conference
of State Legislatures, Mason's Manual ofLegislative Proce
dure 538, at 385 (2000).
paired vote. See VOTE (1).
pais (payor pays). See IN PAIS.
Palace Court. Hist. A court having jurisdiction over all
personal actions arising within 12 miles ofWhitehall.
This court was created by James I in response to com
plaints about the inconvenience of using the itinerant
Court of the Marshalsea; its jurisdiction was similar
to that of the Marshalsea, but the court remained in
Whitehall. It was abolished along with the Court of
the Marshalsea in 1849. -Formerly also termed curia
palatii. See COURT OF THE MARSHALSEA.
"The court of the marsha/sea, and the palace court at
Westminster, though two distinct courts, are frequently
confounded together. The former was originally holden
before the steward and marshal of the king's house, and
was instituted to administer justice between the king's
domestic servants, that they might not be drawn into
other courts, and thereby the king lose their service....
1219
But this court being ambulatory, and obliged to follow
the king in all his progresses, so that by the removal of
the household, actions were frequently discontinued, and
doubts having arisen as to the extent of its jurisdiction, , .
[the king] erected a new court of record, called the curia
palatii, or palacecourt, to be held before the steward of
the household and knight marshal, and the steward ofthe
court, or his deputy; with jurisdiction to hold plea of all
manner of personal actions whatsoever, which shall arise
between any parties within twelve miles of his majesty's
palace at Whitehall." 3 William Blackstone, Commentaries
on the Laws of England 76 (1768).
palimony (pal-;}-moh-nee). [Portmanteau word from
pal + alimol1Y) (1977) 1. A court's award of post-rela
tionship support or compensation for services, money,
and goods contributed during a long-term nonmari
tal relationship, esp. where a common-law marriage
cannot be established . Though not recognized under
most state statutes, caselaw in some jurisdictions
authorizes palimony claims. The term originated in
the press coverage of Marvil1 v. Marvil1, 557 P.2d 106
(CaL 1976). Cf. ALIMONY. [Cases; Marriage 2.
Loosely, child support. This sense is esp. common in
the United Kingdom.
pallio cooperire (pal-ee-oh koh-op-;}-rI-ree). [Latin "to
cover with a pallium"] Hist. A marriage ofpersons who
have already had a child together . The pallium was
a veil or cover over the bride, which was extended to
cover the bastard child. Its removal at the wedding was
deemed to legitimate the child.
Palmer's Act. An English statute, enacted in 1856, giving
a person accused of a crime falling outside the jurisdic
tion of the Central Criminal Court the right to have
the case tried in that court. St. 19 & 20 Vict., ch. 16.
Also termed Central Criminal Court Act. See CENTRAL
CRIMINAL COURT.
palming off. See PASSING OFF.
Palsgrafrule (pawlz-graf). (1932) Torts. The principle
that negligent conduct resulting in injury will lead to
liability only if the actor could have reasonably foreseen
that the conduct would cause the injury . In Palsgraf v.
Long Islal1d R.R., 162 N.E. 99 (N.Y. 1928), two railroad
attendants negligently dislodged a package of fire
works from a man they were helping board a train.
The package exploded on impact and knocked over
some scales that fell on Mrs. Palsgraf. The New York
Court ofAppeals, in a 4-3 majority opinion written by
Chief Justice Benjamin Cardozo, held that the atten
dants could not have foreseen the possibility of injury
to Palsgraf and therefore did not breach any duty to her.
In the dissenting opinion, Justice William S. Andrews
asserted that the duty to exercise care is owed to all,
and thus a negligent act will subject the actor to liabil
ity to all persons proximately harmed by it, whether or
not the harm is foreseeable. Both opinions have been
widely cited to support the two views expressed in
them. [Cases: Negligence (:='213.]
Pan-American Convention. Copyright. One of a series
of copyright conventions held among Western Hemi
sphere countries to negotiate treaties patterned after
the Berne Convention . The first Convention was held panhandling
in 1902, the last in 1946. The largest was the 1910 Pan
American Convention in Buenos Aires.
pandect (pan-dekt). 1. A complete legal code, esp. of a
nation or a system of law, together with commentary.
2. (cap. & pl.) The 50 books constituting Justinian's
Digest (one of the four works making up the Corpus
Juris Civilis), first published in A.D. 533. The substance
of 2,000 treatises was distilled into this abridgment.
One estimate is that 3 million lines were reduced to
150,000. This prodigious amount of work was carried
out in three short years (A.D. 530-533) by a commission
of 17 jurists headed by Tribonian. Also termed (in
sense 2) Digest. Also spelled (in reference to German
law) pandekt. PI. pandects, pandectae. See CORPUS
JURIS CIVILIS.
pander, n. (15c) One who engages in pandering. -Also
termed panderer. See PIMP.
pandering (pan-dar-ing), n. (l7c) 1. The act or offense
of recruiting a prostitute, finding a place of business
for a prostitute, or soliciting customers for a prosti
tute. -Also termed promoting prostitutiol1. [Cases:
Prostitution 2. The act or offense of selling or
distributing textual or visual material (such as maga
zines or videotapes) openly advertised to appeal to the
recipient's sexual interest. Although the concept of
pandering was invoked by the U.S. Supreme Court in
Gil1zburg v. United States, 383 U.S. 463, 86 S.Ct. 942
(1966), it has seldom been discussed by the Court since
then. pander, vb.
Panduit test. Patel1ts. A four-factor test for measur
ing profits lost because of patent infringement . The
patentee must prove (1) that there was a demand for the
product; (2) that the patentee had the manufacturing
and marketing capacity to meet that demand; (3) that
there were no acceptable noninfringing alternatives
on the market; and (4) how much was lost in profits.
Pal1duit Corp. v. Stahlin Bros. Fibre Works, Inc., 575
F.2d 1152 (6th Cir. 1978). [Cases: Patents C~-:>318.]
P & L. abbr. Profit and loss. See INCOME STATEMENT.
panel. (14c) 1. A list of persons summoned as poten
tial jurors; VENIRE. 2. A group of persons selected to
serve on a jury; JURY. [Cases: Jury (::::066, 78.] 3. A set
of judges selected from a complete court to decide a
specific case; esp., a group of three judges designated
to sit for an appellate court. [Cases: Courts (::::070.] 4.
Scots law. A person indicted in a crime; the accused.
Also spelled (in sense 4) pal1l1el.
panelation (pan-al-ay-sh;m). (2003) The act ofempanel
ing a jury. -Also spelled panel/ation.
panel attorney. See ATTORNEY.
panel-shopping. (1974) The practice of chOOSing the
most favorable group ofjudges to hear an appeal.
panhandling. The act or practice of approaching or
stopping strangers and begging for money or food.
[Cases: Vagrancy 1.J -panhandler, n. pan
handle, vb.
1220 pannage
pannage (pan-ij). Hist. 1. The right to feed animals, esp.
swine, on the windfallen nuts, etc. in a forest. 2. The
payment made to a forest's owner in exchange for the
right.
papal law (pay-p<3I). See CANON LAW.
paper. (14c) 1. Any written or printed document or
instrument. 2. A negotiable document or instru
ment evidencing a debt; esp., commercial documents
or negotiable instruments considered as a group. See
NEGOTIABLE INSTRUMENT. 3. (pl.) COURT PAPERS.
accommodation paper. See ACCOMMODATION PAPER.
bankable paper. Notes, checks, bank bills, drafts, and
other instruments received as cash by banks.
bearer paper. An instrument payable to the person who
holds it rather than to the order of a specific person.
_ Bearer paper is negotiated simply by delivering the
instrument to a transferee. -Also termed bearer
document; bearer instrument. [Cases: Bills and Notes
(;..--:::>210.]
chattel paper (chat- |
instrument. [Cases: Bills and Notes
(;..--:::>210.]
chattel paper (chat-<3I). See CHATTEL PAPER.
commercial paper. 1. An instrument, other than cash,
for the payment of money. _ Commercial paper
typically existing in the form of a draft (such as a
check) or a note (such as a certificate of deposit) is
governed by Article 3 of the UCC. But even though
the UCC uses the term commercial paper when refer
ring to negotiable instruments of a particular kind
(drafts, checks, certificates of deposit, and notes as
defined by Article 3), the term long predates the UCC
as a business and legal term in common use. Before
the UCC, it was generally viewed as synonymous with
negotiable paper or bills and notes. It was sometimes
applied even to nonnegotiable instruments. Also
termed mercantile paper; company's paper. See NEGO
TIABLE INSTRUMENT. [Cases: Bills and Notes C':::'1.J
"'Commercial paper' is rather a popular than a technical
expression, often used, however, both in statutes and in
decisions of courts, to designate those simple forms of
contract long recognized in the world's commerce and
governed by the law merchant." 1 Joseph F. Randolph, A
Treatise on the Law ofCommercial Paper 1, at 1 (2d ed.
1899).
"Defined most broadly, commercial paper refers to any
writing embodying rights that are customarily conveyed
by transferring the writing. A large subset of commercial
paper consists of such writings that are negotiable, which
means that the law enables a transferee to acquire the
embodied rights free of claims and defenses against the
transferor." Richard E. Speidel, Negotiable Instruments and
Check Collection in a Nutshell 1 (4th ed. 1993).
2. Such instruments collectively. Also termed bills
and notes. 3. Loosely, a short-term unsecured prom
issory note, usu. issued and sold by one company to
meet another company's immediate cash needs.
commodity paper. An instrument representing a loan
secured by a bill oflading or warehouse receipt.
order paper. An instrument payable to a specific payee
or to any person that the payee deSignates. -Also
termed order document; order instrument. [Cases:
Bills and Notes ~208.] paper loss. See LOSS.
paper market. See derivative market under MARKET.
paper money. See MONEY.
paper patent. See PATENT (3).
paper profit. See PROFIT (1).
papers. See COURT PAPERS.
paper standard. A monetary system based entirely on
paper; a system ofcurrency that is not convertible into
gold or other precious metal. Cf. GOLD STANDARD.
paper street. See STREET.
paper title. See record title under TITLE (2).
Papian law. See LEX PAPIA POPPEA.
par. See PAR VALUE.
parade-of-horrors objection. See WEDGE PRINCIPLE.
parage (par-ij), n. [Law French] (13c) Hist. Equality of
condition, blood, or dignity; esp., the equal tenure in
land existing among the nobility who inherit from a
common ancestor. -Also termed paragium. Cf. DIS
PARAGARE (2).
paragium (p<3-ray-jee-<3m). [Law Latin] PARAGE.
parajudge. See UNITED STATES MAGISTRATE JUDGE.
paralegal, n. (1967) 1. A person who has some educa
tion in law and assists a lawyer in duties related to the
practice of law but who is not a licensed attorney.
Also termed legal assistant; legal analyst. 2. Canadian
law. A nonlawyer who is legally qualified through expe
rience or special training and is licensed to provide
limited legal services in certain fields . Paralegals may
assist in representing clients in both civil and criminal
matters. -Also termed (in sense 2) law clerk. para
legal, adj.
paralegalize, vb. Slang. To proofread, cite-check, and oth
erwise double-check the details in (a legal document).
parallel citation. See CITATION (3).
parallel imports. Goods bearing valid trademarks that
are manufactured abroad and imported into the United
States to compete with domestically manufactured
goods bearing the same valid trademarks. -Domestic
parties commonly complain that parallel imports
compete unfairly in the U.S. market. But C'.S. trade
mark law does not prohibit the sale of most parallel
imports. Also termed gray-market goods. See gray
market under MARKET.
parallel parenting. See PARENTING.
parallel research. Intellectual property. The coincident
but independent development of similar information
or ideas by more than one person. -Parallel research
may be offered to establish an independent-concep
tion defense. If more than one person independently
reaches the same result, each may protect the product
as a trade secret.
paramount title. See TITLE (2).
paraph (par-af), n. 1. Hist. A flourish that follows a sig
nature, intended as a safeguard against forgery. 2. Civil
law. A signature itself; esp., a notary public's signature
on a document, followed by the date, names of the
parties, and seal.
paraph (par-"f), vb. Civil law. To add a paraph to
<paraphed the contract>.
parapherna (par-,,-far-n,,), n. (Greek "things brought on
the side"]l. Roman law. Property of a wife not forming
part of her dowry. See DOS (1). 2. Scots law. A married
woman's personal property, such as clothing, jewelry,
and intimate possessions, which a husband did not
acquire by virtue of marriage. See JUS MARITI.
paraphernalia (par-,,-f3r-nay-lee-,,). (17c) Hist. Property
that a wife was allowed to keep, in addition to her
dowry, on the death ofher husband.
"[I]n one particular instance the wife may acquire a property
in some of her husband's goods: which shall remain to her
after his death and not go to the executors. These are
called her paraphernalia, which is a term borrowed from
the civil law. , . signifying something over and above her
dower." 2 William Blackstone, Commentaries on the Laws
ofEngland 435-36 (1765).
paraphernal property. See extradotal property under
PROPERTY.
Paraphrase ofTheophilus. See INSTITUTE (4).
parata executio (p"-ray-t,, ek-s,,-kyoo-shee-oh). [Law
Latin "a prepared diligence"] Scots law. A creditor's
completed diligence allowing the creditor to proceed
to obtain payment of a debt.
paratitla (par-,,-tIt-I,,). n. pl. [Law Latin "next to the
title"] Roman & civil law. :..Iotes or abstracts prefixed
to titles of law. giving a summary of their contents.
paratum habeo (p,,-ray-tam hay-bee-oh). [Law Latin "1
have him in readiness"] Hist. A sheriff's return of a
capias ad respondendum, signifying that the defendant
is ready to be brought to court.
paratus est verificare (p"-ray-t,,s est ver-,,-fi-kair-ee).
[Law Latin] He is ready to verify . This phrase formerly
concluded a verified pleading.
paramil (par-,,-vayl or par-,,-vayl). adj. [Law French
"at the bottom"] Hist. (Of a tenant) holding ofanother
tenant.
parcel, n. (ISc) 1. A small package or bundle. 2. A tract
ofland; esp . a continuous tract or plot ofland in one
possession, no part of which is separated from the rest
by intervening land in another's possession.
parcel, vb. (ISc) To divide and distribute (goods. land,
etc.) This verb is often used with out <the land is
parceled out in allotments> or, rarely, off<the father
arranged to have a 1O.474-acre tract of his farm parceled
off and retitled to his children as joint tenants>.
parcenary (pahr-sa-ner-ee). See COPARCENARY.
parcener (pahr-s"-n,,r). See COPARCENER.
parco fracto (pahr-koh frak-toh). See DE PARCO
FRACTO.
par delictum Cpahr di-lik-t"m). [Latin) Equal guilt; equal
wrong. pardon, n. (14c) The act or an instance of officially nul
lifying punishment or other legal consequences of a
crime. A pardon is usu. granted by the chief executive
of a government. The President has the sole power to
issue pardons for federal offenses, and state governors
have the power to issue pardons for state crimes.
Also termed executive pardon. See CLEMENCY. Cf. COM
MUTATION (2); REPRIEVE. [Cases: Pardon and Parole
C'::;)23.) pardon, vb.
"The term pardon is first found in early French law and
derives from the Late Latin perdonare ('to grant freely'),
suggesting a gift bestowed by the sovereign. It has thus
come to be associated with a somewhat personal conces
sion by a head of state to the perpetrator of an offense,
in mitigation or remission of the full punishment that he
has merited." Leslie Sebba, "Amnesty and Pardon," in 1
Encyclopedia ofCrime and Justice 59, 59 (Sanford H. Kadish
ed., 1983).
absolute pardon. A pardon that releases the wrong
doer from punishment and restores the offender's
civil rights without qualification. -Also termed full
pardon; unconditional pardon. [Cases: Pardon and
Parole ~23.1
conditional pardon. A pardon that does not become
effective until the wrongdoer satisfies a prerequisite
or that will be revoked upon the occurrence of some
specified act. [Cases: Pardon and Parole (''''::::>23.]
faultless pardon. A pardon granted because the act
for which the person was convicted was not a crime.
[Cases: Pardon and Parole
general pardon. See AMNESTY.
partialpardon. A pardon that exonerates the offender
from some but not all of the punishment or legal con
sequences of a crime. [Cases: Pardon and Parole
23.]
unconditional pardon. See absolute pardon.
pardon attorney. A Justice Department lawyer who con
siders applications for federal pardons and forwards
those ofpromising candidates for review by the Presi
dent.
parens binubus (par-enz bI-n[y]oo-bas). [Latin "twice
married parent") Roman law. A parent who has remar
ried.
parens patriae (par-enz pay-tree-ee orpa-tree-I). [Latin
"parent ofhis or her country"] (18c) 1. Roman law. The
emperor as the embodiment of the state. 2. The state
regarded as a sovereign; the state in its capacity as
provider of protection to those unable to care for them
selves <the attorney general acted as parens patriae in
the administrative hearing>. [Cases: States C='l.] 3. A
doctrine by which a government has standing to pros
ecute a lawsuit on behalfof a citizen, esp. on behalf of
someone who is under a legal disability to prosecute
the suit <parens patriae allowed the state to institute
proceedings>. _ The state ordinarily has no standing
to sue on behalf of its citizens, unless a separate, sover
eign interest will be served by the suit. Also termed
doctrine ofparens patriae. [Cases: Infants States
(::::::::190.]
1222 parent
parent. (15c) 1. The lawful father or mother of someone .
In ordinary usage, the term denotes more than respon
sibility for conception and birth. The term commonly
includes (1) either the natural father or the natural
mother of a child, (2) either the adoptive father or the
adoptive mother ofa child, (3) a child's putative blood
parent who has expressly acknowledged paternity, and
(4) an individual or agency whose status as guardian
has been established by judicial decree. In law, parental
status based on any criterion may be terminated by
judicial decree. In other words, a person ceases to be a
legal parent if that person's status as a parent has been
terminated in a legal proceeding. -Also termed legal
parent. [Cases: Parent and Child C=1.]
absent parent. See noncustodial parent.
adoptive parent. (1Sc) A parent by virtue of legal
adoption. See ADOPTION (1). [Cases: Adoption C=
4,20.]
biological parent. The woman who provides the egg or
the man who provides the sperm to form the zygote
that grows into an embryo. -Also termed genetic
parent. [Cases: Children Out-of-Wedlock C=1.]
birth parent. Either the biological father or the mother
who gives birth to a child. -Sometimes written
birthparent.
constructive parent. See equitable parent.
custodial parent. The parent awarded physical custody
of a child in a divorce. See PHYSICAL CUSTODY (2).
Cf. noncustodial parent. [Cases: Child Custody C=
209.]
defacto parent. An adult who (1) is not the child's legal
parent, (2) has, with consent of the child's legal parent,
resided with the child for a significant period, and
(3) has routinely performed a share ofthe caretaking
functions at least as great as that of the parent who
has been the child's primary caregiver without any
expectation ofcompensation for this care . Because
the status of de facto parent is subordinate to that of
legal parent, a person who expects to be afforded the
status of parent should, if possible, adopt the child.
The primary function of this conceptual status is to
provide courts with a means for maintaining a rela
tionship between a child and an adult who has func
tioned as a parent when that adult is prohibited from
legally adopting the child. The status is usu.limited to
a person who has assumed the role ofparent |
is prohibited from
legally adopting the child. The status is usu.limited to
a person who has assumed the role ofparent with the
knowledge and consent, either express or implied, of
the legal parent. But it may also arise when there is a
total failure or inability ofthe legal parent to perform
parental duties. Cf. equitable parent; psychological
parent.
Disneyland parent. A noncustodial parent who
indulges his or her child with gifts and good times
during visitation and leaves most or all disciplinary
responsibilities to the other parent; esp., a noncusto
dial parent who provides luxuries that the custodial
parent cannot afford but performs no disciplinary duties, in an effort to gain or retain the child's
affection. See LOLLIPOP SYNDROME.
domiciliary parent. A parent with whom a child lives.
[Cases: Child CustodyC=147.]
dual-residential parent. A parent who shares primary
residential responsibility for a child with the other
parent when each provides a residence that is substan
tially a primary residence. In many jurisdictions,
dual residence is referred to as joint physical custody.
See RESIDENTIAL RESPONSIBILITY; CUSTODY (2). Cf.
residential parent.
equitable parent. 1. A husband who, though not the
biological father, is treated by the court as the father
in an action for custody or visitation, usu. when the
husband (1) has treated the child as his own while
married to the child's mother, (2) is the only father
the child has ever known, and (3) seeks the rights of
fatherhood. 2. A mother or father, not by blood or
adoption, but by virtue of the close parent-like rela
tionship that exists between that person and a child.
The status of equitable parent is a legal fiction that
is used as an equitable remedy. Most commonly,
the status of equitable parent arises when a person,
living with the child and one of his or her legal or
natural parents, forms a close bond with the child and
assumes the duties and responsibilities ofa parent.
Also termed constructive parent. See adoption by
estoppel under ADOPTION. Cf. psychological parent;
de facto parent. [Cases: Children Out-of-Wedlock
C=14.]
foster parent. (l7c) An adult who, though without
blood ties or legal ties, cares for and rears a child, esp.
an orphaned or neglected child who might otherwise
be deprived of nurture, usu. under the auspices and
direction of an agency and for some compensation
or benefit. Foster parents sometimes give care and
support temporarily until a child is legally adopted by
others. See FOSTER CARE. Cf.foster child under CHILD.
[Cases: Infants C=226.]
genetic parent. See biological parent.
godparent. See GODPARENT.
intended parent. See intentional parent.
intentional parent. The person whose idea it is to have
and raise a child and who (1) enters into a surrogacy
contract with a surrogate mother, and (2) is the legal
parent ofthe child regardless ofany genetic link to the
child. -Also termed intended parent. See intended
child under CHILD.
noncustodial parent. In the child-custody laws ofsome
states, a parent without the primary custody rights of
a child; esp., the parent not awarded physical custody
of a child in a divorce . The noncustodial parent is
typically awarded visitation with the child. -Also
termed nonresidential parent; possessory conservator;
absent parent. See PHYSICAL CUSTODY (2). Cf. custo
dial parent. [Cases: Child Custody C=20-231.]
nonresidential parent. See noncustodial parent.
1223
parent by estoppel. A man who, though not a child's
legal father, is estopped from denying liability for
child support. This estoppel usu. arises when the
man (1) has lived with the child for at least two years,
(2) has believed in good faith that he was the child's
father, (3) has accepted parental responsibilities, and
(4) has entered into a coparenting agreement with
the child's mother and when the court finds that
recognition of the status of parent is in the child's
best interests. See ESTOPPEL. [Cases: Children Out
of-Wedlock
primary domiciliary parent. Jn a joint-custody
arrangement, the parent who exercises primary
physical custody. See joint custody under CUSTODY
(2). [Cases: Child Custody~147.]
psychological parent. A person who, on a continuing
and regular basis, provides for a child's emotional and
physical needs . The psychological parent may be
the biological parent, a foster parent, a guardian, a
common-law parent, or some other person unrelated
to the child.
residential parent. A parent who has primary residen
tial responsibility for a child and who is not a dual
residential parent. See RESIDENTIAL RESPONSIBILITY.
Cf. dual-residential parent. [Cases: Child Custody C-~
147,209.]
stepparent. (1840) The spouse ofone's mother or father
by a later marriage. [Cases: Child Custody C=>272;
Parent and Child C-~14.]
surrogate parent. (1972) 1. A person who carries out the
role of a parent by court appointment or the volun
tary assumption of parental responsibilities. [Cases:
Parent and Child ~15.] 2. See surrogate mother (2)
under MOTHER.
2. See parent corporation under CORPORATION.
parentage (pair-;m-tij or par-). (ISc) The state or condi
tion ofbeing a parent; kindred in the direct ascending
line. [Cases: Parent and Child C=> 1.]
parentage action. See PATER::-IITY SUIT.
parental access. See VISITATION (2).
parental-alienation syndrome. See PARENT-ALIENATION
SYNDROME.
parental-autonomy doctrine. The principle that a parent
has a fundamental right to raise his or her child and
to make all decisions regarding that child free from
governmental intervention, unless (1) the child's health
and welfare are jeopardized by the parent's decisions, or
(2) public health, welfare, safety, and order are threat
ened by the parent's decisions . The Supreme Court
first recognized the doctrine ofparental autonomy over
the family in Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct.
625 (1923). Also termed Jamily-autonomy doctrine.
Cf. PARENTAL-PRIVILEGE DOCTRINE. [Cases: Infants
154.1; Parent and Child C::: 1.]
parental consent. See CONSENT (1).
parental-consent statute. A statute that requires a minor
to obtain his or her parent's consent before receiving parental-liability statute
elective medical treatment, such as an abortion.
Without parental consent, a physician or other medical
professional commits a battery upon a child when
giving nonemergency medical treatment. To pass
constitutional muster, a parental-consent statute must
include a judicial-bypass provision. Planned Parent
hood ojSoutheastern Pa. v. Casey, 505 U.S. 833, 112
S. Ct. 2791 (1992). Also termed parental-consent
treatment statute. See JUDICIAL-BYPASS PROVISION. Cf.
PARENTAL-NOTIFICATION STATUTE; MATURE-MINOR
DOCTRINE. [Cases: Abortion and Birth Control (;::J
116.J
parental-consent treatment statute. See PARENTAL
CONSENT STATUTE.
parental consortium. See CONSORTIUM.
parental-discipline privilege. A parent's right to use
reasonable force or to impose reasonable punishment
on a child in a way that is necessary to contro!' train,
and educate. Several factors are used to determine
the reasonableness ofthe action, including whether the
actor is the parent; the child's age, sex, and physical and
mental state; the severity and foreseeable consequences
of the punishment; and the nature of the misconduct.
Cf. PARENTAL-PRIVII-EGE DOCTRINE. [Cases: Parent
and Child
parental functions. See PARENTING FUNCTIONS.
parent-alienation syndrome. A situation in which one
parent has manipulated a child to fear or hate the other
parent; a condition resulting from a parent's actions
that are designed to poison a child's relationship with
the other parent. Some mental-health specialists
deny that this phenomenon amounts to a "psychologi
cal syndrome." -Also termed parental-alienation
syndrome. [Cases: Child CustodyC=>S7, 569.]
parental immunity. See IMMUNITY (2).
parental-immunity doctrine. See parental immunity (1)
under IMMUNITY (2).
parental kidnapping. See KIDNAPPING.
Parental Kidnapping Prevention Act. A federal law,
enacted in 1980, proViding a penalty for child-kidnap
ping by a noncustodial parent and requiring states to
recognize and enforce a child-custody order rendered
bv a court ofanother state. 28 USCA 1738A; 42 USCA
654, 655, 663. -Abbr. PKPA. Cf. UNIFORM CHILD
CUSTODY JURISDICTION ACT; FEDERAL KIDNAPPING
ACT. [Cases: Child Custody ~-;::723, 738.]
parental-liability statute. (1963) A law obliging parents
to pay damages for torts (esp. intentional ones) com
mitted bv their minor children . All states have these
laws, but most limit the parents' monetary liability to
about $3,000 per tort. Parents can also be held crimi
nally liable for the acts oftheir children. One group of
laws is aimed at contributing to the delinquency and
endangering the welfare ofa minor. More recently, the
laws have been directed at improper supervision and
failure to supervise. The first law aimed at punishing
parents for the acts of their children was enacted in
1224 parental-notification statute
Colorado in 1903. Bv 1961 all buttwo states had enacted
similar laws. At le~st five states make it a felony for
a parent to intentionally, knowingly, and recklessly
provide a firearm to a child, or permit the child to
handle a firearm, when the parent is aware ofa substan
tial risk that the child will use the weapon to commit a
crime. Also termed parental-responsibility statute;
failure-to-supervise statute. Cf. PARENTAL-RESPO:-.fSI
BILITY STATUTE. [Cases: Parent and Child (';:::;> 13.5.]
parental-notification statute. A law that requires a phy
sician to notify a minor's parent ofher intention to have
an abortion. Cf. PARENTAL-CONSENT STATUTE. [Cases:
Abortion and Birth Control ~117.]
parental-preference doctrine. (1974) The principle that
custody ofa minor child should ordinarily be granted
to a fit parent rather than another person. The prefer
ence can be rebutted by proofthat the child's best inter
ests are to the contrary. -Also termed parental-rights
doctrine; parental-superior-rights doctrine; parental
presumption rule. Cf. BEST INTERESTS OF THE CHILD.
[Cases: Child Custody (';:::;>42,460.]
parental-presumption role. See PARENTAL-PREFERENCE
DOCTRINE.
parental-privilege doctrine. The parent's right to dis
cipline his or her child reasonably, to use reasonable
child-rearing practices free of governmental interfer
ence, and to exercise decision-making authority over
the child. Cf. PARENTAL-AUTONOMY DOCTRINE; PAREN
TAL-DISCIPLINE PRIVILEGE. [Cases: Parent and Child
parental-responsibility statute. (1956) 1. A law imposing
criminal sanctions (such as fines) on parents whose
minor children commit crimes as a result ofthe parents'
failure to exercise sufficient control over them. -Also
termed control-your-kid law. 2. PARE:-.fTAL-LIABILITY
STATUTE. [Cases: Parent and Child (';:::;> 13.5(2,4).]
parental rights. (18c) A parent's rights to make all deci
sions concerning his or her child, including the right
to determine the child's care and custody, the right
to educate and discipline the child, and the right to
control the child's earnings and property. See TERMI
NATION OF PARENTAL RIGHTS. [Cases: Parent and Child
parental-rights doctrine. See PARENTAL-PREFERENCE
DOCTRINE.
parental-superior-rights doctrine. See PAREKTAL-PREF
ERENCE DOCTRINE.
parent application. See PATENT APPLICATION.
parent by estoppel. See PARENT.
parent-child immunity. Seeparental immunity (1) under
IMMUNITY (2).
parent-child relationship. See RELATIONSHIP.
parent committee. See COMMITTEE.
parent company. See parent corporation under CORPO
RATION.
parent corporation. See CORPORATION. parentela (par-an-tee-la), n. pl. [Law Latin] (15c) Persons
who can trace descent from a common ancestor.
parentelic method (par-an-tee-lik or -tel-ik). (1935) A
scheme ofcomputation used to determine the paternal
or maternal collaterals entitled to inherit when a child
less intestate decedent is not survived by parents or
their issue. Under this method, the estate passes to
grandparents and their issue; ifthere are none, to great
grandparents and their issue; and so on down each line
until an heir is found. The Uniform Probate Code uses
a limited parentelic system |
; and so on down each line
until an heir is found. The Uniform Probate Code uses
a limited parentelic system: it looks first to the grand
parents and their issue, but if no heir is found in that
line, the search ends and the estate escheats to the state.
See DEGREE (5). Cf. GRADUAL METHOD.
parent filing date. See effective filing date under DATE.
parenticide (pa-ren-t<l-sId). (17c) 1. The act ofmurder
ing one's parent. 2. A person who murders his or her
parent. parenticidal, adj.
parenting, n. 1. Performance ofthe functions ofa parent.
2. One or more methods ofchild-rearing.
parallel parenting. A situation in which divorced
parents, although disagreeing on some aspects of
child-rearing, allow each other to handle diScipline
and daily regimens in their own individual ways
when with the child.
shared parenting. Cooperation between divorced
parents in child-rearing. [Cases: Child Custody
120-155.]
parenting agreement. See PARENTING PLAN.
parenting function. A task that serves the direct or day
to-day needs ofa child or ofa child's family . Parent
ing functions include providing necessaries, making
decisions about the child's welfare, and maintaining the
family residence. Cf. CARETAKING FUNCTIONS.
parenting plan. A plan that allocates custodial respon
sibility and decision-making authority for what serves
the child's best interests and that provides a mechanism
for resolving any later disputes between parents. -Also
termed parenting agreement. See CUSTODY (2); CUSTO
DIAL RESPONSIBILITY; DECISIO:-.f-MAKING RESPONSIBIL
ITY. [Cases: Child Custody (';:::;>209.]
parenting time. See VISITATION.
parent-subsidiaryfreezeout. See FREEZEOUT.
pares curiae (par-eez kyoor-ee-ee). [Law Latin "peers of
the court"] Hist. A lord's tenants who sat in judgment
ofa fellow tenant.
pares curtis (par-eez k::Jr-tis). [Law Latin] Hist. The peers
ofthe court. -Also termed pares curiae.
'The lord was, in early times, the legislator and judge over
all his feudatories: and therefore the vassals of the inferior
lords were bound by their fealty to attend their domestic
courts baron, (which were instituted in every manor or
barony. for doing speedy and effectual justice to all the
tenants) in order as well to answer such complaints as
might be alleged against themselves, as to form ajury or
homage for the trial of their fellow-tenants; and upon this
account, in all the feodal institutions both here and on
the continent, they are distinguished by the appellation
1225
of the peers of the court; pares curtis, or pares curiae." 2
William Blackstone, Commentaries on the Laws ofEng/and
54 (1766).
pares regni (par-eez reg-nIl. [Law Latin] Hist. Peers of
the realm.
Pareto optimality (pd-ray-toh or pa-ret-oh), n. An
economic situation in which no person can be made
better off without making someone else worse off .
The term derives from the work of Vilfredo Pareto
(l848-1923), an Italian economist and sociologist.
Pareto-optimal, adj.
Pareto superiority, n. An economic situation in which
an exchange can be made that benefits someone and
injures no one . When such an exchange can no longer
be made, the situation becomes one ofPareto optimal
ity. Pareto-superior, adj.
pari causa, in. See IN PARI CAUSA.
pari delicto, in. See IN PARI DELICTO.
paries communis (pair-ee-eez ka-myoo-nis). [Latin] A
common wall; a party wall.
paries oneri ferenda, uti nunc est, ita sit (pair-ee-eez
on-dr-I fa-ren-doh, yoo-tl n<lngk est, I-td sit). [Latini
Roman law. The wall for bearing the burden, as it now
is, so let it be . The phrase constituted the urban ser
vitude oneris ferendi. See ONERIS FERENDI; JUS ONERIS
FERENDI; servitus oneris ferendi under SERVITUS.
pari materia, in. See IN PARI MATERIA.
parimutuel betting (par-i-myoo-choo-al). A system of
gambling in which bets placed on a race are pooled and
then paid (less a management fee and taxes) to those
holding winning tickets. [Cases: Gaming C=6.]
pari passu (pahr-ee pahs-oo or pair-I, pair-ee, or par-ee
pas-[yJoo). [Latin by equal step"] Proportionally; at an
equal pace; without preference <creditors of a bankrupt
estate will receive distributions pari passu>.
pari ratione (pair-I ray-shee-oh-nee or rash-ee-oh-nee).
[Latin] Roman & civil law. For the like reason; by like
mode of reasoning.
Paris Additional Act. Copyright. An 1896 amendment to
the Berne Convention extending copyright protection
to photographs as derivative works.
Paris Convention. See PARIS CONVENTION FOR THE PRO
TECTION OF INDUSTRIAL PROPERTY.
Paris Convention for the Protection of Industrial
Property. A treaty designed to unify and streamline
patent prosecutions and trademark applications among
the signatories. The Convention eased the harsh
effects of the first-to-file priority rule by allowing an
applicant in any member country one year in which to
apply in other member countries while maintaining
the application's original priority date. It also banned
patent-protection discrimination against residents
of other member nations. Now administered bv the
World Intellectual Property Organization, an agency
ofthe United Nations, the Convention was first signed
in 1883, revised most recently in 1967, and amended parliament
in 1970. -Also termed Paris Industrial Property Con
vention. -Often shortened to Paris Convention.
"The 1883 Paris Convention for the Protection of Indus
trial Property is the cornerstone of the international patent
granting system_ It represents the first efforts of several
countries to adopt a common approach to industrial
property. The fundamental principles of 'right of priority'
and 'national treatment' set out by the Convention have
been of capital importance to the internationalization of
intellectual property rights over the last century." Marta
Pertegas Sender, Cross-Border Enforcement of Patent Rights
4 (2002).
parish. (14c) 1. In Louisiana, a governmental subdivi
sion analogous to a county in other U.S. states. [Cases:
Counties C=1.] 2. Eccles. law. A division ofa town or
district, subject to the ministry of one pastor.
district parish. Eccles. law. A geographical division of
an English parish made by the Crown's commission
ers for the building of new churches for worship, cel
ebration ofmarriages, christenings, and burials.
parish court. See county court under COURT.
Paris Industrial Property Convention. See PARIS
CONVENTIO:-.l FOR THE PROTECTION OF INDUSTRIAL
PROPERTY.
par item. See ITEM.
parium judicium (pairee-;lIn joo-dish-ee-am). [Law
Latin] The judgment of peers; trial by a jury of one's
peers or equals.
Parker doctrine. See STATE-ACTION DOCTRINE.
parking. (1983) 1. The sale of securities subject to an
agreement that the seller will buy them back at a later
time for a similar price . Parking is illegal if done to
circumvent securities regulations or tax laws. It is often
a method of evading the net-capital requirements of
the National Association of Securities Dealers (NASD),
which requires a brokerage firm to discount the value
of any stock it holds in its own account when it files
its monthly report about its net-capital condition. To
reach technical compliance with the NASD's net-cap
ital requirements, a brokerage firm "sells" stock from
its own account to a customer at market price, thereby
avoiding the discount for reporting purposes. Having
filed its report, it can then "buy" the shares back from
the customer, usu. at the same price at which it "sold"
the stock, plus interest. [Cases: Securities Regulation
C=40.l4.] 2. The placement of assets in a safe, short
term investment while other investment opportuni
ties are being considered. -Also termed (in sense 1)
stock-parking.
parking-lot rule. The principle that workers'-com
pensation insurance covers the injuries suffered by
an employee on the employer's premises when the
employee is arriving at or leaving work. Also termed
premises rule. [Cases: Workers' Compensation
750.J
parliament. (l2c) The supreme legislative body of some
nations; esp. (cap.), in the United Kingdom, the national
legislature consisting of the monarch, the House of
Lords, and the House of Commons.
1226 parliamentarian
parliamentarian. (17c) Parliamentary law. A consultant
trained in parliamentary law who advises the chair and
others on matters ofparliamentary law and procedure.
The parliamentarian, who is often a professional, only
advises and never "rules" on procedural issues. Seepar
liamentary law under PARLIAMENTARY (2); parliamen
tary procedure under PARLIAMENTARY (2).
''The parliamentarian is a consultant, commonly a pro
fessional, who advises the president and other officers,
committees, and members on matters of parliamentary
procedure. The parliamentarian's role during a meeting is
purely an advisory and consultative one -since parliamen
tary law gives to the chair alone the power to rule on ques
tions of order or to answer parliamentary inquiries....
After the parliamentarian has expressed an opinion on a
point, the chair has the duty to make the final ruling and,
in doing so, has the right to follow the advice of the par
liamentarian or to disregard it." Henry M. Robert, Robert's
Rules of Order Newly Revised 47, at 449-50 (10th ed.
2002).
parliamentary, adj. (17c) 1. Of or relating to a parlia
ment. 2. Parliamentary law. Of or relating to rules of
order for the conduct ofbusiness in deliberative assem
blies.
parliamentary authority. A parliamentary manual that
an organization has adopted for its deliberations, and
whose provisions govern the organization in every case
to which they apply, as long as they are consistent with
law and with the organization's governing documents.
See PARLIAMENTARY MANUAL.
parliamentary diplomacy. See DIPLOMACY.
parliamentary divorce. See legislative divorce under
DIVORCE.
parliamentary inquiry. See INQUIRY.
parliamentary intent. See LEGISLATIVE INTENT.
parliamentary law. The body of rules and precedents
governing the proceedings of legislative bodies and
other deliberative assemblies. -Also termed parlia
mentary procedure. [Cases: Parliamentary Law C=1.]
"Thomas Jefferson speaks of 'the Parliamentary branch
of the law.' From this country's beginning, it has been an
underlying assumption of our culture that what has been
authoritatively established as parliamentary law is law -in
the sense of being binding within all assemblies except as
they may adopt special rules varying from the general par
liamentary law." Henry M. Robert, Robert's Rules ofOrder
Newly Revised xxvi (10th ed. 2000).
"Parliamentary law differs somewhat from the other
branches of common law in that it is based in an impor
tant measure upon precedents of legislative and admin
istrative bodies. Particularly in America, however, where
the courts have the power to make final decisions on all
constitutional questions, the law has been evolving upon
the basis of court deCisions, and a considerable volume
of judicial precedents has accumulated. The application
of parliamentary rules to new situations is subject to the
same rules of reasoning as the application of established
common law rules to new legal situations." National Confer
ence of State Legislatures, Mason's Manual of Legislative
Procedure 44, at 40-41 (2000).
common parliamentary law. 1. See general parliamen
tary law. 2. The common law as applied to parliamen
tary law; parliamentary law as it is found in judicial
decisions. general parliamentary law. The basic principles and
practices ofparliamentary law, as commonly under
stood among a meeting's members based on their
experience in other deliberative assemblies, that
apply in the absence of adopted rules of order. A
parliamentary manual is evidence ofthe general par
liamentary law. -Also termed common parliamen
tary law.
"A deliberative assembly that has not adopted any rules is
commonly understood to hold itself bound by the rules and
customs of the general parliamentary law -or common
parliamentary law . .. -to the extent that there is agree
ment in the meeting body as to what these rules and prac
tices are." Henry M. Robert, Robert's Rules ofOrder Newly
Revised 1, at 3 (10th ed. 2000).
parliamentary manual. A code or reference, usu. a com
mercially published book, that contains parliamentary
rules and is offered for adoption by organizations as
their parliamentary authority . The leading parliamen
tary manuals in print in the United States are Robert's
Rules ofOrder Newly Revised for nonlegislative bodies,
and Mason's Manual ofLegislative Procedure for state
legislatures. Cf. PARLIAMENTARY AUTHORITY.
parliamentary motion. See MOTION (2).
parliamentary practice. See PARLIAMENTARY PROCE
DURE.
parliamentary privilege. See PRIVILEGE (1).
parliamentary procedure. 1. PARLIAMENTARY LAW. 2.
Parliamentary law as applied in a particular organiza
tion, including the parliamentary authority and other
rules that the organization adopts. -Also termed par
liamentary practice.
parliamentary will. See WILL |
authority and other
rules that the organization adopts. -Also termed par
liamentary practice.
parliamentary will. See WILL.
Parliament House. Scots law. The building in Edinburgh
that is the site ofthe Court ofSession, the High Court
ofJusticiary, the attendant offices ofboth courts, and
the library ofthe Faculty ofAdvocates.
parliamentum insanum. See MAD PARLIAMENT.
parody. (l6c) Intellectual property. A transformative
use of a well-known work for purposes of satirizing,
ridiculing, critiquing, or commenting on the original
work, as opposed to merely alluding to the original to
draw attention to the later work . In constitutional
law, a parody is protected as free speech. In copyright
law, a work must meet the definition of a parody and
be a fair use ofthe copyrighted material, or else it may
constitute infringement. See FAIR USE. [Cases: Copy
rights and Intellectual Property C=S3.2.]
''Trademark parodies, even when offensive, do convey a
message. The message may be simply that business and
product images need not always be taken too seriously;
a trademark parody reminds us that we are free to laugh
at the images and associations linked with the mark." L.L.
Bean, Inc. v. Drake Publishers, Inc., 811 F.2d 26, 34 (1 st Cir.
1987) (per Bownes, j.).
"We do not, of course, suggest that a parody may not harm
the market at all, but when a parody, like a scathing theater
review, kills demand for the original, it does not produce a
harm cognizable under the Copyright Act. Because 'parody
may quite legitimately aim at garroting the original,
destroying it commercially as well as artistically,' the role
1227
of the courts is to distinguish between 'biting criticism [that
merely] suppresses demand [and] copyright infringementL
which] usurps it.''' Campbell v. Acuff-Rose Music, Inc. 510
U.S. 569, 591, 1145.0.1164,1178 (1994)(Souter,J.) (cita
tions omitted).
par of exchange. The recognized standard value of
one country's currency expressed in terms of that of
another.
parol (p<l-rohl or parOdI), adj. (l6c) 1. Oral; unwritten
<parol evidence>. [Cases: Evidence P397.J 2. Not
under seal <parol contract>. [Cases: Contracts
239.J
parol (pa-rohl or par-al), n. (lSc) 1. An oral statement or
declaration. 2. Hist. 1he oral pleadings in a case.
"Anciently pleadings were conducted in court orally, and
the whole pleadings were called the parol: but for centuries
the pleadings in civil actions have been required to be in
writing." Edwin E. Bryant, The Law of Pleading Under the
Codes of Civil Procedure 178-79 (2d ed. 1899).
parol agreement. See parol contract (1) under
CONTRACT.
parol arrest. See ARREST.
parol contract. See CONTRACT.
parol demurrer. See DEMURRER.
parole (pa-rohl), n. (l7c) The conditional release of a
prisoner from imprisonment before the full sentence
has been served . Although not available under some
sentences, parole is usu. granted for good behavior on
the condition that the parolee regularly report to a
supervising officer for a specified period. Cf. PARDON;
PROBATION (1). [Cases: Pardon and Parole (;:::=>41.J
parole, vb.
"The essence of parole is release from prison, before
completion of the sentence, on condition that the prisoner
abide by certain rules during the balance of the sentence.
Parole is not freedom." 59 Am. Jur. 2d Pardon and Parole
6 (1987).
bench parole. See bench probation under PROBATION.
juvenile parole. The conditional release of a juvenile
offender from confinement. -Also termed aftercare.
[Cases: Infants C"':;)281.]
parole board. (l898) A governmental body that decides
whether prisoners may be released from prison before
completing their sentences. -Also termed board of
parole; parole commission. [Cases: Pardon and Parole
P55.]
parolee Cpa-roh-Iee). (1903) A prisoner who is released
on parole.
parole revocation. (1930) The administrative or judicial
act of returning a parolee to prison because of the
parolee's failure to abide by the conditions of parole
(as by committing a new offense). [Cases: Pardon and
Parole C"':;)69.]
parol evidence. See EVIDENCE.
parol-evidence rnle. (1893) Contracts. The common
law principle that a writing intended by the parties to
be a final embodiment of their agreement cannot be
modified by evidence of earlier or contemporaneous pars ejusdem negotii
agreements that might add to, vary, or contradict the
writing . 'Ibis rule usu. operates to prevent a party
from introducing extrinsic evidence of negotiations
that occurred before or while the agreement was being
reduced to its final written form. See INTEGRATION (2);
MERGER (2). Cf. FOUR-CORNERS RULE. [Cases: Evidence
C"':;)397.j
"The basic principle is often called the 'parol evidence rule',
and according to this rule evidence is not admissible to
contradict or qualify a complete written contract. The rule
is usually stated in the form of a rule of evidence, but it is
probably best regarded as a rule of substantive law. The
question is not really whether evidence can be admitted
which might vary the written document, but whether, if the
evidence is admitted, itwill have the legal effect of varying
the document." P.S. Atiyah, An Introduction to the Law of
Contract 161-62 (3d ed. 1981).
'The parol evidence rule assumes that the formal writing
reflects the parties' minds at a point of maximum resolu
tion and, hence, that duties and restrictions that do not
appear in the written document, even though apparently
accepted at an earlier stage, were not intended by the
parties to survive. In addition, and quite apart from the
surVival of matters discarded in the course of negotiations,
there is the obvious danger of outright fraud." Marvin A.
Chirelstein, Concepts and Case Analysis in the Law ofCon
tracts 82-83 (1990).
parol lease. See LEASE.
parols de ley (pa-rohlz dd lay). [Law French] Words of
law; technical words.
parol trust. See oral trust (1) under TRUST.
Parratt-Hudson doctrine. (1986) The principle that
a state actor's random, unauthorized deprivation of
someone's property does not amount to a due-process
violation if the state provides an adequate postdepri
vat ion remedy. Parratt v. Taylor, 451 U.S. 527, 101 S.Ct.
1908 (1984); Hudson v. Palmer, 468 U.S. 517, 104 S.Ct.
3194 (1984). [Cases: Constitutional LawC=>3912.]
parricide (par-<l-sId), n. (I6c) 1. The act ofkilling a close
relative, esp. a parent. 2. One who kills such a relative.
Cf. PATRICIDE. parricidal, adj.
parricidium (par-a-sid-ee-<)m), n. [Latin] Roman law.
1. The murder of a near relative, esp. a parent. 2.
Perhaps in ancient law, the murder of any free citizen.
This ancient, broad sense ofparricidium gave way
in pre-]mperiallaw to homicidium (homicide), which
extended to the killing of a slave.
pars (pahrz). [Latin] Hist. A party to an action.
pars contractus (pahrz kan-trak-tas). [Law Latin] Hist.
Part ofthe contract.
"Verbal consensual contracts are binding upon the con
tracting parties immediately upon their consents being
interchanged, and neither of them can afterwards resile
from the transaction .... But if it be agreed that their
contract shall be reduced to writing, such agreement being
pars contractus, the contract is not finally entered into,
nor does it become binding, until the writing has been
executed." John Trayner, Trayner's Latin Maxims 436 (4th
ed. 1894).
pars ejusdem negotii (pahrz ee-jas-d<lm ni-goh-shee
I). [Latin] Hist. Part of the same transaction . The
phrase refers, for example, to an obligation attached to
1228 pars enitia
a condition, both ofwhich must be considered together
to constitute one transaction.
pars enitia (pahrz i-ni-shee-a). [Law Latin "oldest's
part"] Hist. An oldest child's portion oflands divided
by lot.
pars fundi (pahrz fan-dI). [Latin] Hist. Part of the
ground.
pars judicis (pahrz joo-di-sis). [Latin] Hist. The part
of the judge. The phrase par judicis referred to the
judge's obligation to perform the duties ofthe office.
parson. See RECTOR (1).
pars rationabilis (pahrz rah-shee-ohn-ay-bil-is) See
YORK, CUSTOM OF.
pars rea (pahrz ree-a). A party defendant.
pars viscerum matris (pahrz vis-ar-am may-tris). [Latin]
Hist. Scots law. Part ofthe mother's body . The phrase
appeared in reference to a fetus.
part and pertinent. Scots law. See APPURTENANT.
parte inaudita (pahr-tee in-aw-dy-ta or in-aw-di-ta).
[Latin "one side being unheard"] Of or relating to
action taken ex parte.
parte non comparente (pahr-tee non kom-pa-ren-tee).
Hist. The party not having appeared . In civil cases,
a party's failure to appear usu. resulted in a default
judgment against the defendant. But in criminal cases,
the accused's failure to appear raised no presumption
of guilt; still, the offender was cited for contempt and
made an outlaw. See OUTLAW.
partes beneficii (pahr-teez ben-a-fish-ee-I). [Law Latin]
Hist. Parts of a benefice.
partes finis nihil habuerunt (pahr-teez fI-nis m-hil hab
yoo-eer-ant). [Law Latin "the parties to the fine had
nothing"] Hist. A plea to set aside a conveyance ofland
on grounds that the transferor did not have a sufficient
ownership interest in the property to alienate it.
"Yet where a stranger . .. officiously interferes in an estate
which in nowise belongs to him, his fine is of no effect; and
may at any time be set aside ... by pleading that 'partes
finis nihil habuerunt.'" 2 William Blackstone, Commentaries
on the Laws ofEngland 356-57 (1765).
partes soli (pahr-teez soh-h). [Latin] Hist. Parts of the
soil.
partial account. See ACCOUNT.
partial assignment. See ASSIGNMENT (2).
partial average. See particular average under
AVERAGE.
partial-birth abortion. See ABORTION.
partial breach. See BREACH OF CONTRACT.
partial defense. See DEFENSE (1).
partial dependent. See DEPENDENT.
partial disability. See DISABILITY (2).
partial emancipation. See EMANCIPATION.
partial eviction. See EVICTION.
partial evidence. See EVIDENCE. partial failure of consideration. See FAILURE OF CON
SIDERATION.
partial guardian. See GUARDIAN.
partial insanity. See diminished capacity under CAPA
CITY (3).
partial integration. See INTEGRATION (2).
partial interdiction. See INTERDICTION (3).
partial intestate. See INTESTATE.
partial law. See LAW.
partial limitation. Insurance. A policy provision in
which the insurer agrees to pay a total loss ifthe actual
loss exceeds a specified amount.
partial liquidation. See LIQUIDATION.
partial loss. See LOSS.
partially disclosed principal. See PRINCIPAL (1).
partially integrated contract. See INTEGRATED
CONTRACT.
partial pardon. See PARDON.
partial release. See RELEASE.
partial-release clause. See CLAUSE.
partial responsibility. See diminished capacity under
CAPACITY (3).
partial summary judgment. See SUMMARY JUDGMENT.
partial truce. See special truce under TRUCE.
partial verdict. See VERDICT.
partial zoning. See ZONING.
partiarius (pahr-shee-air-ee-as), n. & adj. [Latin] Roman
law. 1. A legatee entitled to a portion ofan inheritance
along with the appointed heirs. 2. A tenant who is
bound to hand over a portion of the crop in lieu of
rent.
particeps (pahr-ta-seps), n. [Latin] 1. A participant. 2.
A part owner.
particeps criminis (pahr-ta-seps krim-a-nis), n. [Latin
"partner in crime"] (17c) 1. An accomplice or acces
sory. See ACCESSORY. PI. participes criminis (pahr-tis
a-peez). [Cases: Criminal Law ~59,68, 74.]
''The courts ofjustice will allow the objection that the con
sideration ofthe contract was immoral or illegal to be made
even by the gUilty party to the contract, for the allowance
is not for the sake of the party who raises the objection,
but is grounded on general principles of policy. A parti
ceps criminis has been held to be entitled, in equity, on his
|
is grounded on general principles of policy. A parti
ceps criminis has been held to be entitled, in equity, on his
own application to relief against his own contract, when
the contract was illegal, or against the policy of the law,
and relief became necessary to prevent injury to others." 2
James Kent, Commentaries on American Law *467 (George
Comstock ed., 11th ed. 1866).
"Even in felonies but little practical importance now
attaches to the distinctions between the first three of
these four classes of 'accomplices' ~a term which the law
applies to all the participes criminis, whatever their degree
of 'complicity' in the offence, though popular use gener
ally limits it to those who take only a minor part. For the
maximum punishment prescribed for any given crime is
the same in the case of all three classes." J.w. Cecil Turner,
Kenny's Outlines ofCriminal Law 90 (16th ed. 1952).
1229
2. The doctrine that one participant in an unlawful
activity cannot recover in a civil action against another
participant in the activity. This is a civil doctrine
only, having nothing to do with criminal responsibil
ity. Cf I~ PARI DELICTO DOCTRINE. [Cases: Contracts
(;::;13S.]
particeps fraudis (pahr-td-seps fraw-dis). [Latin "an
accomplice in the fraud"] Roman law. One who par
ticipates in a fraud, esp. by helping to deceive a debtor's
creditors. -Also termed conscius fraudis.
participating bond. See BOND (3).
participating insurance. See INSURANCE.
participating policy. See INSURANCE POLICY.
participating preferred stock. See STOCK.
participation, n. (l4c) 1. The act oftaking part in some
thing, such as a partnership, a crime, or a trial. 2. lhe
right of an employee to receive part of a business's
profits; profit-sharing. [Cases: Labor and Employment
(;::; 17S.] See JOINT PARTICIPATION. -participate,
vb.
participation loan. See LOAN.
participation mortgage. See MORTGAGE.
participation stock. See STOCK.
particular average. See AVERAGE.
particular average loss. See LOSS.
particular custom. See local custom under CUSTOM.
particular damages. See special damages under
DAMAGES.
particular estate. See ESTATE (1).
particular jurisprudence. See JURISPRUDENCE.
particular legacy. See LEGACY.
particular lien. See LIEN.
particular malice. See MALICE.
particular non est factum. See special non est factum
under NON EST FACTUM.
particular partnership. See PARTNERSHIP.
particular power. See special power under POWER (3).
particular recital. See RECITAL.
particulars, bill of. See BILL OF PARTICULARS.
particulars ofsale. (l8c) A document that describes the
various features of a thing (such as a house) that is for
sale.
particular successor. See SUCCESSOR.
particular tenant. See TE~ANT.
particular title. See TITLE (2).
partitio (pahr-tish-ee-oh), n. (Latin] Roman law.
Division; partition.
partitio legata (pahr-tish-ee-oh la-gay-td). [Latin] A
directive from a testator to an heir to divide the inher
itance and deliver a designated portion to a named
legatee; a testamentary partition. partner
partition, n. (15c) 1. Something that separates one part
of a space from another. 2. The act of dividing; esp., the
division of real property held jointly or in common by
two or more persons into individually owned inter
ests. -Also termed partition in kind. [Cases: Common
Lands Partition (;::; 1-10.]
definitive partition. A partition that is irrevocable.
partition ofsuccession. Louisiana law. The division of
an estate among an intestate's heirs. See La. Civ. Code
art. 1293. [Cases: Descent and Distribution 109.]
provisional partition. A temporary partition, often
made before the remainder of the property can be
divided.
3. Oil & gas. The division of an undivided mineral
interest by voluntary agreement or judicial action.
[Cases: Partition (;::;4, 12(1).] -partition, vb.
partible, adj.
partition in kind. See PARTITION (2).
partner. (13c) l. One who shares or takes part with
another, esp. in a venture with shared benefits and
shared risks; an associate or colleague <partners in
crime>. 2. One of two or more persons who jointly
own and carryon a business for profit <the firm and
its partners were sued for malpractice>. See PARTNER
SHIP. [Cases: Partnership 0=::; 1.1 3. One oftwo persons
who are married or who live together; a spouse or com
panion <my partner in life>. [Cases: Husband and Wife
(;::; 1; Marriage
dormant partner. See silent partner.
general partner. (1804) A partner who ordinarily takes
part in the daily operations of the business, shares in
the profits and losses, and is personally responsible
for the partnership's debts and other liabilities.
Also termed full partner. [Cases: Partnership
353,366.]
junior partner. (lSc) A partner whose participation
is limited with respect to both profits and manage
ment.
limited partner. (lS22) A partner who receives profits
from the business but does not take part in managing
the business and is not liable for any amount greater
than his or her original investment. -Also termed
special partner; (in civil law) partner in commendam.
See limited partnership under PARTNERSHIP. [Cases:
Partnership (;::;353,366,371.]
liquidating partner. (1825) The partner appointed
to settle the accounts, collect the assets, adjust the
claims, and pay the debts of a dissolving or insolvent
firm. [Cases: Partnership (;::;2S0.]
name partner. (1945) A partner whose name appears
in the name ofthe partnership <Mr. Tibbs is a name
partner in the accounting firm ofGibbs & Tibbs>.
Also termed named partner; title member.
nominal partner. (18c) A person who is held out as a
partner in a firm or business but who has no actual
interest in the partnership. Also termed ostensible
partner; partner EJyestoppel.
partnership 1230
ostensible partner. See nominal partner.
partner by estoppel. See nominal partner.
partner in commendam (in b-men-ddm). See limited
partner.
quasi-partner. (1809) A person who joins others in an
enterprise that appears to be, but is not, a partnership.
A joint venturer, for example, is a quasi-partner.
secret partner. (18c) A partner whose connection with
the firm is concealed from the public. -Also termed
sleeping partner.
senior partner. (18c) A high-ranking partner, as in a
law firm.
silent partner. (18c) A partner who shares in the profits
but who has no active voice in management of the
firm and whose existence is often not publicly dis
closed. Also termed dormant partner. [Cases: Part
nership
"It is worth emphasizing that control does not necessar
ily mean active involvement. One of the most interesting
figures in partnership law. in fact, is the 'silent' partner
typically a person who has invested in a business in return
for a profit share, and who reserves the right to, and to
some extent may in fact, participate in routine manage
ment decisions, may participate in no decisions at all,
and may even be unaware of what is happening in the
business for long periods of time. The fact ofthe person's
financial interest in the partnership may be a secret from
everyone except the other partners (indeed, such secrecy
may be vital). Such a person is nonetheless a partner like
any other for purposes, among other things, of personal
liability for the debts of the partnership. The law simply
does not distinguish between active and passive partners." ,
William A. Klein &John C. CoffeeJr., Business Organization
and Finance 64 (2002).
sleeping partner. See secret partner.
special partner. See limited partner.
surviving partner. (17c) The partner who, upon the
partnership's dissolution because of another part
ner's death, serves as a trustee to administer the firm's
remaining affairs. [Cases: Partnership C:=>280.]
partnership. (16c) A voluntary association of two or
more persons who jointly own and carryon a business
for profit . Under the Uniform Partnership Act, a
partnership is presumed to exist if the persons agree
to share proportionally the business's profits or losses.
Cf. JOINT VENTURE; STRATEGIC ALLIANCE. [Cases:
Partnership
collapsible partnership. (1962) Tax. A partnership
formed by partners who intend to dissolve it before
they realize any income . Any partner's gain result
ing from unrealized receivables or inventory that
has increased substantially in value will be treated
by the IRS as ordinary income rather than as capital
gain. IRC (26 USCA) 751. Cf. collapsible corpora
tion under CORPORATION. [Cases: Internal Revenue
C:=>3931,3935.]
commercial partnership. See trading partnership.
family partnership. (1902) A business partnership
in which the partners are related. IRC (26 USCA)
704(e). In this phrase, the term family includes a person's spouse, ancestors, lineal descendants,
siblings, and any trusts established primarily for the
benefit of those persons. See FAMILY-PARTNERSHIP
RULES.
general partnership. (18c) A partnership in which all
partners participate fully in running the business
and share equally in profits and losses (though the
partners' monetary contributions may vary). [Cases:
Partnership <8=>79,86, 87.J
implied partnership. See partnership by estoppel.
limited-liability partnership. (1910) A partnership in
which a partner is not liable for a negligent act com
mitted by another partner or by an employee not
under the partner's supervision . All states have
enacted statutes that allow a business (typically a law
firm or accounting firm) to register as this type of
partnership. Abbr. L.L.P. [Cases: Partnership C:=>
371.J
limited partnership. (l8c) A partnership composed
of one or more persons who control the business
and are personally liable for the partnership's debts
(called general partners), and one or more persons
who contribute capital and share profits but who
cannot manage the business and are liable only for
the amount of their contribution (called limited
partners) . The chief purpose ofa limited partner
ship is to enable persons to invest their money in a
business without taking an active part in managing
the business, and without risking more than the sum
originally contributed, while securing the coopera
tion ofothers who have ability and integrity but insuf
ficient money. Abbr. L.P. Also termed special
partnership; (in civil law) partnership in commendam.
[Cases: Partnership (,':J349-376.]
"Unknown at common law, the limited partnership was
derived from the commenda or societe en commandite of
continental Europe to permit a person to invest and share
in the profits of a partnership business and yet limit one's
liability to one's investment. It was first recognized in the
United States by a New York statute of 1822. It is now rec
ognized by statute in all Americanjurisdictions." Henry G.
Henn & John R. Alexander, Laws of Corporations 28, at
86 (3d ed. 1983).
"[Tjhe two primary characteristics of a limited partnership
[arejliability of limited partners only for their agreed con
tributions, and a hierarchical structure with management
in one or more general partners and very little power or
authority in the limited partners. Thus, limited partners are
typically -although not necessarily passive contribu
tors of capital. ... In this respect they resemble sharehold
ers in a corporation, but, depending on the details of the
organizational documents, they may have greater or lesser
rights." 3 Alan R. Bromberg & Larry E. Ribstein, Bromberg
and Ribstein on Partnerships 12.01, at 12:5-12:6 (1999).
master limited partnership. See publicly traded part
nership.
nontrading partnership. A partnership that does not
buy and sell but instead is a partnership of employ
ment or occupation. -Also termed noncommercial
partnership . This type ofpartnership offers services
rather than goods.
1231 party
particular partnership. A partnership in which the
members unite to share the benefits ofa single trans
action or enterprise.
partnership at will. (1849) A partnership that any
partner may dissolve at any time without thereby
incurring liability. Cf. partnership for a term. [Cases:
Partnership (;::::::;C259.5.]
partnership by estoppel. (1872) A partnership implied
by law when one or more persons represent them
selves as partners to a third party who relies on that
representation . A person who is deemed a partner
by estoppel becomes liable for any credit extended to
the partnership by the third party. -Also termed
implied partnership. [Cases: Partnership
partnership for a term. A partnership that exists for a
specified duration or until a specified event occurs.
Such a partnership can be prematurely dissolved
by any partner, but that partner may be held liable
for breach ofthe partnership agreement. Cf. partner
ship at will.
partnership in commendam. See limited partnership.
publicly traded partnership. A partnership whose
interests are traded either over-the- |
am. See limited partnership.
publicly traded partnership. A partnership whose
interests are traded either over-the-counter or on a
securities exchange . These partnerships may be
treated as corporations for income-tax purposes. IRC
(26 USCA) 7704(a). -Abbr. PTP. -Also termed
master limited partnership.
special partnership. 1. See limited partnership. 2. A
partnership formed only for a Single venture.
subpartnership. An arrangement between a firm's
partner and a nonpartner to share the partner's profits
and losses in the firm's business, but without forming
a legal partnership between the partner and the non
partner.
tiered partnership. An ownership arrangement con
sisting of one parent partnership that is a partner in
one or more subsidiary partnerships.
trading partnership. A partnership whose usual
business involves buying and selling. Also termed
commercial partnership.
umbrella limited partnership. A limited partner
ship used by a real-estate investment trust to acquire
investment properties in exchange for shares in the
partnership. See umbrella-partnership real-estate
investment trust under REAL-ESTATE INVESTMENT
TRUST.
universal partnership. A partnership formed by
persons who agree to contribute all their individu
ally owned property and to devote all their skill,
labor, and services to the partnership. [Cases: Part
nership (;::::) 22.]
partnership agreement. (1802) A contract defining the
partners' rights and duties toward one another not
the partners' relationship with third parties. -Also
termed articles ofpartnership. [Cases: Partnership
22,71.] partnership association. (1812) A business organization
that combines the features ofa limited partnership and
a close corporation . Partnership associations are stat
utorily authorized in only a few states. Also termed
statutory partnership association; limited partnership
association. [Cases: Partnership <'::=>349-376.]
partnership at will. See PARTNERSHIP.
partnership certificate. A document that evidences the
participation of the partners in a partnership . The
certificate is often furnished to financial institutions
when the partnership borrows money.
partnership distribution. See DISTRIBUTION.
partnership insurance. See INSURANCE.
partner's lien. (1870) A partner's right to have the part
nership property applied in payment of the partner
ship's debts and to have whatever is due the firm from
fellow partners deducted from what would otherwise
be payable to them for their shares. [Cases: Partner
ship (':::::'89.]
partnership life insurance. See partnership insurance
(1) under INSURANCE.
part payment. See PAYMENT.
part performance. 1. See PERFORMANCE. 2. See PART
PERFORMANCE DOCTRINE. !
part-performance doctrine. (1935) The equitable prin
ciple by which a failure to comply with the statute of
frauds is overcome by a party's execution, in reliance
on an opposing party's oral promise, of a substantial
portion of an oral contract's requirements. Some
times shortened to part performance. See part perfor
mance under PERFORMANCE. [Cases: Frauds, Statute
ofC=> 129.J
"Part performance is not an accurate deSignation of such
acts as taking possession and making improvements
when the contract does not provide for such acts. but such
acts regularly bring the doctrine into play. The doctrine
is contrary to the words of the Statute of Frauds, but it
was established by English courts of equity soon after the
enactment of the Statute. Payment of purchase-money,
without more, was once thought sufficient to justify
specific enforcement, but a contrary view now prevails,
since in such cases restitution is an adequate remedy.
English decisions treated a transfer of possession of the
land as sufficient, if unequivocally referable to the oral
agreement, apparently on the ground that the promise
to transfer had been executed by a commonlaw convey
ance. Such decisions are not generally followed in the
United States. Enforcement has instead been justified
on the ground that repudiation after 'part performance'
amounts to a 'virtual fraud.' A more accurate statement is
that courts with equitable powers are vested by tradition
with what in substance is a dispensing power based on
the promisee's reliance, a discretion to be exercised with
caution in the light of all the circumstances." Restatement
(Second) of Contracts 129 cmt. a (1979).
part-sovereign state. See SOVEREIGN STATE.
party. (l3c) l. One who takes part in a transaction <a
party to the contract>. [Cases: Contracts 177.]
"Note, that if an Indenture be made between two as Parties
thereto in the Beginning, and in the Deed one of them
grants or lets a Thing to another who is not named in
the Beginning, he is not Party to the Deed, nor shall take
1232 party-column ballot
any Thing thereby." John Rastell, Les Termes de la Ley471
(26th ed. 1721).
"A person who takes part in a legal transaction or pro
ceeding is said to be a party to it. Thus, if an agreement,
conveyance, lease, or the like, is entered into between
A. and B., they are said to be parties to it: and the same
expression is often, though not very correctly, applied to
the persons named as the grantors or releasors in a deed
polL" 2 Stewart Rapalje &Robert L. Lawrence, A Dictionary
ofAmerican and English Law 930 (1883).
party ofthe first part. (18c) Archaic. The party named
first in a contract; esp., the owner or seller.
party of the second part. (18c) Archaic. The party
named second in a contract; esp., the buyer.
2. One by or against whom a lawsuit is brought <a party
to the lawsuit>. _ For purposes of res judicata, a party
to a lawsuit is a person who has been named as a party
and has a right to control the lawsuit either personally,
or, ifnot fully competent, through someone appointed
to protect the person's interests. [Cases: Federal Civil
Procedure (;='101.]
adverse party. (I5c) A party whose interests are
opposed to the interests ofanother party to the action.
Cf. hostile witness under WITNESS.
aggrieved party. (17c) A party entitled to a remedy;
esp., a party whose personal, pecuniary, or property
rights have been adversely affected by another person's
actions or by a court's decree or judgment. -Also
termed party aggrieved; person aggrieved. [Cases:
Action (::::: 13; Appeal and Error (;::::> 151; Federal
Civil Procedure (;=~103.2.]
coparty. See COPARTY.
fictitious party. A person who is named in a writ, com
plaint, or record as a party in a suit, but who does not
actually exist, or a person who is named as a plain
tiff but is unaware of the suit and did not consent to
be named. [Cases: Federal Civil Procedure (;::::> 101;
Parties (;::::>73.]
formal party. See nominal party.
indispensable party. (1821) A party who, having inter
ests that would inevitably be affected by a court's
judgment, must be included in the case. _ Ifsuch a
party is not included, the case must be dismissed. Fed.
R. Civ. P. 19(b). Cf. necessary party. [Cases: Federal
Civil Procedure (;::::>203; Parties (;::::>, 18,29.]
innocent party. (16c) A party who did not consciously
or intentionally participate in an event or transac
tion.
interested party. (17c) A party who has a recognizable
stake (and therefore standing) in a matter. -Abbr.
IP. [Cases: Action (;::::>13; Federal Civil Procedure (;::::>
103.2.]
joint party. See COPARTY.
necessary party. (18c) A party who, being closely con
nected to a lawsuit, should be included in the case if
feasible, but whose absence will not require dismissal
of the proceedings. See compulsory joinder under JOINDER. Cf. indispensable party. (Cases: Federal Civil
Procedure (;::::>202; Parties (;::::> 18,29.]
nominal party. (18c) A party to an action who has no
control over it and no financial interest in its outcome;
esp., a party who has some immaterial interest in
the subject matter of a lawsuit and who will not be
affected by any judgment, but who is nonetheless
joined in the lawsuit to avoid procedural defects.
An example is the disinterested stakeholder in a gar
nishment action. -Also termed formal party. Cf. real
party in interest. [Cases: Federal Civil Procedure
102; Parties ("-'4.]
party aggrieved. See aggrieved party.
party cast. The losing party in a lawsuit.
party in interest. See real party in interest.
party opponent. (18c) An adversary in a legal proceed
ing. Sometimes written party-opponent.
party to be charged. (1923) A defendant in an action
to enforce a contract falling within the statute of
frauds.
prevailing party. (17c) A party in whose favor a
judgment is rendered, regardless of the amount of
damages awarded <in certain cases, the court will
award attorney's fees to the prevailing party>. Also
termed successful party. See Buckhannon Bd. & Care
Horne, Inc. v. West Va. Dep't ofHealth & Human Res.,
532 U.S. 598,603, 121 S.Ct. 1835, 1839 (2001) (relying
on the seventh edition of Black's Law Dictionary
[1999]). [Cases: Costs (;::::>32, 194.14; Federal Civil
Procedure (;=2727,2737.1.]
proper party. (1823) A party who may be joined in
a case for reasons of judicial economy but whose
presence is not essential to the proceeding. See per
missive joinder under JOINDER. [Cases: Federal Civil
Procedure Parties 14,25.]
real party in interest. (1804) A person entitled under
the substantive law to enforce the right sued upon
and who generally, but not necessarily, benefits from
the action's final outcome. -Also termed party in
interest; (archaically) interessee. Cf. nominal party.
[Cases: Federal Civil Procedure Parties (;::::>
6(2).]
"[Tlhe 'real party in interest' is the party who, by the sub
stantive law, possesses the right sought to be enforced,
and not necessarily the person who will ultimately benefit
from the recovery .... The concept of real party in interest
should not be confused with the concept of standing. The
standing question arises in the realm of public law, when
governmental action is attacked on the ground that it
violates private rights or some constitutional principle ....
Unfortunately, ... confusion between standing on the one
hand and real party in interest or capacity on the other has
been increasing." Charles Alan Wright, The Law ofFederal
Courts 70, at 490 & n.2 (5th ed. 1994).
successful party. See prevailing party.
third party. See THIRD PARTY.
3. POLITICAL PARTY.
party-column ballot. See BALLOT (4).
1233
party wall. See WALL.
parum cavisse videtur (par-dm b-vis-ee vI-dee-tdr).
[Latin] Hist. He seems to have taken too little care; he
seems to have been incautious . This expression was
used by a judge when pronouncing a death sentence.
par value. The value of an instrument or security as
shown on its face; esp., the arbitrary dollar amount
assigned to a stock share by the corporate charter, or
the principal ofa bond at maturity. -Often shortened
to par. Also termed face value; nominal value; stated I
value. [Cases: Corporations ~~99(3).1
"At one time par value had considerable importance
because it was widely viewed as the amount for which
the shares would be issued: shares with a par value of one
hundred dollars could be subscribed for at one hundred
dollars per share with confidence that all other identi
cal shares would also be issued for $100. This practice,
however, long ago fell into disuse. Today, par value serves
only a minor function and is in no wayan indication of the
price at which the shares are issued, with this one excep
tion: The one basic rule about setting the price for shares
of common stock with a par value is that the price must be
equal to or greater than par value." Robert W. Hamilton, The
Law ofCorporations in a Nutshell 109 (3d ed. 1991).
par-value stock. See STOCK.
parvis (pahr-vis). [fro Old Fr. pareis "paradise," fro Late
Latin paradsus "garden"] Hist. An academic exercise,
such as a moot court. Also spelled pervise; parvise.
pass, vb. (14c) 1. To pronounce or render an opinion,
ruling, sentence, or judgment <the court refused to pass
on the constitutional issue, deciding the case instead
on procedural grounds>. 2. To transfer or be trans
ferred <the woman's will passes title to the house to her
nephew, much to her husband's surprise>. 3. To enact
(a legislative bill or resolution); to adopt <Congress has
debated whether to pass a balanced-budget amendment
to the Constitution>. See ADOPTION (5). 4. To approve
or certify (something) as meeting specified require
ments <the mechanic informed her that the car had
passed inspection>. 5. To publish, transfer, or circu
late (a thing, often a forgery) <he was found guilty
of passing counterfeit bills>. 6. To forgo or proceed
beyond <the case was passed on the court's trial docket
because the judge was presiding over a criminal trial>.
7. ABSTAIN (1).
passage, n. 1. A |
the judge was presiding over a criminal trial>.
7. ABSTAIN (1).
passage, n. 1. ADOPTION (5); esp., the passing of a leg
islative measure into law. [Cases: Statutes (;=> 17.j 2. A
right, privilege, or permission to cross land or water; an
easement to travel through another's property_ 3. The
process of traveling, esp. in transit <safe passage>. 4.
The act of coming and going <right of passage>.
pass-along, adj. See PASS-THROUGH.
passbook. A depositor's book in which a bank records
all the transactions on an account. Also termed
bankbook.
passed dividend. See DIVIDEND.
passim (pas-im), adv. [Latin] (17c) Here and there;
throughout (the cited work) . In modern legal writing,
the citation signal see generally is preferred to passim as
a general reference, although paSSim can be useful in a passport
brief's index of authorities to show that a given author
ity is cited throughout the brief.
passing off, n. (1900) Intellectual property. The act or
an instance of falsely representing one's own product
as that of another in an attempt to deceive potential
buyers. Passing off is actionable in tort under the
law ofunfair competition. It may also be actionable as
trademark infringement. Also termed palming off;
misrepresentation ofsource. Cf. MISAPPROPRIATION.
[Cases: Antitrust and Trade Regulation (;-.;;>41; Trade
marks C='1428(1).J pass off, vb.
reverse passing off. lhe act or an instance of falsely
representing another's product as one's own in an
attempt to deceive potential buyers. -Also termed
reverse palming off. [Cases: Federal Civil Procedure
(;=;:2727,2737.1.]
passing on. See pass-on defense under DEFENSE (1).
passive, adj. Not involVing active participation; esp., of
or relating to a business enterprise in which an investor
does not have immediate control over the activity that
produces income.
passive activity. (1962) Tax. A business activity in which
the taxpayer does not materially participate and there
fore does not have immediate control over the income.
A typical example is the ownership and rental of real
property by someone not in the real-property business.
[Cases: Internal Revenue (;=>3418.]
passive adoption-registry statute. See ADOPTION-REG
ISTRY STATUTE.
passive bond. See BOND (3).
passive breach ofcontract. See BREACH OF CONTRACT.
passive concealment. See CONCEALMENT.
passive conduct. See CONDUCT.
passive debt. See DEBT.
passive duty. See negative duty under DUTY (1).
passive euthanasia. See EUTHANASIA.
passive income. See INCOME.
passive investment income. See INCOME.
passive loss. See LOSS.
passive mercy killing. See DYATHANASIA.
passive negligence. See NEGLIGENCE.
passive trust. See TRUST.
pass-on defense. See DEFENSE (1).
passport. 1. A formal document certifying a person's
identity and citizenship so that the person may travel
to and from a foreign country. [Cases: Aliens, Immigra
tion, and Citizenship (;=>674.j 2. SEA LETTER. 3. SAFE
CONDUCT.
"A passport is the universally accepted evidence of a
person's identity and nationality. It does not give its bearer
the right to travel in another country, but it does request
that other governments permit him to travel in their ter
ritories or within their jurisdictions. It also entitles him to
the protection and assistance of his own diplomatic and
1234 Passport Office
consular officers abroad." Burdick H. Brittin, International
Law for Seagoing Officers 183 (4th ed. 1981).
Passport Office. See BUREAU OF CONSULAR AFFAIRS.
pass the witness. See TAKE THE WITNESS.
pass-through, adj. (1951) (Of a seller's or lessor's costs)
chargeable to the buyer or lessee. Also termed pass-
along.
pass-through security. See SECURITY.
pass-through taxation. See TAXATION.
past consideration. See CONSIDERATION (1).
past recollection recorded. Evidence. A document con
cerning events that a witness once knew about but can
no longer remember . The document itself is evidence
and, despite being hearsay, may be admitted and read
into the record ifit was prepared or adopted by the
witness when the events were fresh in the witness's
memory. Fed. R. Evid. 803(5). Also termed recorded
recollection; past recorded recollection. Cf. PRESENT
RECOLLECTION REFRESHED. [Cases: Criminal Law~
435; Evidence ~355(6).1
Pasula-Robinette test. The principle that if a miner
establishes a prima facie case of retaliation for filing a
claim under the Mine Safety and Health Act, the mine
operator can still prevail by proving, as an affirmative
defense, that (1) the miner did not engage in a protected
activity, (2) the adverse action was based on the miner's
unprotected activity, and (3) the mine operator would
have taken the same action based solely on the unpro
tected activity . To establish a prima facie case ofretal
iation, the evidence must show that the miner engaged
in a protected activity and that an adverse employment
action occurred based at least in part on that activity.
30 USCA 815(c); Secretary ex rei. Pasula v. Consolida
tion Coal Co., 2 FMSHRC 2786 (1980); Secretary ex reI.
Robinette v. United Coal Co., 3 FMSHRC 802 (1981).
pat-down, n. See FRISK.
pateat universis per praesentes (pat-ee-at yoo-n;l-var
sis par pri-zen-teez). [Law Latin) Let it be open to all
men by these presents. Cf. KNOW ALL MEN BY THESE
PRESENTS; NOVERINT UNIVERSI PER PRAESENTES.
Pate hearing. A proceeding in which the trial court seeks
to determine whether a criminal defendant is com
petent to stand trial. Pate v. Robinson, 383 U.S. 375,
86 S.Ct. 836 (1966); 18 GSCA 4241. Also termed
competency hearing; incompetency hearing. [Cases:
Criminal Law C::~'625.1O-625.35.1
patent (pay-t;lnt), adj. (14c) Obvious; apparent <a patent
ambiguity>. Cf. LATENT. [Cases: Evidence (;:::451.]
patent (pat-ant), n. (14c) 1. The governmental grant ofa
right, privilege, or authority. 2. The official document
so granting. -Also termed public grant. See LETTERS
PATENT.
call patent. A land patent in which the corners have
been staked but the boundary lines have not been run
out at the time of the grant.
escheat patent. See escheat grant under GRANT. land patent. An instrument by which the government
conveys a grant of public land to a private person.
Public Lands Cr-::114(l).]
lapse patent. A land patent substituting for an earlier
patent to the same land that lapsed because the
previous patentee did not claim it.
3. The right to exclude others from making, using,
marketing, selling, offering for sale, or importing an
invention for a speCified period (20 years from the
date of filing), granted by the federal government to
the inventor if the device or process is novel, useful, and
nonobvious. 35 USCA 101-103. The holding of a
patent alone does not by itself grant any right to make,
use, or sell anything if that activity would infringe
another's blocking patent. -Also termed patent right;
patent grant. [Cases: Patents ~1.]
'The franchise which the patent grants consists altogether
in the right to exclude everyone from making, using or
vending the patented article, without the permission of
the patentee. This is all he obtains by the patent." Bloomer
v. McQuewan, 55 U.S. 539, 549 (1852).
"What, exactly, is a patent and how does it operate to foster
the 'progress of the useful arts'? In its simplest terms a
patent is an agreement between an inventor and the
publiC, represented by the federal government: in return
for a full public disclosure of the invention the inventor
is granted the right for a fixed period of time to exclude
others from making, usi ng, or selling the defined invention
in the United States. It is a limited monopoly, designed
not primarily to reward the inventor (this mayor may not
follow), but to encourage a public disclosure of inventions
so that after the monopoly expires, the public is free to
take unrestricted advantage of the invention." Earl W.
Kintner &Jack l. Lahr, An Intellectual Property Law Primer
7-11 (2ded.1982).
basicpatent. See pioneer patent.
blocking patent. One of two patents, neither of which
can be effectively practiced without infringing the
other. For example, if A patents an improvement
of B's patented invention, A cannot practice the
improvement without infringing B'g patent. Nor can
B use the improvement without infringing A's patent.
Owners ofblocking patents often cross-license each
other. See fencing patent; DOMINATION.
broadened reissue patent. Patents. A patent that is
issued again, having broader claims than the original,
surrendered patent. Under 35 USCA 251, a patent
may be reissued, under certain circumstances, with
broader claims than the original patent ifthe reissue
application is filed within two years of the grant of
the original patent. See INTERVENING RIGHTS. [Cases:
Patents (':::> 141(3).)
business-method patent. A U.S. patent that describes
and claims a series of process steps that, as a whole,
constitutes a method ofdoing business . Until 1998,
methods for doing business were not expressly rec
ognized as being patentable. In that year, the Federal
Circuit Court ofAppeals held in State Street Bank &
Trust Co. v. Signature Fin. Group, Inc., 140 F.3d 1368
(Fed. Cir. 1998), that business methods are subject to
the same legal requirements for patentability as any
1235
other process or method. -Also termed cyberpatent.
[Cases: Patents (;::::::'7.14.]
combination patent. A patent granted for an inven
tion that unites existing components in a novel and
nonobvious way. [Cases: Patents (;::::::26.]
Community patent. An international patent issued by
the European Patent Office. -Community patents are
good for 20 years from the application date. They may
be registered in any nation in the European Union
and other EPC signatories.
copending patent. A patent whose application is being
prosecuted at or near the same time as another, similar
patent. _ Continuing applications must be copend
ing with an existing patent application. A copend
ing patent may affect another patent's validity if it
discloses the same invention, or discloses some part
of the invention that, combined with other prior art,
results in anticipation (esp. ifthe copending patent is
issued before the affected patent). A copending patent
may be shown to be an unpatentable improvement
on another copending patent's invention. 35 USCA
102(e). See eOPENDING. [Cases: Patents (;:::::: 110,7.]
cyberpatent. 1. See business-method patent. 2. See
Internet patent.
design patent. A patent granted for a new, original, and
ornamental design for an article of manufacture; a
patent that protects a product's appearance or non
functional aspects. -Design patents -which, unlike
utility patents, have a term of only 14 years from the
date the patent is granted -are similar to copyrights.
36 USCA 171. [Cases: Patents
dominating patent. See fencing patent.
fencingpatent. A patent procured for some aspect ofan
invention that the inventor does not intend to produce
but that the inventor wants to prevent competitors
from using in making improvements. -By making a
claim whose only purpose is to protect other claims,
the inventor seeks to "fence in" any such competing
improvements. Courts disfavor fenCing claims.
Also termed dominating patent. [Cases: Patents
121.]
improvement patent. A patent having claims directed
to an improvement on a preexisting invention. _ If
the preexisting invention is patented by another, the
owner of the improvement patent may need a license
to practice the invention covered by the claims of
the improvement patent. Similarly, the owner of the
preexisting invention's patent may need a license to
practice the invention in the improvement patent. Cf.
pioneer patent. [Cases: Patents (>:::J9.]
in-force patent. A patent that has not expired or been
ruled invalid.
Internet patent. A type of utility patent granted on
an invention that combines business methods and
software programs for Internet applications. -Also
termed cyberpatent. patent
method patent. A patent having method or process
claims that define a series of actions leading to a
tangible physical result. -Also termed process patent.
[Cases: Patents
paper patent. A patent granted for a discovery or
invention that has never been used commercially. - A
paper patent may receive less protection under the law
than a patent granted for a device that is actually used
in industry. As a prior-art reference, a paper patent |
law
than a patent granted for a device that is actually used
in industry. As a prior-art reference, a paper patent
may carry less weight with examiners than one for
an invention that has been commercially exploited,
because it may suggest that the invention did not work
as claimed. [Cases: Patents
pioneer patent. A patent covering a function or a
major technological advance never before performed,
a wholly novel device, or subject matter of such
novelty and importance as to mark a distinct step in
the progress ofthe art, as distinguished from a mere
improvement or perfection of what had gone before.
_ Under U.S. law, the claims of a pioneer patent are
entitled to broader interpretation and to be given a
broader range ofequivalents. A pioneer patent is usu.
the first one documented by a patent-tracking service,
although it may not be the first patent published by
a national registry, such as the PTa. -Cf. improve
ment patent. [Cases: Patents C=> 173.]
'To what liberality of construction these claims are entitled
depends to a certain extent upon the character ofthe inven
tion, and whether it is what is termed on ordinary parlance
a 'pioneer.' This word, although used somewhat loosely,
is commonly understood to denote a patent covering a
function never before performed, a wholly novel device, or
one of such novelty and importance as to mark a distinct
step in the progress of the art, distinguished from a mere
improvement or perfection of what had gone before" West
inghouse v. Boyden Power Brake Co., 170 U.S. 537,561-62,
18 S.O. 707, 718 (1898).
plant patent. A patent granted for the invention or
discovery ofa new and distinct variety of asexually
reproducing plant. 36 USCA 161. [Cases: Patents
(>::)14.]
process patent. A patent for a method of treating spec
ified materials to produce a certain result; a patent
outlining a means of producing a physical result
independently ofthe prodUcing mechanism. -The
result might be brought about by chemical action, by
applying some element or power ofnature, by mixing
certain substances together, or by heating a substance
to a certain temperature. See method patent. [Cases:
Patents
reissue patent. A patent that is issued to correct unin
tentional or unavoidable errors in an original patent,
such as to revise the specification or to fix an invalid
claim. - A reissue may correct patent defects that
might call the validity of the patent into question.
It is also used, although rarely, to make the claims
broader or narrower. The patentee risks the possibil
ity that previously allowed claims may be rejected.
It does not change the term of the patent. 35 USCA
251. Sometimes shortened to reissue. [Cases:
Patents C=> 135.]
submarine patent. Slang. A patent that is delayed in
prosecution by the applicant in order to let an infring
ing user continue to develop its business, with the
intention oftaking in later-invented technology once
the patent finally "surfaces" from the U.s. Patent and
Trademark Office. -Typically, the patent applicant
is aware of the developments and consciously delays
the PTa's issuance of a patent, so that the invention's
unwitting users will be forced to pay license fees. As
of29 November 2000, most patent applications must
be published within 18 months of filing, so submarine
patents are relatively rare now. See CONTINUATION
APPI.ICATION LACHES DOCTRINE.
utility-model patent. See UTILITY MODEL.
utility patent. A patent granted for one ofthe following
types of inventions: a process, a machine, a manu
facture, or a composition of matter (such as a new
chemical). Utility patents are the most commonly
issued patents. 35 USCA 101. [Cases: Patents ~
1.]
patentability opinion. See OPINION (2).
patentability search. An inventor's research into a field's
state of the art to determine whether an invention
will qualify for patent protection. Cf. INfRINGEMENT
SEARCH; VALIDITY SEARCH.
patentable, adj. Capable of being patented <patentable
processes>.
patentable combination. A series of process steps,
mechanical elements, or a mixture of materials that
produce a desirable result or effect that is not obvious
from the qualities of the individual components or
steps. [Cases: Patents ~7.1O.1
patentable subject matter. Things that by law can be
patented; any machine, process, manufacture, or
material composition, or an improvement to such
things, that (1) is discovered or invented, (2) is new
and useful, and (3) meets the statutory conditions and
requirements to qualify for a patent. Patents may
be issued for "any new and useful process, machine,
manufacture, or composition of matter, or any new and
useful improvement thereof." 35 USCA 101. Patents
may not be issued for laws of nature, naturally occur
ring materials, physical phenomena, or abstract ideas
and formulas. But if a naturally occurring material is
processed in a way that gives it a new use, that process
may be patentable. -Often shortened to subject
matter. -Also termed statutory subject matter. [Cases:
Patents
Patent Act. The current federal statute governing patent
registrations and rights, enacted in 1952.35 USCA 1
et seq . The Act reversed several Supreme Court doc
trines of patentability by eliminating the synergism and
"flash ofgenius" requirements for combination patents
( 103), making "means-plus-function" claims valid
once again ( 112), and narrowing the patent-misuse
doctrine ofcontributory infringement ( 271). Also
termed Patent Act of1952. Patent Act of 1790. Hist. The first U.S. patent statute,
establishing a board to examine patent applications,
specifications, and drawings to determine whether
the invention is suffiCiently useful and important" to
justify the granting ofa patent. The examining board,
comprising the Secretary ofState, the Secretary ofWar,
and the Attorney General, was abolished three years
later in favor ofa simple registration system.
Patent Act of 1793. Hist. An early U.S. patent law that (1)
abandoned the examination process in favor ofsimple
registration (2) established the infringement defenses of
invalidity for lack of novelty or public use; and (3) artic
ulated the four categories ofpatentable subject matter as
machine, manufacture, composition ofmatter, and art
(now called process). -The State Department handled
the registration of patents, and their question of their
validity was left up to the courts.
Patent Act of 1836. Hist. The U.S. statute that charged
the Patent Office with examining patent applications
for novelty and utility, and that first required claims in
patent applications.
Patent Act of 1870. A U.S. statute that shifted the burden
of disclosing the exact nature of an invention to the
patent applicant by requiring a rigorous listing of
distinct claims. -Before the Act was passed, patent
claims were less important than the description and
drawings, and the scope of the patent grant was often
ambiguous.
Patent Act of 1952. See PATENT ACT.
patent agent. See AGENT (2).
patent ambiguity. See AMBIGUITY.
Patent and Copyright Clause. (1929) The constitutional
provision granting Congress the authority to promote
the advancement of science and the arts by establish
ing a national system for patents and copyrights. U.S.
Const. art. I, 8, cl. 8. [Cases: Patents ~3.]
Patent and Trademark Depository Library. A library
that has been designated by the U.S. Patent and Trade
mark Office as an official repository tor information to
aid in a patent or trademark search. Abbr. PTDL.
Patent and Trademark Law Amendments Act. See
BAYH-DOLE ACT.
Patent and Trademark Office. The Department of
Commerce agency that examines patent and trade
mark applications, issues patents, registers trademarks,
and furnishes patent and trademark information and
services to the public. -Abbr. PTa. [Cases: Patents
patent application. An inventor's request for a patent,
filed with the U.S. Patent and Trademark Office and
accompanied by a specification (ending with at least
one claim), drawings, the filing fee, and (except for a
provisional patent application) an oath or a declaration.
[Cases: Patents G'='98.]
allowed application. A patent application for which
the U.s. Patent and Trademark Office examiner has
determined that at least one pending claim meets the
1237
conditions for patentability . When an application
is allowed, the PTO notifies the applicant through
a Notice of Allowability and a Notice ofAllowance.
Once a patent application is allowed, a patent normally
issues after the applicant has paid the required issue
fee. [Cases: Patents <)=> 104.J
application for a reissue patent. An application by
a patentee to change the scope of a patent that has
already been issued, or to correct clerical or tech
nological errors in the issued patent. The scope of
the claims can be broadened only if the application i
is made within two years of the date the patent was
issued. See reissue patent under PATENT (3). Cfcertifi
cate ofcorrection. [Cases: Patents 104.]
child application. A later-filed application in a chain !
ofcontinuing applications filed during the pendency
ofan earlier application and sharing common subject
matter. The first~filed application is called the parent
application. Cf. parent application. [Cases: Patents
<)=> 1l0.]
continued-prosecution application. A request to
abandon a patent application after final rejection and
reopen a new case with the same file wrapper as the
parent application . CPAs are authorized in 37 CFR
l.S3(d). -Abbe. CPA. Also termed Rule 1.S3(d)
application. Cf. REQUEST FOR CONTINUED EXAMINA
TION. [Cases: Patents 110.]
continuing application. A patent application that is
filed while the parent application is pending and that
carries on prosecution of some or all of the original
application . Continuation, continuation-in-part,
divisional, and reissue applications are all forms of
continuing applications. [Cases: Patents C=>1l0.]
Convention application. A patent application filed in
accordance with the terms of an international patent
treaty such as the Paris Convention or the Patent
Cooperation Treaty.
divisional application. A patent application based on
the same disclosure as the original application but
claiming a different invention . Ifan examiner finds
that a disclosure reveals two or more distinct inven
tions, the applicant must restrict the original applica
tion to claiming one of the inventions. A divisional
application can then be filed on any nonelected inven
tion, and it will keep the same filing date as the parent
application. Often shortened to divisional. Also
termed restriction application. [Cases: Patents
109.]
file-wrapper continuation application. 1. See CON
TINUATION. 2. See CONTINUATION-IN-PART.
grandparent application. The first-filed application in
a chain of at least three continuation or continuation
in-part patent applications. [Cases: Patents C::) 110.)
informal application. A patent application that is not
in the correct form as required by the U.S. Patent
and Trademark Office . According to the Manual
of Patent Examining Procedure, an application is
informal if it is printed on both sides of the paper, patent-application amendment
or is not permanent, legible, or reproducible. An
informal application may be corrected and still retain
the original filing date. [Cases: Patents <::=>98.]
international application. An application under the
Patent Cooperation Treaty for patent protection in
specified member nations . A PCT filing may be
added as long as 31 months after the initial filing in
a national patent office. It allows for simultaneous
patent searches and examinations in multiple coun
tries. -Also termed PCT application; peTfiling. See
PATENT COOPERATION TREATY.
international application designating the United
States. An international-patent application that
is filed in accordance with the Patent Cooperation
Treaty and specifically seeks patent protection in
the United States . The application may be filed in
any nation, including the U.S., that is a party to the
treaty.
international application originating in the United
States. An international-patent application that
is filed in the U.S. Patent and Trademark Office in
accordance with the Patent Cooperation Treaty .
Under the treaty, the PTO acts as a receiving office for
international applications. 1he applicant mayor may
not be seeking patent protection in the U.S. [Cases:
Patents C:::>97.]
parent application.lhe first-filed application in a chain
oflater-filed continuation or continuation-in-part
applications . An application becomes the parent
application when another type of application (such
as continuation, divisional, or substitute) is filed.
The term "parent" is generally not used to refer to a
provisional application. Cf. child application. [Cases:
Patents <)=> 110.]
provisional application. An application that can be
filed up to a year before the patent application itself, in
order to establish a date for prior art and constructive
reduction to practice . The PPA must include a full
description of the invention, but claims, drawings and
prior-art disclosures are not required. Also termed
provisional patent application. -Abbr. PPA. [Cases:
Patents <)=>98.]
restriction application. See divisional application.
Rule 1.53 application. See continued-prosecution appli
cation.
substitute application. A duplicate application filed
after the response period for a first office action has
expired and the |
cation.
substitute application. A duplicate application filed
after the response period for a first office action has
expired and the first application has been deemed
abandoned. A substitute application carries some
danger for the applicant: the original filing date is lost,
and any developments since that date become prior
art that the examiner must consider before granting
the patent. [Cases: Patents 110.)
patent-application amendment. A modification to a
patent application, usu. narrowing or eliminating some
claims in response to an examiner's rejection. [Cases:
Patents <)=> 109.)
amendment after allowance. An amendment sub
mitted to the U.S. Patent and Trademark Office after
the PTO has mailed notice of a patent application's
approval. Once a notice of allowance has been
mailed, prosecution of the application is closed on
the merits, and the entry of any amendment is within
the discretion of the patent examiner. Amendments
after allowance commonly address such matters as an
amendment to the specification or claims, a change in
the drawings or the list ofinventors, and the submis
sion of prior art. Amendments that merely correct
formal matters in the speCification or drawings,
change the claims without changing their scope, or
cancel a claim are typically approved by the Office.
Amendments ofgreater significance require approval
of the supervisory examiner under policies estab
lished by the group director. CFR 1.312. -Also
termed 312 amendment; Rule 312 amendment. See
amendment after payment ofissuefee. [Cases: Patents
(;::::> 109.J
amendment after appeal. An amendment made after
an appeal is taken from a patent application's final
rejection. Such an amendment is not made as a
matter of right but is frequently allowed if it puts
the case in better form for consideration on appeal
or helps implement an examiner's recommendation.
[Cases: Patents (;::::> 109.]
amendment after final action. An amendment made
after final rejection of the patent application . The
amendment may drop claims but not add them. To
be entered, it may make changes in form, but may
not raise new issues for the examiner. CFR 1.116.
Also termed Rule 116 amendment. [Cases: Patents C.;;c
109.]
amendment after payment ofissue fee. An amend
ment made by the applicant after the application
has been allowed and the issue fee paid. Such an
amendment is not made as a matter of right but is
governed by 37 CFR 1.312. It must be accompanied
by a petition to the Commissioner showing good and
sufficient reasons why the amendment was not pre
sented earlier. See amendment after allowance. [Cases:
Patents (;::::> 109.]
amendment before first action. Seepreliminary amend
ment.
amendment in excess offilingfee. An amendment to a
patent application that increases the number ofclaims
in the original application and requires payment of
an additional fee.
preliminary amendment. An amendment filed before
the U.S. Patent and Trademark Office issues an office
action on a patent application . Amendments that
are not filed with the original application are not con
sidered part of the original disclosure. -Also termed
amendment before first action. [Cases: Patents
109.]
Rule 116 amendment. See amendment after final
action. Rule 312 amendment. See amendment after allow
ance.
312 amendment. See amendment after allowance.
patent attorney. A lawyer who drafts and prosecutes
patent applications, and who represents inventors in
infringement suits and interference hearings . In
addition to a law license, a patent attorney must have a
scientific or technical background, pass the patent bar
examination, and be licensed by the U.S. Patent and
Trademark Office. [Cases: Patents G-~97.1
patent claim. A formal statement describing the novel
features of an invention and defining the scope of the
patent's protection <claim #3 ofthe patent describes an
electrical means for driving a metal pin>. Cf. SPECIFI
CATION (3). [Cases: Patents (;::::> lOL]
"[The patent] application concludes with one or more
'claims.' which are summaries of the points of novelty of
the invention disclosed by the specification. said claims
also following certain fixed forms. If they are broad and
in general terms, the patentee will be well protected, and
will be the possessor of a worth while patent; but if, on the
other hand, the claims are limited in scope, if they recite a
multiplicity of exactly stated and unimportant elements,
or if they are bad in anyone of a number of other ways, the
chances of success are small, the patent will be full of loop
holes of which infringers will be prompt to take advantage,
the inventor will not have received all he is entitled to, nor
all he has paid for, and, if the claims are very limited, it
is more than likely that he will have obtained a patent not
worth the paper upon which it is printed." Richard B. Owen,
Patents, Trademarks, Copyrights, Departmental Practice
14 (1 925).
apparatus claim. A patent claim on a mechanical
device, explaining how the components are con
nected and function together . The preamble of an
apparatus claim typically states the function of the
machine; the body explains its elements and how they
work together.
appendant claim. See dependent claim.
closed-ended claim. A patent claim that expressly
limits its scope to a list of elements, typically intro
duced by the phrase "consisting of." Cf. nearly closed
ended claim; open-ended claim. [Cases: Patents C=C
101(3).]
coined-name claim. A chemical-patent claim con
sisting only of the name of the new material. A
coined-name claim is allowed by the U.S. Patent and
Trademark Office onlv on the rare occasion when the
name is established fn the field before the patent is
applied for. The chemical composition, its phYSical
properties, and the process for making it must still
be disclosed in the specification.
dependent claim. A patent claim that refers to and
further limits another claim or set of claims in the
same patent application. Also termed appendant
claim. [Cases: Patents C:::>165(5).]
design claim. The Single claim allowed in an applica
tion for a design patent, incorporating by reference the
drawing and other specifications . The brief claim
typically starts with "an ornamental design for" and
1239
ends with "as shown" or "as shown and described." Cf.
omnibus claim. [Cases: Patents C:-~J 101(4).]
fingerprint claim. A chemical-patent claim that differ
entiates the material from prior art in terms ofsome
physical feature, such as melting point or spectrum,
rather than its chemical composition. -Fingerprint
claims are allowed only when the chemical composi
tion cannot be determined or cannot be distinguished
from prior art.
generic claim. A claim that encompasses a class of
elements, any of which could function as equiva
lents. -For a generic claim to be valid, the specific
elements it encompasses must have a definable feature
in common that makes them fit for the purpose.
Also termed genus claim. Cf. species claim. [Cases:
Patents (;::>101(5).]
improvement claim. See Jepson claim.
independent claim. A patent claim that does not refer
to any other claim.
Jepson claim. An improvement-patent claim charac
terized by a preamble setting forth the current state
of the art, followed by the phrase "the improvement
comprising" and a description ofthe claimed patent
able improvement. -The name comes from Ex parte
Jepson, 1917 C.D. 62, 243 O.G. 526 (Ass't Comm'r Pat.
19l7), in which this type of claim was first approved
and sanctioned bv the Commissioner of Patents.
Also termed imp;ovement claim.
Markush claim. A patent claim that includes elements
listing alternative chemicals, materials, or steps in a
process. _ A Markush claim typically has language
such as "selected from the group consisting of." The
alternatives must all give the same result, rather than
patentably distinct products. The name derives from
Ex parte Markush, 1925 Dec. Comm'r Pat. 126. See
MARKUSH DOCTRINE. [Cases: Patents~101(7).)
means-combination claim. A type ofclaim in a patent
application that includes multiple limitations, at I
least one ofwhich is in means-plus-function or step-.
plus-function form. _ Means-combination claims !
are acceptable to examiners. [Cases: Patents ~J I
101(10).)
means-plus-function claim. See MEANS-PLUS-FUNC
TION CLAUSE.
method claim. A patent claim that describes what is
done to a workpiece in order to achieve the useful
result claimed. - A method claim is the same thing
as a process claim, but "method" is used more often i
in applications for mechanical and electrical devices. I
[Cases: Patents C:-;) 101(11).) .
multiple-dependent claim. A dependent claim that
refers to more than one other preceding claim.
nearly closed-ended claim. A patent claim that limits I
its scope to a list ofelements but does not expressly
exclude close analogues. The claim is typically intro
duced by a phrase such as "consisting essentially of."
Cf. closed-ended claim; open-ended claim. patent claim
new-use claim. A method claim for a new way ofusing
an existing invention. [Cases: Patents ~27(l).]
nonelected claim. A claim that has been withdrawn
from consideration based on the examiner's finding
that the application claims more than one invention.
_ The applicant must elect to prosecute one inven
tion. Other claims may either be abandoned or else be
prosecuted separately under a divisional application.
See RESTRICTION (4).
nonstatutory claim. See omnibus claim.
omnibus claim. A claim in a patent application that
does not distinctly narrate a means to carry out a
function but rather refers to the drawings or descrip
tion with phrases such as "as described and shown."
Omnibus claims are rejected in the United States but
are accepted elsewhere. Also termed nonstatutory
claim. Cf. design claim.
open-ended claim. A patent claim that contains a
nonexclusive list of elements, typically introduced
by the phrase "consisting of." - A later patent appli
cant cannot avoid infringement by merely adding an
analogue to the list. Cf. closed-ended claim; nearly
closed-ended claim.
plant-patent claim. The Single claim in a plant -patent
application, describing the principal distinguishing
characteristics ofthe plant.
process claim. A patent claim that describes by steps
what is done to the subject matter, usu. a substance,
in order to achieve a useful result. - A process claim
is the same thing as a method claim, but "process" is
used more often in applications for chemical patents.
[Cases: Patents C:-::> 101(11).]
product-by-process claim. A patent claim defining
a product through the process by which it is made.
-The product-by-process claim is most often used
to define new chemical compounds, such as drugs.
[Cases: Patents ~101(11).]
product claim. A patent claim that covers the structure,
apparatus, or composition ofa product.
single-means claim. A type ofclaim in a patent appli
cation that indicates a process, result, or function
but does not describe the method of reaching that
end <a method ofcuring cancer>. _ Where no other
method is obvious, such an assertion claims rights
to all possible ways ofachieving the result -ways
not specified in the application and even ways that
have not yet been invented. Single-means claims are
rejected as too broad. -Also termed single-element
means claim. Cf. MEANS-PLUS-FU::-.fCTION CLAUSE.
[Cases: Patents <>:::> 101(8).]
species claim. A claim that is limited to a single appa
ratus, process, composition of matter, or article of
manufacture, rather than to a range of similar and
related items. Cfgeneric claim.
Squires claim. A utility-patent claim that incorpo
rates a drawing or table by reference. -This claim is
allowed by the u.s. Patent and Trademark Office only
1240 Patent Cooperation Treaty
if there is no practical way to define the invention in
words, but the invention is simple to illustrate with
the drawing or table. See SQt:lRES DOCTRINE. [Cases:
Patents C::;)101(4).]
subcombination claim. A patent claim, usu. on a
device, describing a subsystem of a larger combina
tion. A subcombination may be patented separately
if it has its own utility. [Cases: Patents 101(10).]
Patent Cooperation Treaty. A 1970 treaty that stream
lined the process of securing patents in multiple coun
tries by establishing a single filing date and providing
for a single preliminary patent search . An inventor
who wants to qualify for patents from several member
countries files a standard application in one country,
thus preserving the priority date, then submits a PCT
filing that deSignates which other countries' patents are
being applied for. WIPO, the United Nations' World
Intellectual Property Organization, administers the
treaty. Often shortened to PCT. See international
application under PATENT APPLICATION. [Cases: Patents
C=>97.]
patent danger. See apparent danger (1) under DANGER.
patent deed. See LETTERS PATENT (2).
patent defect. See DEFECT.
patent disclaimer. See statutory disclaimer under DIS
CLAIMER.
patentee (pat-<m-tee). One who either has been granted a
patent or has succeeded in title to a patent. Although
it might seem helpful to distingUish a patentee as
a person to whom a patent is issued and a patent
holder as the owner of a patent, including the original
grantee's assigns, the Patent Act explicitly includes
all title-holders under the term "patente |
including the original
grantee's assigns, the Patent Act explicitly includes
all title-holders under the term "patentee," 35 USCA
100(d). -Also termed patent-holder; patent-owner.
[Cases: Patents 117.]
patent-exhaustion doctrine. Patents, The rule that the
unconditioned sale of a patented article ends the pat
entee's monopoly right to control its use . That control
may still be exercised by limitations in a contract or
license, as long as it does not amount to anticompeti
tive patent misuse. Adams v. Burke, 84 U.S. (17 Wall.)
453 (1874). See FIRST-SALE DOCTRINE. lCases: Patents
C=> 191.]
patent grant. See PATENT (3).
patent-holder. See PATENTEE.
patent infringement, See INFRINGEMENT,
patent insurance. See INSURANCE.
patent marking. The incorporation or affixation of a
patent number to a patented article's surface or sur
rounding packaging . AffiXing the patent number to
a product gives constructive notice of patent rights to
infringers. Without the number in place, a patentee can
not recover losses that occur before the infringer has
actual notice of the patent. 35 USCA 287. See PATENT
NUMBER, [Cases: Patents C=>222.] patent medicine. A packaged drug that is protected by
trademark and is available without prescription. [Cases:
Health C=>302-308.]
patent-misuse doctrine. An equitable rule that patentees
should not be allowed to use their patent to effectively
broaden the scope of their monopoly in restraint of
trade or otherwise against the public interest. Two
common examples of anticompetitive broadening
are (1) using a patent to restrain competition from
an unpatented product or process, and (2) employing
the patent beyond its lifespan to exclude others from
gaining commercial advantages by using the product
or process. The practical effect offinding patent misuse
is the loss of patent protection. The doctrine operates
independently ofantitrust law but overlaps it in many
ways and arose in the same era, at the turn of the 20th
century. It has been described as an application of the
equitable rule of "unclean hands." See nonmetered
license under LICENSE. [Cases: Antitrust and Trade
Regulation C=>S87(3), 682, 732.]
patent number. Patents. The unique eight-charac
ter number assigned by the U.S. Patent and Trade
mark Office to a patent upon issuance. See PATENT
MARKING.
Patent Office. See UNITED STATES PATENT AND TRADE
MARK OFFICE.
Patent Office Reports. Hist. The former official publica
tion of the U.S. Patent and Trademark Office . It was
replaced in 1872 by the Official Gazette of the United
States Patent and Trademark Office.
patent ofprecedence. Hist. A royal grant to a person by
letters patent of a higher social or professional rank
than the person would ordinarily hold or be entitled to.
In the 19th and early 20th centuries, the patent was
most often used to give certain barristers more rights
and privileges. For example, a King's Counsel could not
represent a party against the Crown without a patent
of precedence. See PREAUDIENCE.
patentor (pat-em-tar or pat-an-tor). One who grants a
patent.
patent-owner. See PATENTEE.
patent pending. (1917) The designation given to an
invention while the Patent and Trademark Office is pro
cessing the patent application. _ No protection against
infringement exists, however, unless an actual patent is
granted. Abbr. pat. pend. [Cases: Patents C=> 104.1
patent pooling. The cross-licensing of patents among
patentees. Patent pooling does not violate antitrust
laws unless it is done to suppress competition or control
an industry, [Cases: Monopolies 12(15).]
patent-prosecution process. See PROSECUTION (4).
patent right. 1. See PATENT (3).2. See RIGHT.
patent-right dealer. A person who buys and sells or
brokers the sale or purchase ofpatent rights.
Patent Roll. Hist. A list of the letters patent issued in
the United Kingdom in any given year . 'The first
Patent Roll was issued in England in 1201. The Rolls
1241
were originally used to grant offices, lands, licenses,
peerages, and pensions. In later centuries, they included
grants ofpatents for inventions.
patent search. 1. See INFRINGEMENT SEARCH. 2. See PAT
ENTABILITY SEARCH. 3. See VALIDITY SEARCH.
patent solicitor. See patent agent under AGENT (2).
patent suppression. The deliberate nonuse of a patent,
esp. in order to deny the public or competitors the
benefit of the invention. -Patent suppression is a rich
source of urban legend, such as the rumor of oil com
panies sitting on inventions that would greatly improve
gas mileage, or pantyhose companies suppressing a
patent on no-run nylon. But the stories are not always
fictional: in 1942 Standard Oil admitted trying to delay
synthetic-rubber technology in order to protect its
market in natural rubber.
patent term. The period during which a patent is in force.
[Cases: Patents (;:::::> 131.]
patent-term adjustment. A compulsory extension of the
time a utility or plant patent remains in force, following
administrative delays in prosecuting the application .
A provision of the American Inventors' Protection Act
of 1999, the extension is available for new applications,
continuation applications, and divisional applications
filed since May 29, 2000. Abbr. PTA. Cf. PATENT
TERM EXTENSION. [Cases: Patents 133.]
patent-term extension. A lengthening of the time a
patent remains in force, given to compensate inven
tors for time lost because of administrative delays
such as interferences, secrecy orders, or appeals . The
extension applies to original utility and plant patents
issued after June 7, 1995 and before May 29, 2000.
Its maximum length is five years. Cf. PATENT-TERM
ADJUSTMENT. [Cases: Patents (;:::::> 133.)
patent-term guarantee. An inventor's statutory right
to extend the term of a patent if the application was
delayed by the u.S. Patent and Trademark Office . The
term can be extended up to five years if the applica
tion was delayed because ofan interference proceeding
or appellate review, or if the PTa missed a statutory
deadline for certain steps in the prosecution, or failed
to grant the patent within three years ofthe filing date.
The guarantee took effect May 29, 2000. [Cases: Patents
133.]
patent watch. A system for continually monitoring pub
lished patent applications and newly issued patents in
a particular scientific or technological field to detect or
ensure against infringements.
patent writ. See WRIT.
pater (pay-tar), n. [Latin] Father.
paterfamilias (pay-tar-fa-mil-ee-as or pah-tJr-), n.
[Latin) Roman law. 'The male head of a family or house
hold, the senior ascendant male; esp., one invested with
potestas (power) over another. -Also termed homo sui
juris. See patria potestas under POTESTAS.
paternal, adj. (15c) Of, relating to, or coming from one's
father <paternal property>. Cf. MATERNAL. patient's bill of rights
paternalism, n. (1873) A government's policy or practice
of taking responsibility for the individual affairs of its
citizens, esp. by supplying their needs or regulating
their conduct in a heavyhanded manner. paternal
istic, adj.
paternal line. See LINE.
paternal-line descent. See DESCENT.
paternal property. See PROPERTY.
paterna paternis (pa-t.u-n;:> p;:>-t3r-nis). [Law Latin]
Hist. Goods acquired through the father descend to
those connected with him. The phrase invoked the
distinction between the succession of consanguinean
half-brothers and uterine half-brothers. Ct: MATERNA
MATERNIS.
paternity (pa-t<Jr-ni-tee). (I5c) 1. The state or condition
ofbeing a father, esp. a biological one; fatherhood. Cf.
FILIATION. [Cases: Children Out-of-Wedlock C= 1.) 2.
ATTRIBUTION RIGHT.
paternity action. See PATERNITY SUIT.
paternity presumption. See PRESUMPTION OF PATER
NITY.
paternity suit. (1945) A court proceeding to determine
whether a person is the father of a child (esp. one born
out of wedlock), usu. initiated by the mother in an
effort to obtain child support. -Also termed paternity
action; parentage action; bastardy proceeding; bastardy
process. [Cases: Children Out-of-Wedlock c-~30.)
paternity test. (1926) A test, usu. involving DNA iden
tification or tissue-typing, for determining whether a
given man is the biological father of a particular child.
See DNA IDENTIFICATION; HUMAN-LEUKOCYTE ANTIGEN
TEST; BLOOD-GROUPING TEST. [Cases: Children Out-of-
Wedlock 58.)
paterpatriae (pay-tar pay-tree-ee orpa-tree-ee). [Latin]
Father of the country. See PARENS PATRIAE.
pathological intoxication. See INTOXICATION.
pathology (pa-thol-a-jee), n. (l7c) The branch of medical
study that examines the origins, symptoms, and nature
of diseases. -pathological (path-<l-loj-i-k<ll), adj.
pathologist (p<l-thol-a-jist), n.
patiens (pay-shee-enz), n. [Latin] A person who suffers
or permits; the passive party in a transaction. Cf. AGENS
(1).
patient, n. A person under medical or psychiatric care.
[Cases: Health C='576.]
patient-litigant exception, (1951) An exemption from
the doctor-patient privilege, whereby the privilege is
lost when the patient sues the doctor for malpractice.
[Cases: Privileged Communications and Confidential
ity
patient-physician privilege. See doctor-patient privilege
under PRIVILEGE b).
patient's bill of rights. (1973) A general statement of
patient rights voluntarily adopted by a healthcare
provider or mandated by statute, covering such matters
as access to care, patient dignity and confidentiality,
personal safety, consent to treatment, and explanation
ofcharges. [Cases: Health (:::>582.]
pat. pend. abbr. PATENT PENDING.
patria (pay-tree-a or pa-tree-d), n. [Latin] 1. Roman
law. The fatherland; a person's home area. 2. Hist. The
country or the area within it, such as a county or neigh
borhood. 3. Hist. A jury, as when a defendant "puts
himself upon the country" (ponit se super patriam).
See CONCLUSION TO THE COUNTRY; GOING TO THE
COUNTRY; PAYS.
"Though our Latin uses parria, our French uses pays, which
descends from Latin pagus. The 'country' of this formula
is not our father-land but 'the country-side.'" 2 Frederick
Pollock & Frederic W. Maitland, The History of English Law
Before the Time of Edward 1624 n.l (2d ed, 1899),
patria potestas. See POTESTAS.
patriation. Canadian law. The process of transferring
constitution-related legislation or documents from
a former colonial power to a nation that was once a
dependency ofthat power.
"The word 'patriation' is a Canadian neologism that
describes the bringing of the Canadian Constitution to
Canada, Although this may sound strange to non-Canadian
readers, Canada's formal Constitution was, before 1982, to
be found in a U.K. statute. Therefore, only the U.K. Parlia
ment was competent to amend it and to formally terminate
its authority over future constitutional amendments. As a
U. K. statute, the Canadian Constitution had never been
in Canada. Therefore, it could not be 'repatriated.' Hence
the use of the word 'patriation.'" Jean-Francois Gaudreault
Desbiens, The Quebec Secession Reference and the Judicial
Arbitration ofConflicting Narratives About Law, Democracy,
and Identity, 23 Vt. L. Rev, 793, 807 n.43 (1999).
patrician (p;l-trish-;m), n. Roman law. One of a privi
leged class ofRoman citizens, as contrasted with plebe
ians. -Originally probably the rank was only by birth.
They monopolized all the priesthoods and probably
their class was defined by religious prerogatives, but
membership in the senate was not confined to patri
cians. They lost their monopolies by B.C. 300, but one
consul continued to be a patrician, and they held at
least half the priestly offices. Emperors could and did
confer patrician status on favored individuals. The
hereditary patricians disappeared in the third century
A.D., but later emperors revived the title as a personal
honor for faithful service.
patricide (pa-trd-sId), n, (l6c) 1. The act of killing one's
own father. 2. One who kills his or her father. Cf. PAR
RICIDE. patricidal, adj.
patrimonial (pa-trd-moh-ne |
. Cf. PAR
RICIDE. patricidal, adj.
patrimonial (pa-trd-moh-nee-JI), adj. Of or relating to
an inheritance, esp. from a male ancestor.
patrimonio ejus abest (pa-trd-moh-nee-oh ee-jJs ab-est).
[Latin] Hist. That which is wanting from a person's
estate . The phrase includes items held by one person
but due to another, such as stolen goods or money for
an unpaid debt.
patrimonium (pa-trJ-moh-nee-am), n. [Latin] Roman
law. Property that is capable ofbeing inherited; private
property. Also termed patrimony. patrimony (pa-tr;l-moh-nee). (l4c) 1. An estate inherited
from one's father or other ancestor; legacy or heritage.
2. Civil law. All of a person's assets and liabilities that
are capable ofmonetary valuation and subject to execu
tion for a creditor's benefit. 3. PATRIMONIUM.
Patriot Act. See USA PATRIOT ACT.
patron. (ISc) 1. A regular customer or client ofa business.
2. A licensee invited or permitted to enter leased land
for the purpose for which it is leased. 3. A person who
protects or supports some person or thing.
patronage (pay-trd-nij). (16c) 1. The giving of support,
sponsorship, or protection. 2. All the customers ofa
business; clientele. 3. The power to appoint persons
to governmental positions or to confer other political
favors. -Also termed (in sense 3) political patronage.
See SPOILS SYSTEM. [Cases: Officers and Public Employ
ees
patronizing a prostitute. (1956) 'The offense ofrequest
ing or securing the performance of a sex act for a fee;
PROSTITUTION. Cf. SOLICITATION (3). (Cases: Prostitu
tion 16.]
patron us (pJ-troh-n;}s), n. [Latinl1. Roman law. Someone
who had manumitted a slave, and was therefore entitled
to certain services from the slave. 2. ADVOWEE. PI.
patroni (pJ-troh-m).
patruus (pa-troo-as), n. [Latin] Roman & civil law. A
father's brother; a paternal uncle.
patruus magnus (pa-troo-<3s mag-nds), n. [Latin] Roman
& civil law. A grandfather's brother; a great-unde.
patruus maximus (pa-troo-;ls mak-S;l-m;}s). See ABPA
TRUUS.
pattern, n. (1883) A mode ofbehavior or series of acts
that are recognizably consistent <a pattern of racial
discrimination>.
pattern jury charge. See model jury instruction under
JURY INSTRUCTION.
pattern jury instruction. See model jury instruction
under JURY INSTRUCTION.
pattern of racketeering activity. (1972) Two or more
related criminal acts that amount to, or pose a threat of,
continued criminal activity. -This phrase derives from
the federal Racketeer Influenced and Corrupt Orga
nizations Act. See RACKETEERING. (Cases: Racketeer
Influenced and Corrupt Organizations (:::>24,104.]
pattern-or-practice case. A lawsuit, often a class action,
in which the plaintiff attempts to show that the defen
dant has systematically engaged in discriminatory
activities, esp. by means of policies and procedures.
Typically, such a case involves employment discrimi
nation, housing discrimination, or school segregation.
A plaintiff must usu. show that a defendant's behavior
forms a pattern of actions or is embedded in routine
practices but inferences ofexecutive or official complic
ity may be drawn from a consistent failure to respond to
complaints or implement corrective measures. [Cases:
Civil Rights (:::> 1033(1), 1074, 1139.]
1243
pattern similarity. See comprehensive nonliteral similar
ity under SIMILARITY.
paucital (paw-si-tal), adj. Rare. See IN PERSONAM.
Pauline privilege. Eccles. law. The doctrine that a
baptized person's marriage to a never-baptized person
may be dissolved under certain circumstances, when
dissolution is beneficial to the Roman Catholic Church.
The privilege is ordinarily exercised when (1) the
marriage was valid, (2) the baptized spouse now wishes
to marry a Catholic, and (3) at the time ofthe marriage,
both parties were unbaptized in any faith. Before the
privilege can be exercised, (1) the unbaptized spouse
must have deserted the baptized spouse without just
cause, (2) the unbaptized spouse must still be unbap
tized, (3) the baptized spouse must make the proper
appeals to the Church, and (4) the Church must rule
that the privilege is exercisable. There is uncertainty
about the extent of the privilege. Cf. PETRINE PRIVI
LEGE.
pauper. (16c) A very poor person, esp. one who receives
aid from charity or public funds; INDIGENT. See IN
FORMA PAUPERIS. [Cases: Social Security and Public
Welfare
pauperies (paw-par-eez), n. [Latin "impoverishment"]
Roman law. Damage done by a domesticated four
footed animal. The animal's owner was liable for the
damage. See actio de pauperie under ACTIO.
pauper's affidavit. See poverty affidavit under AFFIDA
VIT.
pauper's oath. See OATH.
pawn, n. (15c) 1. An item of personal property depos
ited as security for a debt; a pledge or guarantee . In
modern usage, the term is usu. restricted to the pledge
of jewels and other personal chattels to pawnbrokers
as security for a small loan. 2. The act of depositing
personal property in this manner. 3. The condition of
being held on deposit as a pledge. 4. PIGNUS (1). Cf.
BAILMENT (1); PIGNUS (4). pawn, vb.
pawnbroker, n. One who lends money, usu. at a high
interest rate, in exchange for personal property that
is deposited as security by the borrower. [Cases:
Consumer Credit c;::~,5.] pawnbroking, n.
pawnee. One who receives a deposit ofpersonal property
as security for a debt. [Cases: Consumer Credit (;d
5.)
pawnor. One who deposits an item ofpersonal property
as security for a debt. Also spelled pawner. [Cases:
Consumer Credit
pax regis (paks ree-jis), n. [Latin "the king's peace"] Hist.
1. The government's guarantee of peace and security
of life and property to all within the law's protection.
2. VERGE (1).
payable, adj. (14c) (Of a sum of money or a negotiable
instrument) that is to be paid . An amount may be
payable without being due. Debts are commonly
payable long before they fall due. payment
payable after sight. (18c) Payable after acceptance or
protest of nonacceptance. See sight draft under DRAFT.
[Cases: Bills and Notes (;d129(3).]
payable on demand. (17c) Payable when presented or
upon request for payment; payable at any time. lCases:
Bills and Notes (;d129(3).]
payable to bearer. (I8c) Payable to anyone holding the
instrument. [Cases: Bills and Notes (;:::~21O, 427(1).]
payable to order. (l7c) Payable only to a specified payee.
[Cases: Bills and Notes ('~427.]
payable, n. See account payable under ACCOUNT.
payable date. See DATE.
pay any bank. A draft indorsement that permits only
banks to acquire the rights of a holder until the draft
is either returned to the customer initiating collection
or specially indorsed by a bank to a person who is not a
bank. UCC 4-20l(b). [Cases: Banks and Banking
158; Bills and Notes <8::::> 190.]
payback method. An accounting procedure that
measures the time required to recover a venture's initial
cash investment.
payback period. The length of time required to recover
a venture's initial cash investment, without accounting
for the time value of money.
paydown, n. A loan payment in an amount less than the
total loan principal.
payee. (18c) One to whom money is paid or payable; esp.,
a party named in commercial paper as the recipient of
the payment. Cf. PAYOR.
payer. See PAYOR.
pay-if-paid clause. See CLAUSE.
paying quantities. Oil & gas. An amount of mineral pro
duction from a single well sufficient to justify a rea
sonably prudent operator to continue producing from
that welL. Most jurisdictions interpret the language
"for so long thereafter as oil and gas is produced" in
habendum clauses to mean so long as paying quantities
are produced. See HABENDUM CLAUSE. [Cases: Mines
and Minerals (;d78.l(8).J
payment. (I4c) 1. Performance of an obligation by
the delivery of money or some other valuable thing
accepted in partial or full discharge of the obligation.
[Cases: Payment G':::C 1.) 2. The money or other valuable
thing so delivered in satisfaction of an obligation.
advance payment. (16c) A payment made in anticipa
tion of a contingent or fixed future liability or obli
gation.
balloon payment. (1935) A final loan payment that is
usu. much larger than the preceding regular payments
and that discharges the principal balance ofthe loan.
See balloon note under NOTE (1).
conditional payment. (17c) Payment of an obligation
only on condition that something be done . Gen
erally, the payor reserves the right to demand the
payment bond 1244
payment back if the condition is not met. [Cases:
Payment
constructive payment. (1827) A payment made by
the payor but not yet credited by the payee. -For
example, a rent check mailed on the first of the month
is a constructive payment even though the landlord
does not deposit the check until ten days later.
direct payment. (18c) 1. A payment made directly to
the payee, without using an intermediary, such as a
child-support payment made directly to the obligee
parent rather than through the court. 2. A payment
that is absolute and unconditional on the amount, the
due date, and the payee.
down payment. (1926) The portion of a purchase
price paid in cash (or its equivalent) at the time the
sale agreement is executed. Cf. BINDER (2); EARNEST
MONEY. [Cases: Vendor and Purchaser C=:>69.1,
334(1).]
indefinite payment. 1. A stream of payments with no
termination date, or a single payment with no speci
fied due date. 2. A payment that does not specify to
which debt it should be applied when it is made to a
single creditor who holds several ofthe payor's debts.
[Cases: Payment C=:>39-46.]
installment payment. One of a series of periodic
payments made under an installment plan. See
INSTALLMENT SALE. [Cases; Sales (;=,192.]
involuntary payment. (18c) A payment obtained by
fraud or duress. [Cases: Payment C='86, 87.]
lump-sum payment. (1914) A payment of a large
amount all at once, as opposed to a series ofsmaller
payments over time. Cf. periodic payment.
part payment. A buyer's delivery of money or other
thing ofvalue to the seller, and its acceptance by the
seller, when the money or the value ofthe thing does
not equal the full sum owed. [Cases: Sales (;=,202(7);
Vendor and Purchaser C=:> 184.]
periodic payment. One of a series of payments made
over time instead ofa one-time payment for the full
amount. Cf. lump-sum payment.
two-party payment. A single payment made by check
to two people, usu. for the sum of the amount due to
each person.
unofficious payment. A payment made by a person who
has an interest in seeing that it should be made.
payment bond. See BOND (2).
payment date. See DATE.
payment in due course. (1816) A payment to the holder
ofa negotiable instrument at or after its maturity date,
made by the payor in good faith and without notice
of any defect in the holder's title. See HOLDER IN DUE
COURSE.
payment intangible. See INTANGIBLE.
payment into court. (1829) A party's money or property
deposited with a court for distribution after a proceed
ing according to the parties' settlement or the court's order. See INTERPLEADER. [Cases: Deposits in Court
payoff. See KICKBACK.
payola (pay-oh-I;}). (1937) An indirect and secret payment
for a favor, esp. one relating to business; a bribe.
pay-on-death account. See ACCOUNT.
pay-on-death bank account. See pay-an-death account
under ACCOUNT.
payor. (l6c) One who pays; esp., a person responsible for
paying a negotiable instrument. Also spelled payer.
See DRAWEE; PAYEE.
payor bank. See BANK.
pay-or-play contract. See CONTRACT.
payout period. The time required for an asset to produce
enough revenue to pay back the initial investment;
esp., in oil-and-gas law, the time required for a well to
produce a sufficient amount ofoil or gas to pay back the
investment in the well.
payout ratio. The ratio between a corporation's divi
dends per share and its earnings per share. Cf. COM |
payout ratio. The ratio between a corporation's divi
dends per share and its earnings per share. Cf. COM
MON-STOCK RATIO.
payroll. 1. A list ofemployees to be paid and the amount
due to each ofthem. 2. The total compensation payable
to a company's employees for one pay period.
payroll tax. See TAX.
pays (payor pays), n. [Law French] The country; a jury.
See PATRIA.
pay-when-paid clause. See CLAUSE.
PBGC. abbr. PENSION BENEFIT GUARANTY CORPORA
TION.
PBS. abbr. 1. PUBLIC BUILDINGS SERVICE. 2. Public
Broadcasting Service.
P.C. abbr. l. See professional corporation under CORPO
RATION. 2. POLITICAL CORRECTNESS. 3. PRIVY COUN
CILLOR.
PCA. abbr. POSSE COMITATL'S ACT.
PCR action. See POSTCONVICTION-RELIEF PROCEED
ING.
PCT. abbr. PATENT COOPERATION TREATY.
PCT application. See international application under
PATENT APPLICATION.
PCT filing. See international application under PATENT
APPLICATION.
PCT filing date. Patents. The date of an international
application under the Patent Cooperation Treaty.
Also termed international filing date. See PATENT
COOPERATION TREATY; PCT FILING.
P.D. abbr. 1. PUBLIC DEFENDER. 2. Police department.
PDA. See PREG~ANCY-DISCRIMINATION ACT.
peace, n. 1. A state of public tranquility; freedom from
civil disturbance or hostility <breach of the peace>. 2.
The termination or absence ofarmed conflict between
1245
nations. See peace treaty under TREATY. -peaceable,
adj. peaceful, adj.
armedpeace. A situation in which two or more nations,
while at peace, are actually armed for possible or
probable hostilities.
peace, justice of the. See JUSTICE OF THE PEACE.
peaceable possession. See POSSESSION.
peace bond. See BOND (2).
Peace Corps. An independent federal agency that
promotes peace and friendship in the world by sending
volunteers to other countries to work in education,
agriculture, health, small-business development,
urban development, the environment, and information
technology. -The agency was established by the Peace
Corps Act of 1961 and became independent in 1988.
peacemaker's court. See COURT.
peace officer. A civil officer (such as a sheriff or police
officer) appointed to maintain public tranquility and
order; esp., a person designated by public authority to
keep the peace and arrest persons guilty or suspected
of crime. _ This term may also include a judge who
hears criminal cases or another public official (such as
a mayor) who may be statutorily designated as a peace
officer for limited purposes. Also termed officer of
the peace; conservator ofthe peace. [Cases; Municipal
Corporations (;::::;, 180(1).]
Peace ofGod and the church. Hist. The cessation ofliti
galion between terms and on Sundays and holidays.
peacetime. A period in which a country has declared
neither a war nor a national emergency, even if the
country is involved in a conflict or quasi-conflict.
peace treaty. See TREATY (1).
peace warrant. See WARRANT (1).
peak demand. The point (during some specified period)
at which customer use results in the highest level of
demand for a utility.
peccavi (pe-kay-vI or pe-kah-vee), n. [Latin "I have
sinned"] An acknowledgment or confession of guilt
peculation (pek-y;l-lay-sh;m), n. (l7c) Embezzlement,
esp. by a public officiaL Cf. DEPECULATION. [Cases:
Officers and Public Employees 12L] peculate
(pek-Y;l-layt), vb. peculative (pek-YJ-I;Hiv), adj.
peculator (pek-p-lay-tJr), n.
peculatus (pek-ya-Iay-tas), n. [Latin] Roman law. The
offense of stealing or embezzling public funds; pecu
lation. Cf. FURTUM (1).
peculiar, adj. Special; particular <peculiar benefit>.
peculiar, n, Hist. Eccles. law. A district, parish, chapel,
or church that was not subject to a bishop's jurisdic
tion. -Peculiars were created, usu. under papal author
ity, to limit a bishop's power. There were several types,
including royal peculiars (e.g., the Chapel Royal at St.
James's Palace or S1. George's in Windsor), peculiars
of the Archbishop of Canterbury, and peculiars of
bishops and deans. The jurisdiction and privileges of pecuniary loss
the peculiars were abolished by various statutes in the
19th century.
peculiar benefit. See special benefit under BENEFlT.
peculiar-risk doctrine. (1958) The principle that an
employer will be liable for injury caused by an inde
pendent contractor if the employer failed to take rea
sonable precautions against a risk that is peculiar to the
contractor's work and that the employer should have
recognized, -Also termed peculiar-risk exception.
[Cases: Labor and Employment (;::.)3156.]
peculium (pi-kyoo-Iee-Jm), n. [Latin] Roman law.
Property or money given by the head of a household
to a son or slave, to be used at that person's discretion
for living expenses or business transactions; property
at the disposal of the slave or son-in-power.
peculium adventitium. See ADVENTITIOUS PROPERTY,
peculium profectitium. See PROFECTITIUM PECULIUM.
pecune. [Origin unknown] Hist. CRIB,
pecunia (pi-kyoo-nee-;}), n. [Latin] Hist. 1. Money. 2.
Real or personal property.
pecunia certa (pi-kyoo-nee-;} s;}r-tJ). [Latin] A definite
sum of money.
pecunia constituta (pi-kyoo-nee-J kon-sti-t[y]oo-tJ).
[Latin "fixed sum of money"] Roman law. See pactum
de constituto under PACTUM.
pecunia non numerata (pi-kyoo-nee-J non nly]oo-m;}
ray-tJ), [Latin "money not paid"] Roman law. A defense
that even though defendant acknowledged receiv
ing money, it had not in fact been paid. Cf. exceptio
i pecuniae non numeralae under EXCEPTIO.
pecunia numerata (pi-kyoo-nee-a n[y]oo-mJ-ray-tJ).
[Latin] Hist. Money numbered or counted out; money
given to pay a debt.
pecuniary (pi-kyoo-nee-er-ee), adj. (l6c) Ofor relating
to money; monetary <a pecuniary interest in the
lawsuit>.
pecuniary ability. Income from any source or sources
sufficient to meet or pay an obligation, or for some other
purpose, such as providing suitable maintenance for
a spouse.
pecuniary benefit. See BENEFIT.
pecuniary bequest. See BEQUEST.
pecuniary cause. Eccles. law. A lawsuit maintainable in
an ecclesiastical court to redress an injury relating to
the church, such as a parishioner's failure to pay a tithe
to a parson.
pecuniary damages. See DAMAGES.
pecuniary devise. See DEVISE.
pecuniary gain. See GAIN (1).
pecuniary injury. See INJURY.
pecuniary interest. Seefinancial interest under INTEREST
(2).
pecuniary legacy. See LEGACY.
pecuniary loss. See LOSS.
pecunia trajectitia (pi-kyoo-nee-d traj-ek-tish-ee-d).
[Latin "money conveyed overseas"] Roman law. Money
loaned in connection with the transport of goods
by ship, with the lender bearing the risk of loss. See
NAUTlCUM FENDS.
pedage (ped-ij). Hist. Money paid as a toll to travel
through another's land. -Also termed paage;
pedagium.
pedagium (pi-day-jee-dm). [Law Latin] See PEDAGE.
pedal possession. See POSSESSION.
pedaneus (pi-day-nee-ds), n. & adj. [Latin] Roman law.
A judge who sat at the foot of the tribunal (Le., in the
lowest seat) ready to try minor cases at the command
ofthe magistrate; an assistant judge.
pederasty (ped-dr-as-tee), n. (17c) Anal intercourse
between a man and a boy . Pederasty is illegal in all
states. Cf. SODOMY. [Cases: SodomyC=> 1.]-pederast
(ped-d-rast), n.
pedigree. A history of family succession; ancestry or
lineage.
pedis abscissio (pee-dis or ped-is ab-sish-ee-oh). [Latin
"cutting off a foot"] Hist. Punishment by cutting off
the offender's foot.
pedis positio (pee-dis or ped-is pd-zish-ee-oh). [Latin
"the placement of the foot"] Hist. A putting or placing
of the foot. This term denoted possession of land by
actual entry.
pedis possessio. See POSSESSIO.
pedis possessio doctrine (pee-dis or ped-is pd-zes[hJ
ee-o). [Latin "possession-of-a-foot doctrine") The prin
ciple that a prospector working on land in the public
domain is entitled to freedom from fraudulent or
forcible intrusions while actually working on the site.
[Cases: Mines and Minerals C=>27(l).]
pedophile. One who engages in pedophilia.
pedophilia. (1906) 1. A sexual disorder consisting in the
desire for sexual gratification by molesting children,
esp. prepubescent children. 2. An adult's act of child
molestation . Pedophilia can but does not necessarily
involve intercourse. The American Psychiatric Asso
ciation applies both senses to perpetrators who are at
least 16 years old and at least five years older than their
victims. Cf. PEDERASTY.
Peeping Tom. (18c) A person who spies on another
(as through a window), usu. for sexual pleasure;
VOYEUR. -Also termed peeper. [Cases: Disorderly
Conduct C=> 123.]
peer, n. 1. A person who is of equal status, rank, or char
acter with another.
"The commonalty, like the nobility, are divided into several
degrees; and, as the lords, though different in rank, yet all
of them are peers in respect of their nobility, so the com
moners, though some are greatly superior to others, yet all
are in law peers, in respect of their want of nobility ....' 1
William Blackstone, Commentaries on the Laws ofEngland
391 (1765). 2. A member ofthe British nobility (such as a duchess,
marquis, earl, viscount, or baroness). -peerage (peer
ij), n.
'The Crown has power to create any number of peers and
of any degree. In modern practice the power is exercised
on the advice of the Prime Minister and the honour is most
commonly a reward for political services. Peerages can
be, and have been, conferred for party political reasons;
12 were created in 1712 to save the government, and 16
to help pass the Reform Bill in 1832. In 1832 and 1911 the
Opposition of the House of Lords was overcome by the
threat to create enough peers to secure a majority....
The main privilege of a peer is to sit and vote in the House
of Lords." David M. Walker, The Oxford Companion to Law
942 (1980).
peer-reviewed journal. (1980) A publication whose
practice is to forward submitted articles to disinterested
experts who screen them for scholarly or scientific reli
ability so that articles actually published have already
withstood expert scrutiny and comment.
peer-review organization. (1978) A governmental
agency that monitors health-regulation compliance
by private hospitals requesting public funds (such as
Medicare payments). -Abbr. PRO. [Cases: Health
peer-review privilege. See PRIVILEG E (3).
peers of fees. Rist. Vassals or tenants of the same lord
who judged disputes arising out of fees.
peine forte et dure (pen for tay door or payn fort ay
dyoor). [French "strong and hard punishment") Hist.
The punishment of an alleged felon who refused to
plead, consisting of pressing or crushing the person's
body under heavy weights until the accused either
pleaded or died.
"In all other felonies, however, the punishment of peine
forte et dure was, until lately, denounced as the conse
quence of an obstinate silence. The greatest caution and
deliberation were indeed to be exercised before it was
resorted to; and the prisoner was not only to have 'trina
admonitio,' but a respite of a few hours, and the sentence
was to be distinctly read to him, that he might be fully
aware of the penalty he was incurring." 1 Joseph Chitty,
A Practical Treatise on the Criminal Law 425-26 (2d ed.
1826).
"In old English law, a person charged with felony who,
refusing to accept jury trial, was pressed to death (peine
forte et dure), was not regarded as committing suicide, so
that he did not forfeit his property." Glanville Williams, The
Sanctity ofLife and the Criminal Law 270 n.4 (1957).
pell. See CLERK OF THE PELLS.
pellex (pel-eks). |
(1957).
pell. See CLERK OF THE PELLS.
pellex (pel-eks). n. [Latin] Roman law. A concubine.
penal (pee-ndl), adj. (15c) Of, relating to, or being a
penalty or punishment, esp. for a crime.
"The general rule is that penal statutes are to be construed
strictly. By the word 'penal' in this connection is meant not
only such statutes as in terms impose a fine, or corporal
punishment, or forfeiture as a consequence of violating
laws, but also all acts which impose by way of punish
ment damages beyond compensation for the benefit of the
injured party, or which impose any special burden, or take
away or impair any privilege or right." William M. Lile et aI.,
BriefMaking and the Use ofLaw Books 344 (3d ed. 1914).
"The word penal connotes some form of punishment
imposed on an individual by the authority of the state.
1247
Where the primary purpose of a statute is expressly
enforceable by fine, imprisonment, or similar punish
ment the statute is always construed as penal." 3 Norman
J. Singer, Sutherland Statutes and Statutory Construction
59.01, at 1 (4th ed. 1986).
penal action. See ACTION (4).
penal bill. See penal bond under BOND (2).
penal bond. See BOND (2).
penal clause. See PENALTY CLAUSE.
penal code. (1Sc) A compilation of criminal laws, usu.
defining and categorizing the offenses and setting forth
their respective punishments. -Also termed criminal
code. See MODEL PENAL CODE.
penal colony. A remote place of detention for convicts
and political prisoners, usu. in an isolated part of a
nation or in a nation's extraterritorial holdings . His
torical examples include the Soviet Union's gulags in
Siberia and France's penal colony on Devil's Island off
the coast ofGuiana.
penal custody. See CUSTODY (1).
penal institution. See PRISON.
penal law. 1. See penal statute under STATUTE. 2. See
CRIMINAL LAW.
penal liability. See LIABILITY.
penal redress. See REDRESS.
penal sanction. See criminal sanction under SANCTION.
penal servitude. Confinement in prison with hard labor.
See HARD LABOR. Cf. IMPRISONMENT.
penal statute. See STATUTE.
penal sum. (l7c) Ihe monetary amount specified as a
penalty in a penal bond. See penal bond under BOND
(2).
penalty. (lSc) 1. Punishment imposed on a wrongdoer,
usu. in the form of imprisonment or fine; esp., a sum
ofmoney exacted as punishment for either a wrong to
the state or a civil wrong (as distinguished from com
pensation for the injured party's loss) . Ihough usu.
for crimes, penalties are also sometimes imposed for
civil wrongs. [Cases: Penalties
civil penalty. (l7c) A fine assessed for a violation of a
statute or regulation <the EPA levied a civil penalty
of$10,000 on the manufacturer for exceeding its pol
lution limits>.
statutory penalty. (ISc) A penalty imposed for a statu
tory violation; esp., a penalty imposing automatic lia
bility on a wrongdoer for violation ofa statute's terms
without reference to any actual damages suffered.
[Cases: Penalties
2. An extra charge against a party who violates a con
tractual provision.
prepayment penalty. (1948) A charge assessed against
a borrower who elects to payoff a loan before it is due.
[Cases: Bills and Notes C:-c429; Mortgages <8='29S(1);
Usury C-::::61.J pendent
3. Excessive stipulated damages that a contract purports
to impose on a party that breaches. If the damages
are excessive enough to be considered a penalty, a court
will usu. not enforce that particular provision of the
contract. Some contracts specify that a given sum of
damages is intended "as liquidated damages and not as
a penalty" -but even that language is not foolproof.
[Cases: Damages C==>SO.j4. PENALTY CLAUSE.
"A penalty is a sum which a party ... agrees to payor
forfeit in the event of a breach, but which is fixed, not
as a pre-estimate of probable actual damages, but as a
punishment, the threat of which is designed to prevent
the breach, or as security, where the sum is deposited or
the covenant to pay is joined in by one or more sureties,
to insure that the person injured shall collect his actual
damages. Penalties ... are not recoverable or retainable
as such by the person in whose favor they are framed ...."
Charles T. McCormick, Handbook on the Law of Damages
146, at 600 (1935).
penalty clause. (1843) A contractual provision that
assesses against a defaulting party an excessive
monetary charge unrelated to actual harm. Penalty
clauses are generally unenforceable. -Often short
ened to penalty_ -Also termed penal clause. Cf. LIQ
UIDATED-DAMAGES CLAUSE; LlMITATION-OF-REMEDIES
CLAUSE. [Cases: Damages C==>76, SO.)
"It not infrequently happens that contracts provide for what
is to happen in the event of a breach by the parties, or
by one of them. Such provisions may be perfectly simple
attempts to avoid future disputes, and to quantify the
probable amount of any loss. That is unobjectionable.
But sometimes clauses of this kind are not designed to
quantify the amount of the probable loss, but are designed
to terrorize, or frighten, the party into performance. For
example, a contract may provide that the promisor is to
pay 5 on a certain event, but if he fails to do so, he must
then pay 500. Now a clause of that kind is called a penalty
clause by lawyers, and for several hundred years it has
been the law that such promises cannot be enforced. The
standard justification for the law here is that it is unfair
and unconscionable to enforce clauses which are designed
to act in terrorem." P.S. Atiyah, Promises, Morals, and Law
57-58 (1981)
penalty phase. (1959) The part of a criminal trial in
which the fact-finder determines the punishment for a
defendant who has been found guilty. -Also termed
sentencing phase. Cf. GUIl.T PHASE. [Cases: Sentencing
and Punishment C='325, 1774.)
penalty point. A punishment levied for a traffic offense
and accumulated on the driver's record . If a driver
receives a statutorily set number of points, the driver's
license may be restricted, suspended, or terminated.
[Cases: Automobiles 144.1(3).)
penance. Eccles. law. A punishment assessed by an eccle
siastical court for some spiritual offense.
pend, vb. (I8c) (Of a lawsuit) to be awaiting decision or
settlement.
pendency (pen-dan-see), n. (l7c) The state or condition
ofbeing pending or continuing undecided.
pendens. See LIS PENDENS.
pendent (pen-d,mt), adj. (ISc) 1. Not yet decided;
pending <a pendent action>. 2. Of or relating to
pendent jurisdiction or pendent-party jurisdiction
<pendent parties>. [Cases; Federal Courts 14.1.J
3. Contingent; dependent <pendent upon a different
claim>.
pendent-claim jurisdiction. See pendent jurisdiction
under JURISDICTION.
pendente lite (pen-den-tee iI-tee), adv. [Latin "while the
action is pending"] During the proceeding or litigation;
in a manner contingent on the outcome oflitigation.
Also termed lite pendente. Cf. LIS PENDENS.
pendente lite administration. See administration
pendente lite under ADMINISTRATION.
pendente processu (pen-den-tee pra-ses-[y]oo). [Law
Latin] Hist. During the pendency ofthe process.
pendentes fructus (pen-den-teez [frak-t;~sD. [Latin] Hist.
Hanging fruits . 'Ihese fruits -as distinguished from
fruits that have been gathered -must be restored to a
real owner who defeats the claims of a bona fide pos
sessor. -Sometimes shortened to pendentes.
pendente tutela (pen-den-tee t[y]oo-tee-l<l). [Latin] Hist.
During the tutory.
pendent jurisdiction. See JURISDICTION.
pendent-party jurisdiction. See JURISDICTION.
pendent-venue doctrine. The principle that once venue
is established for a federal claim, proof of venue for
additional federal claims, cross-claims, and counter
claims is unnecessary. [Cases: Federal Courts
pending, prep. (17c) 1. 'Ihroughout the continuance
of; during <in escrow pending arbitration>. 2. While
awaiting; until <the injunction was in force pending
trial>.
pending, adj. (l7c) 1. Remaining undecided; awaiting
decision <a pending case>. 2. Parliamentary law. (Of
a motion) under consideration; moved by a member
and stated by the chair as a question for the meeting's
consideration. See CONSIDERATION (2); ON THE FLOOR.
A motion may be immediately pending, meaning that
it is directly under consideration, being the last motion
stated by the chair and next in line for a vote; or it may
be pending subject to other motions of higher rank that
have taken precedence over it. See immediately pending
motion and pending motion under MOTION (2).
pending motion. See MOTION (2).
pending-ordinance doctrine. The principle that a
municipality may properly deny an application for a
property use that, although it would satisfy existing
law, would violate a law that is pending when the appli
cation is made. This doctrine was judicially created,
mainly to short-circuit landowners' attempts to cir
cumvent a new ordinance by applying for a noncon
forming use on the eve ofits approval. [Cases: Zoning
and Planning
penetration, n. l. Criminal law. The entry of the penis
or some other part of the body or a foreign object into
the vagina or other bodily orifice . This is the typical
meaning today in statutes defining sexual offenses.
Also termed intromission. See RAPE (1). [Cases: Rape 2. 'lbe depth reached by a bullet or other projec
tile in something against which the projectile is fired.
3. The act of piercing or passing something into or
through a body or object. -penetrate, vb.
penetration pricing. Pricing of a new product below its
anticipated market price to enter a market and capture
market share by breaking down existing brand loyal
ties.
penitentiary (pen-a-ten-sha-ree), n. (1807) A correc
tional facility or other place oflong-term confinement
for convicted criminals; PRISON. [Cases; Prisons
213.] -penitentiary, adj.
penitentiary misdemeanor. See serious misdemeanor
under MISDEMEANOR.
Pennoyer rule (p<'l-noY-<lr). (1968) The principle that
a court may not issue a personal judgment against a
defendant over whom it has no personal jurisdiction.
Pennoyer v. Neff, 95 U.S. 714 (1877). [Cases: Judgment
016.]
Pennsylvania rule. Torts. The principle that a tortfea
sar who violates a statute in the process of causing an
injury has the burden of showing that the violation
did not cause the injury. The Pennsylvania, 86 U.S.
(19 Wall.) 125, 136 (1874). [Cases: Collision 123;
Shipping (;:::;'86(2.3).]
penny stock. See STOCK.
penology (pee-nol-<'l-jee), n. (1838) The study of penal
institutions, crime prevention, and the punishment and
rehabilitation of criminals, including the art of fitting
the right treatment to an offender. Cf. CRIMINOLOGY.
penological (pee-n<l-loj-i-k<ll), ad}. -penologist (pee
nol-<'l-jist), n.
pen register. (1953) A mechanical device that logs dialed
telephone numbers by monitoring electrical impulses.
Because a pen register does not record the telephone
conversation, it may not constitute a Fourth Amend
ment search requiring a search warrant (though it does
need a court order). Some states, however, do consider
the use of a pen register invasive enough to require a
search warrant. Cf. WIRETAPPING. [Cases; Telecom
munications
pensio (pen-shee-oh), n. [Latin] Roman & civil law. A
payment for the use of a thing, such as rent for the use
of another's house.
pension. (16c) A fixed sum paid regularly to a person (or
to the person's beneficiaries), esp. by an employer as a
retirement benefit. Cf. ANNUITY (3). [Cases: Labor and
Employment C=419.]
vested pension. A pension in which an employee (or
employee's estate) has rights to benefits purchased
with the employer's contributions to the plan, even if
the employee is no longer employed by this employer
at the time of retirement. The vesting of qualified
pension plans is governed by ERISA. See EMPLOYEE
RETIREMENT INCOME SECURITY ACT. [Cases: Labor
and Employment
1249
Pension and Welfare Benefits Administration. A unit
in the U.S. Department of Labor that was responsi
ble for regulating employee pension plans under the
Employees Retirement I ncome Security Act (ERISA) |
was responsi
ble for regulating employee pension plans under the
Employees Retirement I ncome Security Act (ERISA)
and for enforcing the Act through its field offices. _ It
has been replaced by the Employee Benefits Security
Administration. Abbr. PWBA. [Cases: Labor and
Employment C:::>408.]
Pension Benefit Guaranty Corporation. A self-financ
ing federal corporation that guarantees payment of
pension benefits in covered benefit pension plans. -
Abbr. PBGC. [Cases: Labor and Employment
522.]
pensioner. A recipient or beneficiary of a pension plan.
[Cases: Labor and Employment C:::>S34.]
pension plan. 1. Under ERISA, any plan, fund, or
program established or maintained by an employer
or an employee organization that provides retire
ment income to employees or results in a deferral of
income by employees extending to the termination of
employment or beyond. 29 USCA 1002(2)(A). [Cases:
Labor and Employment C:::>419.] 2. Under the Internal
Revenue Code, an employer's plan established and
maintained primarily to provide systematically for the
payment ofdefinitely determinable benefits to employ
ees over a period ofyears, usu. for life, after retirement.
See EMPLOYEE RETIREMENT INCOME SECURITY ACT. Cf.
EMPLOYEE BENEFIT PLAN.
contributory pension plan. A pension plan funded by
both employer and employee contributions. [Cases:
Labor and Employment C=419.]
defined-benefit pension plan. A pension plan in which
an employer commits to paying an employee a specific
benefit for life beginning at retirement. -The amount
ofthe benefit is based on factors such as age, earnings,
and years ofservice. [Cases: Labor and Employment
(~422.]
defined-contribution pension plan. See defined-contri
bution plan under EMPLOYEE BENEFIT PLAN.
defined pension plan. A pension plan in which
the employer promises specific benefits to each
employee. Also termed fixed-benefit plan. (Cases:
Labor and Employment (>::>422.J
noncontributory pension plan. A pension plan funded
solely by the employer's contributions. [Cases: Labor
and Employment C:::>419.]
nonqualified pension plan. A deferred-compensa
tion plan in which an executive increases retirement
benefits by annual additional contributions to the
company's basic plan. [Cases: Labor and Employ
ment (;::)430.]
qualified pension plan. A pension plan that complies
with federal law (ERISA) and thus allows the
employee to receive tax benefits for contributions and
tax-deferred investment growth. - Often shortened
to qualified plan. [Cases: Labor and Employment C:::>
419,430.] peonage
top-hat pension plan. An unfunded pension plan
that is maintained by an employer primarily for the
purpose of providing deferred compensation for a
select group of managers or highly paid employees.
-Top-hat plans are generally not subject to the broad
remedial provisions of ERISA because Congress rec
ognized that certain individuals, by virtue of position
or compensation level, can substantially influence the
design or operation of their deferred -compensation
plans. -Often shortened to top-hat plan. [Cases:
Labor and Employment C:::>432.]
pension trust. See TRUST.
Pentagon Force Protection Agency. A unit in the U.S.
Department of Defense responsible for operating the
Pentagon police force and providing basic law enforce
ment and security for the Pentagon and other military
installations in the Washington, D.C. area. -The
Agency was formed after the Pentagon was attacked
on 11 September 2001. -Abbr. PFPA.
penumbra (pi-n3m-br;)), n. (18c) A surrounding area or
periphery of uncertain extent. In constitutional law,
the Supreme Court has ruled that the specific guaran
tees in the Bill of Rights have penumbras containing
implied rights, esp. the right ofprivacy. PI. penumbras,
penumbrae (pi-n3m-bree). -penumbral (pi-n3m
brdl), adj.
"Problems of fringe meaning are sometimes spoken of as
'problems of the penumbra', the point being that, in the
case of a great many words, there is no doubt about the
hard core of their meanings, but different views may well
be taken on the question whether the words are appli
cable to things or situations outside that hard core: Rupert
Cross, Statutory Interpretation 57 (1976).
penuria peritorum (p<l-nyoor-ee-a per-i-tor-<lm). [Latin]
Hist. A scarcity of (legally) skilled men. -The phrase
appeared in reference to the grantor's lack of proper
assistance in preparing and executing a conveyance.
penuria testium (p<l-nyoor-ee-;) tes-tee-<lm). [Latin] Hist.
A scarcity of witnesses.
"The disqualifications formerly attaching to witnesses,
and especially that of relationship, were sometimes disre
garded in occult or private facts, where there must, from
the nature of the case, be a scarcity of unexceptionable
witnesses .... It was not enough in this sense, to constitute
a penuria testium, to prove that the other eVidence was
scanty and defective; it had to be shown farther that the
penuria was necessarily occasioned by the very nature of
the question at issue." William Bell, Bell's Dictionary and
Digest ofthe Law ofScotland 798 (George Watson ed., 7th
ed. 1890).
peonage (pee-<l-nij), n. (1844) Illegal and involuntary
servitude in satisfaction of a debt. [Cases: Slaves (;::>
24.] -peon, n.
"Peonage, which is a term descriptive of a condition that
existed in Spanish America, and especially in Mexico, and
in the territory of New Mexico, and which may be defined
as the status or condition of compulsory service based
upon the indebtedness of the peon to the master, the basic
fact being the indebtedness, is abolished and prohibited by
an act of Congress which further declares that any statute,
resolution, regulation, ordinance, or usage of any territory
or state designed or operating to establish, maintain, or
enforce, directly or indirectly, the voluntary or involuntary
1250 people
service or labor of any persons as peons, in liquidation of
any debt or obligation, or otherwise, shall be null and void
[42 USCA 1994]." 45 Am. Jur. 2d Involuntary Servitude
and Peonage 10, at 935-36 (1969).
people. (usu. cap.) (180i) The citizens of a state as rep
resented by the prosecution in a criminal case <People
v. Snyder>.
people's court. (1912) 1. A court in which individuals
can resolve small disputes. See small-claims court under
COURT. [Cases: Courts ~174.LI [Cases: Courts
174.] 2. Hist. (cap.) In Nazi Germany, a tribunal that
dealt with political offenses . In German, Volksger
ichtshof
people-smuggling. The crime ofhelping a person enter a
country illegally in return for a fee. Cf. human traffick
ing under TRAFFICKING; SMUGGLING. [Cases: Aliens,
Immigration, and Citizenship ~776.]
peppercorn. A small or insignificant thing or amount;
nominal consideration <the contract was upheld despite
involving mere peppercorn>. See nominal consideration
under CONSIDERATION; peppercorn rent under RENT.
[Cases: Contracts ~54.]
peppercorn rent. See RENT.
per (pdr), prep. [Latin] (14c) 1. Through; by <the dissent,
per Justice Thomas>. 2. For each; for every <55 miles
per hour>. 3. In accordance with the terms of; accord
ing to <per the contract>.
per aequipollens (pdr ee-kwi-pol-enz). [Latin] Hist. By
an equivalent.
per aes et libram (pdr ees et h-brdm). [Latin] Roman
law. By bronze (or copper) and scales. The phrase
typically referred to the fictitious sale in a mancipation
during which the purchaser struck the scales with a
piece ofbronze or copper and then gave it to the seller
as a symbol ofthe price. See MANCIPATION.
per aHum stetit (pdr ay-ee-dm stet-it). [Latin] Hist. It was
owing to (something done by) another.
per ambages (pdr am-bay-jeez). [Latin] Hist. Indirectly;
evasively.
perambulation. The act or custom of walking around
the boundaries ofa piece ofland, either to confirm the
boundaries or to preserve evidence of them.
perambulatione facienda. See DE PERAMBULATIONE
FACIENDA.
per annum (pdr an-dm), adv. [Latin] (16c) By, for, or
in each year; annually <interest of eight percent per
annum>.
PIE ratio. abbr. PRICE-EARNINGS RATIO.
per autre vie. See PUR AUTRE VIE.
per aversionem (pdr d-vdr-zhee-oh-ndm). [Latin "for a
lump sum"] Roman 6-civil law. Ofor relating to a sale
in which goods are taken in bulk or land is bought by
estimation ofthe number ofacres. This type ofsale is
so called because the buyer "turns away" from a careful
scrutiny of the things purchased. "It is a fundamental principle, pervading everywhere the
doctrine of sales of chattels, that if the goods of differ
ent value be sold in bulk, and not separately, and for a
single price, or per aversionem, in the language of the
civilians, the sale is perfect, and the risk with the buyer;
but if they be sold by number, weight, or measure, the
sale is incomplete, and the risk continues with the seller,
until the speCific property be separated and identified." 2
James Kent, Commentaries on American Law *496 (George
Comstock ed., 11th ed. 1866).
per bouche (pdr boosh). [Law French] By the mouth;
orally.
per capita (pdr kap-i-td), adj. [Latin "by the head"] (17c)
1. Divided equally among all individuals, usu. in the
same class <the court will distribute the property to
the descendants on a per capita basis>. Cf. PER STIRPES.
[Cases: Descent and Distribution Wills
530.]
"Per capita means taking as an individual and not as a
representative of an ancestor. Suppose the testator ... with
three living children and three grandchildren who are the
issue of a deceased son, had desired and had so stated
in his will that his own children and the children of his
deceased son should share equally in the estate. In that
event the estate would be divided into six parts and each
of the three children and each of the three grandchildren
would receive an equal portion of the total estate namely,
onesixth." Gilbert Thomas Stephenson, Wills 30 (934).
per capita with representation. (1935) Divided equally
among all members of a class of takers, including
those who have predeceased the testator, so that no
family stocks are cut off by the prior death ofa taker.
For example, ifT (the testator) has three children
A, B, and C and C has two children but predeceases
T, C's children will still take C's share when T's estate
is distributed.
2. Allocated to each person; possessed by each indi
vidual <the average annual per capita income has
increased over the last two years>. per capita, adv.
per capita tax. See poll tax under TAX.
percentage depletion. Oil 6-gas. A method of allowing
a taxpayer who owns an economic interest in a pro
ducing oil or gas well to deduct a specified percentage
of the gross income from the well in lieu of depleting
the actual basis. 26 USCA 611. Cf. COST DEPLETION.
[Cases: Internal Revenue 03493.]
percentage game. See GAME.
percentage lease. See LEASE.
percentage-of-completion method. See ACCOUNTING
METHOD.
percentage order. See ORDER (8).
perception. 1. An observation, awareness, or realiza
tion, usu. based on physical sensation or experience;
appreciation or cognition . The term includes both the
actor's knowledge ofthe actual circumstances and the
actor's erroneous but reasonable belief in the existence
of nonexistent circumstances. 2. Roman & civil law.
The act oftaking into possession (as rents, profits, etc.),
esp. by a bona fide possessor or usufructuary. Also
termed (in Roman law) perceptio (p;}r-sep-shee-oh).
1251 perfect defense
percepti sed non consumpti (p<'lr-Sep-tI sed non
bn-samp-tI). [Latin] Hist. I;ruits gathered but not
consumed.
percipient witness. See WITNESS.
percolating water. See WATER.
per collationem bonorum (P<'lf k<'l-lay-shee-oh-n<'lm
b"-nor-,,m). [Latin] Scots law. By bringing goods
received into account (collation) . When heirs-at-Iaw,
or heirs who had received from a deceased ancestor
during the ancestor's lifetime, wished to share in the
legitim fund, they had to bring in (to collate) what they
had received before the legitim could be shared out. See
COLLATION (2).
per consequens (p<'lr kon-s<'l-kwenz). [Latin] By conse
quence; consequently.
per considerationem curiae (p<'lr k<'ln-sid-<'l-ray-shee-oh
n<'lm kyoor-ee-ee). [Law Latin] By the consideration of
the court.
per contra (P<'lf kon-tr<:1). [Latin] (16c) On |
of
the court.
per contra (P<'lf kon-tr<:1). [Latin] (16c) On the other hand;
to the contrary; by contrast.
per cur. abbr. Per curiam. See per curiam opinion under
OPINION (1).
per curiam (p<:1r kyoor-ee-am), adv. & adj. [Latin] (I5c)
By the court as a whole. [Cases: Courts (;::::>107.]
per curiam, n. See per curiam opinion under OPINION
(1).
per curiam opinion. See OPINION (1).
per diem (p<'lrdh}m or dee-am), adv. [Latin] (15c) By the
day; for each day. Cf. IN DIEM.
per diem, adj. (18c) Based on or calculated by the day
<per diem interest>.
per diem. n. (1812) 1. A monetary daily allowance, usu.
to cover expenses. 2. A daily fee.
perdonatio utlagariae (par-d<:1-nay-shee-oh <'It-l<'l-gair
ee-ee). [Law Latin "pardon ofoutlawry"] Hist. A pardon
given to a person outlawed for failing to obey a court's
summons . A person who voluntarily surrendered was
eligible for this type ofpardon.
perduellio (par-dlyJoo-el-ee-oh), n. [Latin "treason"]
Roman law. The crime of hostility to one's native
country; treasonous conduct, such as joining the enemy
or deserting the battlefield . This term corresponds
to the English phrase high treason. In the Roman
republic, several acts might constitute perduellio, such
as assuming regal power; trying to subvert, by violence,
the established form of government, esp. by foment
ing internal rebellion; and promoting the designs
of external foes. Perduellio was later absorbed into a
broader category ofcrimes against the state, the crimen
laesae majestatis. Also termed (in English) perduel
lion (p;3r-d[y]oo-el-Y<:1n). See CRIMEN MAJESTATIS.
perdurable (par-d[yJuur-a-b;3l), adj. (15c) (Of an estate in
land) lasting or enduring; durable; permanent. peregrinus (per+gn-n;3s), n. Roman law. A free person
who was not a Roman citizen; a free foreigner. PI. per
egrini.
perempt (p<:1r-empt), vb. 1. Civil law. To quash, do away
with, or extinguish. 2. Slang. To exercise a peremptory
challenge.
peremption (par-emp-shan), n. Civil law. A period of
time fixed by statute for the existence of a right. If
the right is not exercised during this period, it is extin
guished. Whereas prescription simply bars a specific
remedy, peremption bars the action itself. Cf. PRESCRIP
TION (1). See STATUTE OF REPOSE. [Cases; Limitation of
Actions 165.]
peremptoria litis et causae (par-emp-tor-ee-<'l II-tis et
kaw-zee). [Law Latin] Hist. Decisive of the suit and
cause. lne phrase appeared in reference to peremp
tory defenses, to which there could be no reply.
peremptory (p<'lr-emp-t;3-ree), adj. (15c) 1. Final; absolute;
conclusive; incontrovertible <the king's peremptory
order>. 2. Not requiring any shown cause; arbitrary
<peremptory challenges>.
peremptory, n. See peremptory challenge under CHAL
LENGE (2).
peremptory challenge. See CHALLENGE (2).
peremptory day. See DAY.
peremptory defense. See DEFENSE (1).
peremptory exception. See EXCEPTION (1).
peremptory instruction. See JURY INSTRUCTION.
peremptory mandamus. See MANDAMUS.
peremptory norm. See JUS COGENS (2).
peremptory plea. See PLEA (}).
peremptory rule. See RULE (1).
peremptory strike. See peremptory challenge under
CHALLENGE (2).
peremptory writ. See WRIT.
per eundem (p<:1r ee-an-d<:1m). [Latin] By the same . This
term often appears in the phrase per eundem in eadem
("by the same judge in the same case").
per expressum (p<:1r ek-spres-am). [Latin) Hist. Expressly;
explicitly.
perfas aut nefas (paf fas awt nee-fas). [Latin] Hist. By
lawful or unlawful means.
perfect (par-fekt), vb. (14c) To take all legal steps needed
to complete, secure, or record (a claim, right, or interest);
to provide necessary public notice in final conformity
with the law <perfect a security interest> <perfect the
title>. [Cases: Secured Transactions (;::;:>81.]
perfect attestation clause. (1875) A testamentary provi
sion asserting that all actions required to make a valid
testamentary disposition have been performed. [Cases:
Wills (;::::> 113,289,302(5).]
perfect competition. See COMPETITION.
perfect defense. See DEFENSE (1).
1252 perfect duty
perfect duty. See DUTY (1).
perfected security interest. See SECURITY INTEREST.
perfect equity. See EQUITY.
perfect grant. See GRANT.
perfecting amendment. See AMENDMENT (3).
perfect instrument. See INSTRUMENT (3).
perfection. Validation of a security interest as against
other creditors, usu. by filing a statement with some
public office or by taking possession of the collateraL
Cf. ATTACHMENT (4). [Cases: Secured Transactions
81-96,138-145.]
automatic perfection. Ibe self operative perfection of
a purchase-money security interest without filing or
without possession of the collateral. The security
interest is perfected simply by the attachment of the
security interest, without any additional steps. See
purchase-money security interest under SECURITY
INTEREST. [Cases: Secured Transactions C::='83,
146.]
temporary perfection. The continuous perfection of a
security interest for a limited period . For example,
a security interest in proceeds from the original
collateral is perfected for ten days after the debtor
receives the proceeds; the interest will become unper
fected after this ten-day period unless certain statu
tory requirements are met. On most instruments,
a secured party who advances new value under a
written security agreement obtains a 21-day perfec
tion period, even if the secured party does not file a
financing statement and the collateral remains with
the debtor. UCC 9-304(4). [Cases: Secured Transac
tions 168.]
perfect obligation. See OBLIGATION.
perfect ownership. See OWNERSHIP.
perfect right. See RIGHT.
perfect self-defense. See SELF-DEFENSE.
perfect tender. See TENDER (3).
perfect-tender rule. (1970) Commercial law. The princi
that a buyer may reject a seller's goods ifthe quality,
quantity, or delivery ofthe goods fails to conform pre
cisely to the contract . Although the perfect-tender
rule was adopted by the VCC ( 2-601), other Code
provisions such as the seller's right to cure after
rejection have softened the rule's impact. Cf. SUB
STANTIAL-PERFORMANCE DOCTRINE. [Cases: Sales C::='
177.]
"At common law, a buyer of goods possessed a legal
right to insist upon 'perfect tender' by the seller. If the
goods failed to conform exactly to the description in the
contract whether as to quality, quantity or manner of
delivery the buyer could reject the goods and rescind the
contract, which meant that the parties would be returned
to the positions they occupied before the contract was
entered into." Marvin A. Chireistein, Concepts and Case
Analysis in the Law ofContracts 112 (1990).
perfect title. See TITLE (2).
perfect trial. See TRIAL. perfect usufruct. See USUFRUCT.
perfect war. See WAR.
perfeloniam (p<:lr f<:l-loh-nee-<:lm). [Latin] Hist. With
criminal intent.
perficere susceptum munus (p<:lr-fis-<:lr-ee s<:l-sep-tam
myoo-nJs). [Latin] Scots law. To perform the duties of
an office undertaken . One assuming an office could
not then capriciously resign from the office. See REBUS
INTEGRlS.
perfidy (par-fa-dee). Int'llaw. A combatant's conduct
that creates the impression that an adversary is entitled
to, or is obliged to accord, protection under interna
tionallaw, when in fact the conduct is a ruse to gain
an advantage . Acts of perfidy include feign ing an
intent to negotiate under a flag of truce, or feigning
protected status by using signs, emblems, or uniforms
of the United Nations or of a neutral country.
per formam doni (par for-mam doh-nr). [Law Latin]
By the form of the gift; by the designation of the giver
rather than by operation oflaw.
performance, n. (16c) 1. The successful completion of
a contractual duty, usu. resulting in the performer's
release from any past or future liability; EXECUTION
(2). Also termed full performance. Cf. NONPERFOR
MANCE; MISPERFORMA~CE. [Cases: Contracts
275.]
defective performance. (1832) A performance that,
whether partial or full, does not wholly comply with
the contract. One example is late performance.
[Cases: Contracts C::='280(1), 302.]
future performance. (17c) Performance in the future
of an obligation that will become due under a
contract.
misperformance. See MISPERFORMANCE.
nonperformance. See NONPERFORMANCE.
partperformance. (I8c) 1. The accomplishment of some
but not all ofone's contractual obligations. [Cases:
ContractsC::=> 319.] 2. A party's execution, in reliance
on an opposing party's oral promise, ofenough ofan
oral contract's requirements that a court may hold the
statute offrauds not to apply. [Cases: Frauds, Statute
ofC:::>129.]3. PART-PERFORMANCE DOCTRINE.
specific performance. See SPECIFIC PERFORMANCE.
substantial performance. (18c) Performance of the
primary, necessary terms of an agreement. See SUB
STANTIAL-PERFORMANCE DOCTRINE. [Cases: Con
tracts C::='293.]
vicarious performance. Performance carried by an
employee, agent, or other nominee.
"It is necessary ... to distinguish between assignment
of a contractual liability and vicarious performance of a
contract. Normally a person who contracts to do something
must do it himself. But in the case of a duty of performance
which involves no personal element, so that it does not
matter to the other party who does the promised act, so
long as it is done in accordance with the contract, the party
liable may do it by a servant or agent or other nominee.
This is not an assignment of the contractual liability, for
1253 perimere causam
the original contractor remains liable and if the deputy has
done the work badly it is not the deputy but the contractor
himself who is answerable to the other party." 2 Stephen's
Commentaries on the Laws of England 76-77 (L. Crispin
Warmington ed., 21st ed. 1950).
2. The equitable doctrine by which acts consistent with
an intention to fulfill an obligation are construed to
be in fulfillment of that obligation, even if the party
was silent on the point. 3. A company's earnings. 4.
The ability of a corporation to maintain or increase
earnings.
performance bond. 1. A bond given by a surety to ensure
the timely performance ofa contract. -In major inter
national agreements, performance bonds are typically
issued by banks, but sometimes also by insurance com
panies. The face amount ofthe bond is typically 2%
of the value ofperformance, but occasionally as much
as 5%. [Cases: Principal and Surety ~'59-87; Public
Contracts C=4S.)2. A third party's agreement to guar
antee the completion of a construction contract upon
the default of the general contractor. Also termed
completion bond; surety bond; contract bond. Cf. com
mon-law bond under BOND (2). [Cases: Principal and
SuretyC=82.)
nonoperative performance bond. A performance bond
that is not currently in effect but is activated upon
the issuance of the buyer's letter of credit or other
approved financing.
operative performance bond. A performance bond that
has been activated by the issuance ofthe buyer's letter
of credit or other approved financing. [Cases: Public
Contracts
revolvingperformance bond. A performance bond that
is in effect on a continuing basis for the duration of
the contract, usu. plus an additional number of days
(often 45).
up-front performance bond. A performance bond
given before the issuance ofthe buyer's letter ofcredit
or other financing.
performance bonus. See BONUS.
performance contract. See CONTRACT.
performance fund. See MUTUAL FUND.
performance plan. A bonus compensation plan in
which executives are paid according to the company's
growth.
performance right. A copyright holder's exclusive right
to recite, play, act, show, or otherwise render the pro
tected work publicly, whether directly or by technologi
cal means (as by broadcasting the work on television).
-Every public performance of a copyrighted work
requires authorization from the copyright owner or its
representative, unless a statutory ephemeral-rec |
ed work
requires authorization from the copyright owner or its
representative, unless a statutory ephemeral-recording
exemption applies. -Also termed public-performance
right. [Cases: Copyrights and Intellectual Property C:::::o
36.]
performance shares. Stock given to an executive when
the corporation meets a performance objective. performance specification. See STATEMENT OF WORK.
performance stock. See glamour stock under STOCK.
per fraudem (par fraw-dam), adv. [Latin] By fraud;
fraudulently.
periculo petentis (p<l-rik-ya-Ioh pa-ten-tis). [Latin] Hist.
At the risk of the person seeking. - A private person
was liable in damages for a judicial warrant wrongfully
issued at that person's insistence.
"[AI creditor seeking a warrant for the apprehension of
his debtor as in meditatione fugae, obtains it periculo
petentis, and he, not the judge, will be liable in damages if
the debtor can show that the obtaining of the warrant and
the using of it were illegal." John Trayner, Trayner's Latin
Maxims 454 (4th ed. 1894).
periculosus (p<lr-ik-ya-Ioh-s<ls), adj. [Latin) Dangerous;
perilous.
periculum (p<J-rik-Y<J-I<Jm), n. [Latin) Civil law. Peril;
danger; risk. PI. pericula.
peril. (Be) 1. Exposure to the risk ofinjury, damage, or
loss <the perils oflitigation>.
inescapable peril. (1933) A danger that one cannot
avoid without another's help. See LAST-CLEAR
CHANCE DOCTRINE. [Cases: Negligence C=S30(l).)
2. Insurance. The cause of a risk ofloss to person or
property; esp., the cause ofa risk such as fire, accident,
theft, forgery, earthquake, flood, or illness <insured
against all perils>. Cf. RISK (3). [Cases: Insurance
2140,2219.)
peril ofthe sea. An action of the elements at sea ofsuch
force as to overcome the strength ofa well-founded ship
and the normal precautions of good marine practice.
- A peril ofthe sea may relieve a carrier from liability
for the resulting losses. -Also termed danger ofnavi
gation; danger ofriver; marine peril; marine risk; (in
regard to the Great Lakes) perils ofthe lakes; danger
ofthe sea. [Cases: Insurance (,.'-:J2220; Shipping C=
120.]
"Of the marine peri Is, by far the most im portant are
those 'of the seas'. What is covered is not any loss that
may happen on the sea, but fortuitous losses occurring
through extraordinary action of the elements at sea, or
any accident or mishap in navigation. By far the greatest
number of claims for marine loss, and of the insurance
problems connected with other topics treated in this book
arise under this clause. Extraordinary action of the wind
and waves is a sea peril. Collision, foundering, stranding,
striking on rocks and icebergs, are all covered under these
words. Even a swell from a passing ship may be a 'peril of
the sea'. On the other hand, ordinary wear and tear are not
included under the coverage of this or any other phrase
in the clause, nor are losses which are anticipatable as
regular incidents of sea carriage in general or of naviga
tion in a particular part of the world." Grant Gilmore &
Charles L. Black Jr., The Law ofAdmiralty 2-9, at 72-73
(2d ed. 1975).
perimere causam (pa-rim-;t-ree kaw-z<Jm). [Latin) Hist.
To put an end to the cause. -The phrase appeared in
reference to the legal effect ofa peremptory defense. See
peremptory defense under DEFENSE (1).
perinatal 1254
perinatal (per-i-nayt-dl), adj. Ofor relating to the period
from about the 12th week of gestation through the 28th
day oflife. Cf. NEONATAL.
per incuriam (pdf in.kyoor-ee-dm), adj. (Of a judicial
decision) wrongly decided, usu. because the judge or
judges were ill-informed about the applicable law.
'There is at least one exception to the rule of stare decisis,
I refer to judgments rendered per incuriam. A judgment
per incuriam is one which has been rendered inadver
tently. Two examples come to mind: first, where the judge
has forgotten to take account of a previous decision to
which the doctrine of stare decisis applies. For all the care
with which attorneys and judges may comb the case law,
errare humanum est, and sometimes a judgment which
clarifies a point to be settled is somehow not indexed, and
is forgotten, It is in cases such as these that ajudgment
rendered in contradiction to a previous judgment that
should have been considered binding, and in ignorance
of that judgment, with no mention of it, must be deemed
rendered per incuriam; thus, it has no authority., . The
same applies to judgments rendered in ignorance of leg
islation of which they should have taken account. For a
judgment to be deemed per incuriam, that judgment must
show that the legislation was not invoked," Louis-Philippe
Pigeon, Drafting and Interpreting Legislation 60 (1988),
"As a general rule the only cases in which decisions should
be held to have been given per incuriam are those of deci
sions given in ignorance or forgetfulness of some incon
sistent statutory provision or of some authority binding on
the court concerned, so that in such cases some features
of the decision or some step in the reasoning on which it is
based is found on that account to be demonstrably wrong.
This definition is not necessarily exhaustive, but cases not
strictly within it which can properly be held to have been
decided per incuriam, must in our judgment, consistently
with the stare decisis rule which is an essential part of our
law, be of the rarest occurrence." Rupert Cross &J.W. Harris,
Precedent in English Law 149 (4th ed. 1991).
perinde est ac si scriptum non esset (p<lr-in-dee est ak
51 skrip-t<lm non es-et). [Latin) Scots law. It is the same
as if it had not been written. _ A deed that failed to
convey the grantor's meaning adequately could not be
supplemented by extrinsic evidence and would be void
for uncertainty.
perinfortunium (pdr in-for-t[y)oo-nee-<lm), adj. or adv.
[Latin] By misadventure. _ At common law, when one
person killed another per infortunium, a conviction and
royal pardon were necessary even when there was no
fault, See homicide per infortunium under HOMICIDE.
"'t may seem strange to modern minds that for centuries it
was a rule of our law that a man who killed another either
by misadventure (per infortunium) or in reasonable self
defence (against an attack not itself felonious), although
he did not commit a felony, must yet be held guilty of
unlawful homicide and require the King's pardon if he
were to escape punishment, and even if granted pardon
would still be liable to suffer forfeiture of his property; and
that he was exposed to claims for compensation from the
family of the deceased;' J,W. Cecil Turner, Kenny's Outlines
ofCriminal Law 113 (l6th ed. 1952).
per insidias et industriam (pdr In-sid-ee-<ls et in-das
tree-dm), [Latin] Hist. By stratagem and on purpose;
intentionally.
periodic alimony. See permanent alimony under
ALIMONY.
periodic audit. See AUDIT. periodic estate. See periodic tenancy under TENANCY,
periodic payment. See PAYMENT.
periodic-payment-plan certificate. See STOCK CERTIFI
CATE.
periodic tenancy. See TENANCY.
period ofprescription. The period fixed by local law as
sufficient for obtaining or extinguishing a right through
lapse oftime. -In addition to a fixed number ofyears,
the period includes whatever further time is allowed by
local law because of infancy, insanity, coverture, and
other like circumstances. See PRESCRIPTIVE RIGHT;
PRESCRIPTION (3), (4), (5).
peripheral right. See RIGHT.
periphrasis (pd-rif-rJ-sis), n. (l6c) A roundabout way of
writing or speaking; circumlocution, periphrastic
(per-J-fras-tik), adj.
perishable-food-disparagement act. See AGRICUL
TL"RAL-DISPARAGEMENT LAW.
perjury (par-jJr-ee), n. (l4c) The act or an instance ofa
person's deliberately making material false or mislead
ing statements while under oath. -Also termed false
swearing; false oath; (archaically) forswearing. [Cases:
Perjury C=-1-12.) -perjure (p;)r-j<lr), vb. perjured
(p3r-j<lrd), perjurious (pdr-juur-ee-ds), adj. perjuror
(p3r-j<lr-<lr), n.
perjury-trap doctrine. (1989) The principle that a
perjury indictment against a person must be dismissed
if the prosecution secures it by calling that person as a
grand-jury witness in an effort to obtain evidence for a
perjury charge, esp. when the person's testimony does
not relate to issues material to the grand-jury's ongoing
investigation. [Cases: Perjury C=-1O, 15.]
perk, n. See PERQUISITE.
per legem terrae (p<lr lee-jJm ter-ee). [Law Latin] By the
law ofthe land; by due process oflaw.
Perlman doctrine. The principle that a discovery order
directed at a disinterested third party is immediately
appealable on the theory that the third party will not
risk contempt by refusing to comply. _ The doctrine
originated in Perlman v. United States, 247 US. 7, 13,
38 S.Ct. 417, 420 (1918). The Court reasoned that the
third party's ability to protect his or her rights would
be thwarted ifthe party could not appeal immediately.
[Cases: Criminal LawC=-1023(3); Federal CourtsC=
574.]
permanency hearing. See HEARING,
permanency plan. A proposed written strategy for the
eventual permanent placement ofa child who has been
removed from his or her parents. _ A permanency plan,
ideally, provides either for the child's safe return to one
or both parents or for the child's adoption. Ifneither of
these alternatives is possible, then the plan will provide
for long-term foster care, relative care, or guardianship.
Under the Adoption and Safe Families Act, long-term
foster care is the choice oflast resort. Also termed
permanent plan. [Cases: Infants 226.)
1255
permanency-planning hearing. See permanency hearing
under HEARING.
permanent abode. See DOMICILE (1).
permanent alimony. See ALIMONY.
permanent allegiance. See ALLEGIANCE.
permanent charge d'affaires. See CHARGE D'AFFAIRES.
permanent committee. See standing committee under
COMMITTEE.
permanent damages. See DAMAGES.
permanent disability. See DISABILITY (2).
permanent employment. See EMPLOYMENT.
permanent financing. See FINANCING.
permanent fixture. See FIXTURE.
permanent injunction. See INJUNCTION.
permanent injury. See INJURY.
permanent law. See LAW.
permanent nuisance. See NUISANCE.
permanent plan. See PERMANENCY PLAN.
permanent policy. See INSURANCE POLICY.
permanent protective order. See PROTECTIVE ORDER.
permanent statute. See perpetual statute under
STATUTE.
permanent taking. See TAKING (2).
permanent treaty. See TREATY (1).
permanent trespass. See TRESPASS.
permanent ward. See WARD.
per membra curiae (p;)r mem-br;) kyoor-ee-ee). [Law
Latin] Hist. By members of the court.
per metas et bundas (p;)r mee-t;)s et b;,n-d;)s). [Law
Latin] By metes and bounds.
per minas. See duress per minas under DURESS.
permissible appointee. See APPOINTEE.
permissihle-repair doctrine. See REPAIR DOCTRINE.
permission. (1Sc) 1. The act of permitting. 2. A license
or liberty to do something; authorization.
express permission. Permission that is clearly and
unmistakably granted by actions or words, oral or
written.
implied permission. 1. Permission that is inferred
from words or actions. 2. See implied consent under
CONSENT.
3. Conduct that justifies others in belieVing that the
possessor of property is willing to have them enter if
they want to do so. Cf. INVITATION.
permissive abstention. See ABSTENTION.
permissive counterclaim. See COUNTERCLAIM.
permissive inference. See permissive presumption under
PRESUMPTION.
permissive joinder. See TOINDER.
permissive presumption. See PRESUMPTION. per modum simp/icis querelae
permissive statute. See STATUTE.
permissive subject of bargaining. Labor law. An
employment or collective-bargaining issue, other than
a basic employment issue, that is not reqUired to be
the subject ofcollective bargaining but that cannot be
implemented by management without union approvaL
For example, altering the scope ofthe bargaining unit |
but that cannot be
implemented by management without union approvaL
For example, altering the scope ofthe bargaining unit
does not affect a term or condition of employment, so
it is a permissive, instead of mandatory, subject of bar
gaining. Disagreement on a permissive subject ofbar
gaining cannot be used as the basis for an impasse in
negotiating a collective-bargaining agreement, unlike
a mandatory subject ofbargaining. Often shortened
to permissive subject. Cf. MANDATORY SUBJECT OF BAR
GAINING. [Cases; Labor and Employment c=::> 1126.]
permissive tenant. See tenant at sufferance under
TENANT.
permissive use. See USE (4).
permissive waste. See WASTE (1).
permit (p;,r-mit), n. (17c) A certificate evidencing per
mission; a license <a gun permit>.
permit (p<lr-mit), vb. (ISc) 1. To consent to formally
<permit the inspection to be carried out>. 2. To give
opportunity for <lax security permitted the escape>. 3.
To allow or admit of <if the law so permits>.
permit bond. See license bond under BOND (2).
permit card. Labor law. A document issued by a union
to a nonunion member to allow the person to work on
a job covered by a union contract.
permittee (p<lr-mi-tee). One who has permission to do
something.
subpermittee. A person who receives permission to act
from a permittee.
per mitter Ie droit (pdr mit-<lr Id droyt). [Law French]
Hist. By passing the right. Ihis described how releases
became effective, as when a person disseised of land
released the estate to the disseisor, at which time the
right and possession combined to give the disseisor the
entire estate.
per mitter l'estate (p;)r mit-;)r l<l-stayt). [Law French]
Hist. By passing the estate. -This described the manner
in which a joint tenant's right to an entire estate arose
when the tenant received the remaining estate from the
other joint tenant.
per modum exceptionis (p;)r moh-d;)m ek-sep-shee-oh
nis). [Latin) Hist. By way of exception.
per modum gratiae (P<lf moh-d;)m gray-shee-ee). [Latin]
Hist. By way offavor.
per modum justitiae (P;)f moh-d<lm jds-tish-ee-ee).
[Latin] Hist. By way ofjustice.
per modum poenae (p<lr moh-d;)m pee-nee). [Latin] Hist.
By way ofpenalty.
per modum simplicis querelae (P;)f moh-d;)m sim
pH-sis kw;)-ree-lee). [Law Latin] Scots law. By way of
1256 permutatio
simple complaint. Some actions could be brought by
a complaint unaccompanied by formal summons.
permutatio (p;n-myoo-tay-shee-oh), n. [Latin
"exchange"] Roman law. An agreement for barter or
exchange. The agreement became binding as soon
as one party had transferred ownership of his thing
to the other. PI. permutationes (pi3r-myoo-tay-shee
oh-neez).
permutation. Civil law. Barter; exchange.
per my etper tout (p<lr mee ay p<lr too[t]). [Law French]
By the half and by the whole . This phrase described
the estate held by joint tenants: by the hallfor purposes
ofsurvivorship, by the whole for purposes ofalienation.
Cf. PER TOUT ET NON PER MY. [Cases: Joint Tenancy
pernancy (p;lr-n;m-see). Hist. A taking or reception, as
of the profits ofan estate.
pernor of profits (p<lr-n;}r or -nor). Hist. A person
who receives the profits of property; one who has the
pernancy of the profits.
perp (pi3rp), n. Slang. Perpetrator <the police brought in
the perp for questioning>. See PERPETRATOR.
perpars (p<lr-pahrz). [Law Latin, fr. Latin per partes "by
parts"] See PURPART.
perparts. See PURPART.
perpetrate, vb. (16c) To commit or carry out (an act,
esp. a crime) dind whoever perpetrated this heinous
deed>. perpetration, n.
perpetrator. (16c) A person who commits a crime or
offense.
perpetua (p;}r-pech-oo-i3). See exceptio peremptoria
under EXCEPTIO.
perpetual bond. See annuity bond under BOND (3).
perpetual edict. See edictum perpetuum under
EDICTUM.
perpetual freehold. See FREEHOLD.
perpetual injunction. See permanent injunction under
INJUNCTION.
perpetual lease. See LEASE.
perpetually renewable lease. See LEASE.
perpetual policy. See INSURANCE POLICY.
perpetual statute. See STATUTE.
perpetual succession. See SUCCESSION (4).
perpetual trust. See TRUST.
perpetuation of testimony. The means or procedure for
preserving for future use witness testimony that might
otherwise be unavailable at trial. [Cases: Federal Civil
Procedure Pretrial Procedure C=>61.]
perpetuities, rule against. See RULE AGAINST PERPE
TUITIES.
perpetuity (p<lr-pa-t[y]oo-;}-tee). 1. The state ofcontinu
ing forever. 2. Hist. An unbarrable entail. 3. Hist. An
inalienable interest. 4. An interest that does not take effect or vest within the period prescribed by law. In
reference to the rule against perpetuities, only sense 4 is
now current. See RULE AGAINST PERPETUITIES. [Cases:
Perpetuities
"A perpetuity is a thing odious in law, and destructive of
the Commonwealth; it would put a stop to commerce and
prevent the circulation of the riches of the Kingdom, and
therefore is not to be countenanced in equity. If in equity
you could come nearer to a perpetuity than the rules of
Common Law would admit, all men being desirous to
continue their estates in their families, would settle their
estates by way of trust which might indeed make well for
the jurisdiction of the court, but would be destructive of
the commonwealth. (1683) 1 Vern. 163 (per Lord North)
(as quoted in George W. Keeton, English Law: The Judicial
Contribution 118 (1974)).
perpetuity of the king or queen. A fiction of English
law that for political purposes the king or queen is
immortal; that is, a monarch dies, but the office is never
vacant.
per procurationem (pi3r prok-ya-ray-shee-oh-nam).
[Latin] By proxy. Abbr. per pro.; p. proc.; p. pro.;
p.p. Also termed per procuration.
perp walk. Slang. The act ofmaking a suspect in custody
walk before an audience, esp. members of the media .
Perp is short for perpetrator.
per quae servitia (pi3r kwee sJr-vish-ee-J). [Latin "by
which services"] Hist. A real action by which the
grantee of a landed estate could compel the tenants of
the grantor to attorn to him. 1his action was abol
ished in the 19th century.
perquisite (p;u-kwi-zit). (16c) A privilege or benefit given
in addition to one's salary or regular wages. -Often
shortened to perk. [Cases: Officers and Public Employ
eesC=>99.]
perquisitor (pi3r-kwiz-i3-ti3r). [Latin "a seeker out"] Hist.
A purchaser; esp., one who first acquires an estate by
sale or gift.
per quod (par kwod), adv. & ad). [Latin "whereby"]
(17c) Requiring reference to additional facts; (of libel
or slander) actionable only on allegation and proof
of special damages. See actionable per quod under
ACTIONABLE; libel per quod under LIBEL; slander per
quod under SLANDER. [Cases: Libel and Slander Cr--=
1,33.]
per quod consortium amisit (p;}r kwod bn-sor
shee-<lm i3-mI-zit). [Law Latin] Hist. Whereby he lost
the company (of his Wife). This phrase was used in
a trespass declaration to describe the loss suffered by
a husband whose wife had been beaten or otherwise
abused. [Cases: Husband and Wife C=>209(3).J
per quod servitium amisit (p;}r kwod s;}r-vish-ee-i3m
i3-mI-zit). [Law LatinJ Hist. Whereby he lost the services
(of his servant) . This phrase was used in a trespass
declaration to describe the loss suffered by a master
whose servant had been injured by another. [Cases:
Labor and Employment Cr"::) 127.]
1257
per rescriptum principis (p~r ri-skrip-t~m prin-si
pis). [Latin] Roman law. By the prince's rescript; by an
imperial written reply to a petition.
Perringer release. See Pierringer release under RELEASE
(2).
persaltum (p~r sal-t~m). [Latin] Hist. Bya leap; without
an intermediate step.
per se (pdr say), adv. & adj. [Latin] (16c) 1. Of, in, or by
itself; standing alone, without reference to additional
facts. See actionable per se under ACTIONABLE; libel per
se under LIBEL; slander per se under SLANDER. 2. As a
matter oflaw.
persecutio (p~r-sd-kyoo-shee-oh), n. [Latin] Roman law.
A lawsuit or civil claim under cognitio extraordinaria.
See COGNITIO EXTRAORDINARIA. Pl. persecutiones
(pdr-s~-kyoo-shee-oh-neez).
persecution, n. Violent, cruel, and oppressive treatment
directed toward a person or group ofpersons because of
their race, religion, sexual orientation, politics, or other
beliefs. See hate crime under CRIME. persecute, vb.
per se deadly weapon. See deadly weapon per se under
WEAPON.
persequi (p;,}r-s~-kwI), vb. [Latin] Roman law. To claim
through a judicial proceeding.
per se rule. Antitrust. The judicial principle that a trade
practice violates the Sherman Act simply ifthe practice
is a restraint oftrade, regardless ofwhether it actually
harms anyone. See SHERMAN ANTITRUST ACT. Cf. RULE
OF REASON.
per se violation. Antitrust. A trade practice (such as
price-fixing) that is considered inherently anticom
petitive and injurious to the public without any need
to determine whether it has actually injured market
competition.
persistent price discrimination. See PRICE DISCRIMI
NATION.
person. (Be) 1. A human being. Also termed natural
person.
absent person. Louisiana law. A person who has no rep
resentative in the state and whose whereabouts are not
known and cannot be ascertained by diligent effort.
La. Civ. Code art. 47. [Cases: Absentees C=>2.J
adult disabled person. A child over the age of 18 for
whom a parent continues to have a duty of support.
associated person. See ASSOCIATED PERSON.
disabled person. (1872) A person who has a mental or
physical impairment. See DISABILITY.
disappeared person. See DISAPPEARED PERSON.
displaced person. A person who remains within an
internationally recognized state border after being
forced to flee a home or place of habitual residence
because of armed conflict, internal strife, the gov
ernment's systematic violations ofhuman rights, or
a natural or man-made disaster. -Also termed inter-person
nally displaced person. Cf. EVACUEE; REFUGEE. [Cases:
Aliens, Immigration, and Citizenship C=>S04.,
interested person. (1844) A person having a property
right in or claim against a thing, such as a trust or
decedent's estate. -The meaning may expand to
include an entity, such as a business that is a creditor
of a decedent. Abbr. IP.
person in loco parentis (in loh-koh p;J-ren-tis). (1827)
A person who acts in place of a parent, either tem
porarily (as a schoolteacher does) or indefinitely (as
a stepparent does); a person who has assumed the
obligations of a parent without formally adopting
the child. See IN LOCO PARENTIS. [Cases: Parent and
Child (;:::> IS.}
person in need ofsupervision. See child in need of
supervision under CHILD. Abbr. PINS.
person not deceased. A person who is either living or
has not yet been born.
person ofincidence. (1880) The person against whom
a right is enforceable; a person who owes a legal duty.
-The meaning may expand to include an entity, such
as an insurance company.
person ofinherence (in-heer-~nts). (1909) The person
in whom a legal right is vested; the owner ofa right.
The meaning may expand to include an entity.
person ofinterest. A person who is the subject of a
police investigation but who has not been identified
by investigators as being suspected ofcommitting the
crime itself.
person ofopposite sex sharing living quarters. See
POSSLQ.
person with ordinary skill in the art. See PERSON WITH
ORDINARY SKILL IN THE ART.
private person. 1. A person who does not hold public
office or serve in the military. 2. Civil law. An entity
such as a corporation or partnership that is governed
by private law.
protected person. 1. A |
. An entity
such as a corporation or partnership that is governed
by private law.
protected person. 1. A person for whom a conserva
tor has been appointed or other protective order has
been made. [Cases: Guardian and Ward 17;
Mental Health 104.] 2. Int'llaw. A person who
is protected by a rule ofinternational law; esp., one
who is in the hands of an occupying force during a
conflict. Protected persons are entitled to a standard
oftreatment (including a prohibition on coercion and
corporal punishment) under the Geneva Conven
tion Relative to the Protection of Civilian Persons in
Time of War (1949). 3. English law. An inhabitant of
a protectorate ofthe United Kingdom . Though not
a British subject, such a person is given diplomatic
protection by the Crown.
2. The living body ofa human being <contraband found
on the smuggler's person>. 3. An entity (such as a cor
poration) that is recognized by law as having most of
the rights and duties ofa human being. In this sense,
the term includes partnerships and other associations,
whether incorporated or unincorporated.
1258 persona
"So far as legal theory is concerned, a person is any being
whom the law regards as capable of rights and duties. Any
being that is so capable is a person, whether a human being
or not, and no being that is not so capable is a person,
even though he be a man. Persons are the substances of
which rights and duties are the attributes. It is only in this
respect that persons possess juridical significance, and
this is the exclusive point of view from which personality
receives legal recognition." John Salmond, Jurisprudence
318 (Glanville L Williams ed., 10th ed. 1947).
artificial person. (17c) An entity, such as a corpora
tion, created by law and given certain legal rights and
duties of a human being; a being, real or imaginary,
who for the purpose oflegal reasoning is treated more
or less as a human being . An entity is a person for
purposes of the Due Process and Equal Protection
Clauses but is not a citizen for purposes of the Privi
leges and Immunities Clauses in Article IV 2 and in
the Fourteenth Amendment -Also termed fictitious
person; juristic person; juridical person; legal person;
moral person. Cf. LEGAL ENTITY. [Cases: Corporations
(::::;> 1.1(2).]
control person. See CONTROL PERSON.
fictitious person. See artificial person.
international person. See INTERNATIONAL PERSON.
juridical person. See artificial person.
juristic person. See artificial person.
legal person. See artificial person.
moral person. See artificial person.
private person. See private person (2) under PERSON
(1).
persona (pdr-soh-nd), n. [Latin] Roman law. A person;
an individual human being.
persona designata (pdr-soh-nd dez-ig-nay-td). [Latin]
A person considered as an individual (esp. in a legal
action) rather than as a member ofa class.
persona dignior (pdr-soh-nd dig-nee-or). [Latin] Hist.
The more worthy or respectable person; the more
fitting person.
persona ficta (pdr-soh-nd fik-td). [Latin "false mask"]
Hist. A fictional person, such as a corporation.
"But units other than individual men can be thought of as
capable of acts, or of rights and liabilities: such are Cor
porations and even Hereditates lacentes. Accordingly the
way is clear to apply the name of person to these also. The
mediaeval lawyers did so, but as they regarded Corpora
tions as endowed with personality by a sort of creative act
of the State, and received from the Roman lawyers the con
ception of the hereditas iacens as representing the persona
of the deceased rather than as itself being a person, they
called these things Personae Fictae, an expression not used
by the Romans." WW. Buckland, Elementary Principles of
the Roman Private Law 16 (1912).
persona grata. See PERSONA GRATA.
persona illustris (pdr-soh-nd i-Ids-tris). [Latin] Hist. A
person ofdistinction.
persona miserabilis (pdr-soh-nd miz-d-rab-d-lis).
[Latin "a pitiable person"] Roman law. An unfortu
nate person, esp. because of age, illness, or status . A persona miserabilis received certain privileges in
litigation.
persona moralis (pdr-soh-nd md-ray-lis). [Latin] A col
lective entity that, by law or custom, is recognized as
an artificial person (e.g., a church or corporation). See
artificial person under PERSON (2).
persona nasciturus (pdr-soh-nd nas-d-t[y]oor-ds or
-t[y]3r-Js). [fro Latin nascor"to be born"] Roman law.
An unborn child. -Sometimes shortened to nasci
turus.
persona non grata. See PERSONA NON GRATA.
persona praedilecta (pdr-soh-nd pree-dd-Iek-tJ). [Law
Latin] Scots law. A preferred person.
"This phrase signifies one person who, among others
appointed with him as colleagues in some office, enjoys
the confidence and esteem ofthe person appointi ng, more
than those appointed with him. Thus a testator not unfre
quently appoints among his trustees one who shall be a
sine qua non -that is, one whose concurrence and consent
shall be indispensable to every act of administration under
the trust. Such a trustee falls within the description of a
persona praedilecta." John Trayner, Trayner's Latin Maxims
456 (4th ed. 1894).
persona standi in judicio. See PERSONA STANDI IN
JUDICIO.
personable, adj. (16c) Having the status ofa legal person
(and thus the right to plead in court, enter into con
tracts, etc.) <a personable entity>.
person aggrieved. See aggrieved party under PARTY
(2).
persona grata (pdr-soh-nd gray-td orgrah-td or grat-d),
n. [Latin] An acceptable person; esp., a diplomat who is
acceptable to a host country. PI. personae gratae (pdr
soh-nee gray-tee or grah-tee or grat-ee). Cf. PERSONA
NON GRATA.
personal, adj. (14c) 1. Ofor affecting a person <personal
injury>. 2. Of or constituting personal property
<personal belongings>. See IN PERSONAM.
personal action. See ACTION (4).
personal asset. See ASSET.
personal bond. See BOND (2).
personal-capacity suit. See SUIT.
personal chattel. See chattel personal under CHATTEL.
personal check. See CHECK.
personal-comfort doctrine. The principle that the
course of employment is not interrupted by certain acts
relating to the employee's personal comfort, typically
short breaks for eating, drinking, using the restroom,
and the like. -Also termed personal-comfort rule.
personal-condition crime. See status crime under
CRIME.
personal contract. See CONTRACT.
personal covenant. See COVENANT (4).
personal crime. See CRIME.
personal defense. See DEFENSE (4).
1259
personal demand. See DEMAND (3).
personal effects. See EFFECTS.
personal estate. See personal property (1) under
PROPERTY.
personal evidence. See TESTIMONY.
personal exemption. See EXEMPTION.
personal goodwill. See GOODWILL.
personal history. An individual's background; the par
ticular experiences and events that shape a person's
life.
personal holding company. See COMPANY.
personal-holding-company tax. See holding-company
tax under TAX.
personali exceptione (p"r-s,,-nay-lr ek-sep-shee-oh-nee).
[Latin] Rist. By personal exception; by an exception
based on personal reasons. -Also termed personali
objectione ("b-jek-shee-oh-nee).
personal income. See INCOME.
personal indignity. See INDIGNITY.
personal injury. See INJURY.
personalis actio (pClr-s<:I-nay-lis ak-shee-oh). [Latin] Rist.
A personal action; an action in personam.
personaliter (p"r-s<:I-nay-hHClr), adv. [Latin] Personally;
in person.
personality. (1870) 1. The legalstatus ofone regarded by
the law as a person; the legal conception by which the
law regards a human being or an artificial entity as a
person. Also termed legal personality.
"Legal personality ... refers to the particular device by
which the law creates or recognizes units to which it
ascribes certain powers and capacities." George Whitecross
Paton, A Textbook ofJurisprudence 393 (G.w. Paton & David
P. Derham eds., 4th ed. 1972).
2. Parliamentary law. (usu. pl.) An improper refer
ence to a member by name or in his or her personal
capacity.
"No person in speaking, is to mention a member then
present by his name; but to describe him by his seat in
the house, or who spoke last, or on the other side of the
question, nor to digress from the matter to fall upon the
person, by speaking, reviling, nipping, or unmannerly
words against a particular member. The consequences
of a measure may be reprobated in strong terms; but to
arraign the motives of those who propose or advocate it,
is a personality, and against order." Thomas Jefferson, A
Manual of Parliamentary Practice 36-37 (1801) (citations
omitted).
personality theory. Intellectual property. A rational
ization ofintellectual-property laws, esp. copyright,
draWing on the philosophy of G.w.F. Hegel, holding
that personal expression is a form ofself-actualization
that gives the creator inalienable moral rights in the
creations . As a way ofanalyzing intellectual-property
rights, personality theory takes the pOint of view of
the individual inventor, author, or artist rather than
that ofsociety as a whole. Cf. LOCKEAN LABOR THEORY;
UTILITARIANISM. personal service
personal judgment. See JUDGMENT.
personal jurisdiction. See JURISDICTION.
personal justice. See JUSTICE (1).
personal knowledge. See KNOWLEDGE.
personal law. (lSc) The law that governs a person's family
matters, usu. regardless ofwhere the person goes . In
common-law systems, personal law refers to the law of
the person's domicile. In civil-law systems, it refers to
the law ofthe individual's nationality (and so is some
times called lex patriae). Cf. TERRITORIAL LAW.
"The idea of the personal law is based on the conception
of man as a social being, 50 that those transactions of
his daily life which affect him most closely in a personal
sense, such as marriage, divorce, legitimacy, many kinds
of capacity, and succession, may be governed universally
by that system of law deemed most SUitable and adequate
for the purpose .... [Ajlthough the law of the domicile
is the chief criterion adopted by English courts for the
personal law, it lies within the power of any man of full
age and capacity to establish his domicile in any country
he chooses. and thereby automatically to make the law of
that country his personal law." R.H. Graveson, Conflict of
Laws 188 (7th ed. 1974).
personal liability. See LIABILITY.
personal liberty. See LIBERTY.
personal name. See NAME.
personal notice. See NOTICE.
personal ohligation. See OBLIGATION.
personal privilege. See PRIVILEGE (5).
personal property. See PROPERTY.
personal-property tax. See TAX.
personal recognizance. See RECOGNIZANCE.
personal replevin. See REPLEVIN.
personal representative. See REPRESENTATIVE.
personal reputation. See REPUTATION.
personal-residence trust. See TRUST.
Personal Responsibility and Work Opportunity Rec
onciliation Act. A 1996 federal law that overhauled the
welfare system, as well as requiring states to provide a
means for collecting child support by (1) imposing liens
on a child-support obligor's assets, and (2) facilitating
income-withholding . The Act did away with Aid to
Families with Dependent Children in favor ofTem
porary Assistance to Needy Families. It also limited
the length of time that persons could receive welfare
and tied states' receipt offederal child-support funds
to their implementing enhanced paternity-establish
ment services. Also termed Welfare Reform Act. See
AID TO FAMILIES WITH DEPENDENT CHILDREN; TEM
PORARY ASSISTANCE TO NEEDY FAMILIES. -Abbr.
PRWORA. [Cases: Social Security and Public Welfare
194.]
personal right. See RIGHT.
personal security. See SECURITY.
personal service. (l6c) 1. Actual delivery of the notice
or process to the person to whom it is directed. -Also
1260 personal servitude
termed actual service. [Cases: Federal Civil Procedure
Process <::--=48,64.]2. An act done personally
by an individuaL. In this sense, a personal service is
an economic service involving either the intellectual or
manual personal effort ofan individual, as opposed to
the salable product ofthe person's skill.
personal servitude. See SERVITUDE (2).
personal statute. See STATUTE.
personal suretyship. See SURETYSHIP.
personal tithe. See TITHE.
personal tort. See TORT.
personal treaty. See TREATY (1).
personal trust. See private trust under TRUST.
personalty (pars-;m-dl-tee). ( |
1).
personal trust. See private trust under TRUST.
personalty (pars-;m-dl-tee). (I6c) Personal property as
distinguished from real property. See personal property
(1) under PROPERTY. [Cases: Property C::>4.]
quasi-personalty. Things that are considered movable
by the law, though fixed to real property either
actually (as with a fixture) or fictitiously (as with a
lease for years).
personal warrandice. See WARRANDICE.
personal warranty. See WARRANTY (2).
personal wrong. See WRONG.
personam. See IN PERSONAM.
persona miserabilis. See PERSONA.
persona moralis. See PERSONA.
persona nasciturus. See PERSONA.
persona non grata (p;n-sohn-a non grah-da), n. [Latin]
An unwanted person; esp., a diplomat who is not
acceptable to a host country. PI. personae non gratae.
Cf. PERSONA GRATA.
persona praedilecta. See PERSONA.
persona proposita. See PROPOSITUS.
persona standi in judicio (pdf-soh-na stan-dI in joo
dish-ee-oh). [Law Latin] 1. Capacity of standing in
judgment; the right to appear in court. 2. One with
personal standing to vindicate a legal right
"What persona standi may be more easily learned by
considering the loss of by civil death or outlawry ...
But there are others besides outlaws who have no persona
standi. A pupil cannot pursue or defend; that must be done
by his tutor in his name. And companies, as such, have not
a persona standi . ... Persona standi applies to the status
of the person, as qualified to pursue or defend in actions
generally; title to pursue applies to particular actions, and
requires, in addition to a persona standi, that the party have
a proper legal interest in the particular action pursued or
defended.'" William Bell, Bell's Dictionary and Digest of the
Law ofScotland 800 (George Watson ed., 7th ed. 1890).
personation. See IMPERSONATION.
person-endangering state of mind. (1990) An intent
to kill, inflict great bodily injury, act in wanton disre
gard of an unreasonable risk to others, or perpetrate
a dangerous felony. Also termed man-endangering
state ofmind.
person in loco parentis. See PERSON (1). person in need ofsupervision. See child in need ofsuper
vision under CHILD. Abbr. PINS.
person not deceased. See PERSON (1).
person ofinddence. See PERSON (1).
person ofinherence. See PERSON (1).
person ofinterest. See PERSON (1).
person of opposite sex sharing living quarters. See
POSSLQ.
person with ordinary skill in the art. Patents. A fic
tional construct of the patent laws, denoting someone
who has reasonably developed abilities in the field of
the invention at issue . The patent application must
be clear and complete enough to teach a person skilled
in the art how to make and use the invention without
undue experimentation. [Cases: Patents 16(3).]
"The term 'person skilled in the art .. .' has been inter
preted to mean a person having ordinary or fair informa
tion in that particular line, not necessarily a person of
high scientific attainments. The skill or knowledge to be
imputed to such a person will vary with the complexity of
the art to which the invention relates." Archie R. McCrady,
Patent Office Practice 61 (2d ed. 1946).
per stirpes (p<lr star-peez), adv. & adj. [Latin "by roots
or stocks"] (17c) Proportionately divided between
beneficiaries according to their deceased ancestor's
share. Also termed in stirpes; per stirpem. Cf. PER
CAPITA. [Cases: Descent and Distribution C::>43; Wills
C=o530.]
persuade, vb. To induce (another) to do something
<Steve persuaded his neighbor to sign the release after
the accident>.
persuaded confession. See CONFESSION.
persuasion. (14c) The act of influencing or attempting
to influence others by reasoned argument; the act of
persuading.
fair persuasion. Argument, exhortation, or persuasion
that does not involve harassment, threats, or misrep
resentations.
persuasion burden. See BURDEN OF PERSUASION.
persuasive authority. See AUTHORITY (4).
persuasive memorandum. See MEMORANDUM.
persuasive precedent. See PRECEDENT.
per subsequens matrimonium (p<lr sab-s<l-kwenz
ma-trd-moh-nee-<lm). [Latin] Roman & civil law. By
subsequent marriage . The phrase often referred to a
child's legitimation by the later marriage ofthe child's
parents.
per tacitam reconventionem (p<lr taS-<l-t<lm ree-bn
ven-shee-oh-nam). [Latin] Hist. Bya tacit renewal of
the contract.
per tacitam relocationem (P<lf taS-<l-tam ree-loh-kay
shee-oh-ndm). [Latin] Hist. By tacit relocation. See
TACIT RELOCATION.
pertain, vb. To relate to; to concern.
1261 petition
pertinent, adj. (lSc) Pertaining to the issue at hand;
relevant <pertinent testimony>.
pertinent art. 1. See analogous art under ART. 2. See
relevant art under ART.
per totam curiam (p;}r toh-t<lm kyoor-ee-;}m). [Law
Latin] By the whole court.
per tout et non per my (p<lr too[tJ ay non p<lr mee). [Law
French] By the whole and not by the half. _ This phrase
described the estate given to a husband and wife
both are seised of the entire estate. Cf. PER MY ET PER
TOUT.
perturbator (par-t<lr-bay-t<lr). [Law Latin] Hist. A person,
esp. a man, who disturbs the peace.
perturbatrix (p<lr-t<lr-bay-triks), n. [Law LatinJ Hist. A
woman who disturbs the peace.
per universitatem (p<lr yoo-n;}-v<lr-s<l-tay-tam). [LatinJ
Civil law. By an aggregate or whole; as an entirety. _
This term describes the acquisition ofan entire estate,
esp. ofan entire inheritance by universal succession.
per venditionis, donation is, cession is, vel commutatio
nis titulum (p<lf ven-dish-ee-oh-nis, doh-nay-shee-oh
nis, sesh-ee-oh-nis, vel kom-y,Hay-shee-oh-nis tich-[yJ
;}-l<lm). [Law Latin] Hist. By the title ofsale, donation,
cession, or barter.
"Per venditionis, donation is, cession is, vel commutationis
titulum .... These terms were used in the older forms of
conveyancing, to distinguish lands so acquired from lands
acquired either by inheritance or feudal grant. They signify
what is now known by the name of a singular title." John
Trayner, Travner's Latin Maxims 452 (4th ed. 1894.).
per verba de futuro. By words in the future tense.
per verba de futuro cum copula. [Latin1A promise of
marriage in the future given to a person with whom the
promisor is currently engaged in a sexual relationship.
- A few states recognize the formation of a common
law marriage under these circumstances. See common
law marriage under MARRIAGE (1). [Cases: Marriage
G=;>20(2).]
per verba de praesenti. By words in the present tense.
perverse verdict. See VERDICT.
per vim legis (p<lr vim lee-jis). [Latin] Hist. By force of
law. -The phrase generally referred to persons who
succeeded by intestacy to an estate.
pervise. See PARVIS.
per vivam vocem (p;}r VI-V<lm voh-s<lm). [Law Latin] By
the living voice.
per voluntatem hominis (p;}r vol-an-tay-tdm hom-<l-nis).
[Latin] Hist. By the will ofman. -The phrase appeared
in reference to an act done by the testator's intention.
pessima fides (peS-;}-md fI-deez). [LatinJ Hist. The worst
faith. -The phrase appeared in reference to moral dis
honesty.
pessimi exempli (peS-<l-mI eg-zem-plr). [Latin] Hist. Of
the worst example.
"Thus, to acquit a man of a crime because he had commit
ted it under the influence of drink, or to allow anyone to take benefit under a contract induced by his fraud, would
be pessimi exempli, as tending to lead others to be dishon
est or unfair in their dealings, or to be careless of their
habits or their acts." John Trayner, Trayner's Latin Maxims
457 (4th ed. 1894).
petens (pet-enz). [LatinJ Hist. A demandant; a plaintiff
in a real action.
peter-pence. Hist. A tax levied on each house in England
and paid to the Pope, so called because it was collected
on St. Peter's Day. -Also termed hearth money.
petit (pet-ee or pet-it), adj. [Law French "minor, small"]
(lSc) See PETTY.
petit cape. See cape parvum under CAPE.
petite assize. See ASSIZE (5).
Petite policy. Ihe Department ofJustice rule forbidding
a federal prosecution after a previous state or federal
prosecution based on the same acts unless (1) an Assis
tant Attorney General has approved the prosecution,
(2) a substantial federal interest supports the prosecu
tion, (3) the previous prosecution failed to vindicate the
federal interest, and (4) there is sufficient evidence to
sustain a conviction. United States Attorneys' Manual
9-2.031 (Sept. 1997); Petite v. United States, 361 U.S.
529, 80 S.Ct. 450 (1960). [Cases: Criminal Law
29.J
"('Petite Policy') .... The purpose of this policy is to vin
dicate substantial federal interests through appropriate
federal prosecutions, to protect persons charged with
criminal conduct from the burdens associated with multiple
prosecutions and punishments for substantially the same
act(s) or transaction(s), to promote efficient utilization of
Department resources, and to promote coordination and
cooperation between federal and state prosecutors." United
States Attorneys' Manual 9-2.031 (Sept. 1997).
"In response to the Court's continuing sensitivity to the
fairness implications of the mUltiple prosecution power,
the Justice Department adopted the policy of refusing to
bring a federal prosecution following a state prosecution
except when necessary to advance compelling interests of
federal law enforcement. The Petite policy was designed to
limit the exercise of the power to bring successive prosecu
tions for the same offense to situations comporting with
the rationale for the existence of that power. Although
not constitutionally mandated, this Executive policy
serves to protect interests which, but for the 'dual sover
eignty' prinCiple inherent In our federal system, would be
embraced by the Double Jeopardy Clause. In light of the
parallel purposes of the Government's Petite policy and
the fundamental constitutional guarantee against double
jeopardy, the federal courts should be receptive, not cir
cumspect, when the Government seeks leave to implement
that policy." Rinaldi v. United States, 434 U.S. 22, 28-29, 98
S.Ct. 81, 85 (1977) (citation omitted).
petitio (p<l-tish-ee-oh), n. [Latin]!. Civil law. A plain
tiff's suit, esp. in an action in rem. 2. Hist. A petition
or demand; esp., a count in a real action.
petition, n. (lSc) 1. A formal written request presented
to a court or other official body.
bankruptcy petition. See voluntary petition.
certiorari petition. A petition seeking discretionary
review from an appellate court. See CERTIORARI.
[Cases: Certiorari G=;>42; Federal Courts
debtor's petition. See voluntary petition.
involuntary petition. (1868) A petition filed in a bank
ruptcy court by a creditor seeking to declare a debtor
bankrupt. -This petition may be filed only under
Chapter 7 or Chapter 11 of the Bankruptcy Code.
[Cases: Bankruptcy (:::::>2290.)
juvenile petition. (1945) A juvenile-court petition
alleging delinquent conduct by the accused. -The
accusations made in a juvenile petition are sometimes
tried in an adjudication hearing. See adjudication
hearing (3) under HEARING. [Cases: Infants (:::::> 197.)
petition for probate. A written application by which a
party requests that a court admit a will to probate.
petition in error. See APPEAL (1).
voluntary petition. (1842) A petition filed with a bank
ruptcy court by a debtor seeking protection from
creditors. Also termed bankruptcy petition; debtor's
petition. [Cases: Bankruptcy (:::::>2257.)
2. In some states, the first pleading in a lawsuit; COM
PLAINT. [Cases: Pleading C=38.5.] 3. Patents. A patent
applicant's request to a patent office's administrative
head for supervision of a procedural or jurisdictional
matter related to the patent application. petition,
vb.
petition de droit. See PETITION OF RIGHT.
petitioner |
the patent application. petition,
vb.
petition de droit. See PETITION OF RIGHT.
petitioner. (I5c) A party who presents a petition to a
court or other official body, esp. when seeking relief
on appeal. -Also termed (archaically) plaintiff in
error. Cf. RESPONDENT (2). [Cases: Appeal and Error
petition for access. Patents. Application to inspect a
patent application, made by someone who does not
usu. have the authority to do so. -The petition must
demonstrate a special need for access, and show that
the applicant has been notified of the petition. The
patent applicant is entitled to a hearing before access
is granted. [Cases: Patents
petition in bankruptcy. A formal written request,
presented to a bankruptcy court, seeking protection
for an insolvent debtor . The debtor (in a voluntary
bankruptcy) or the debtor's creditors (in an involun
tary bankruptcy) can file such a petition to initiate a
bankruptcy proceeding. [Cases: Bankruptcy (:::::>2257,
2290.]
petition of right. 1. (cap.) One of the four great charters
of English liberty (3 Car. I (1628), establishing that
"no man be compelled to make or yield any gift, loan,
benevolence, tax, or such like charge, without common
consent by act of parliament." The other three great
charters are Magna Carta, the Habeas Corpus Act
(31 Car. 2 (1679, and the Bill of Rights (I W. & M.
(1689)).2. Hist. A proceeding in chancery by which
a subject claims that a debt is owed by the Crown or
that the Crown has broken a contract or wrongfully
detained the subject's property. -Although the petition
is addressed directly to the Crown, the courts adju
dicate the claim just as in an action between private
parties. Also termed petition de droit. petition to make special. Patents. A petition asking
the U.S. Patent and Trademark Office to expedite a
patent prosecution. -Special processing is available,
for example, in favored areas ofscience (such as cancer
research and energy conservation), where the inventor
is sick or elderly, and where infringement is already
taking place. [Cases: Patents (:::::> 104.]
petit juror. See JUROR.
petit jury. See JURY.
petit larceny. See LARCENY.
petitor (pet-;H;lr), n. [Latin) Roman law. A plaintiff in a
civil action; ACTOR (4).
petitorium (pet-;l-tor-ee-;lm). See petitory action under
ACTION (4).
petitory action. See ACTION (4).
petitory suit. See petitory action under ACTION (4).
petit serjeanty. See SERJEANTY.
petit treason. See petty treason under TREASON.
Petrine privilege. Eccles. law. The Pope's power to
dissolve a marriage between a baptized spouse and
an unbaptized spouse when the Pauline Privilege
is unavailable and the dissolution would be benefi
cial to the interests of the Church. The privilege is
usu. exercised to dissolve a previous marriage of a
Roman Catholic. But sometimes it is applied in the
case of a baptized non-Catholics who wishes to marry
a Catholic. On rare occasions, the privilege has also
been extended to dissolve the marriage of two unbap
tized non -Catholics ifone of them wishes to marrv a
Catholic. Cf. PAULINE PRIVILEGE. '
petroleum-conservation law. Oil &gas. A state law that
limits the rule ofcapture and defines the correlative
rights doctrine by regulating the drilling and operation
ofoil-and-gas wells. -Petroleum-conservation laws are
intended to prevent waste and correlative rights.
[Cases: Mines and Minerals 92.14,92.28.J
pettifogger (pet-i-fog-;lr), n. (16c) 1. A lawyer lacking in
education, ability, sound judgment, or common sense.
2. A lawyer who douds an issue with insignificant
details. -pettifoggery (pet-i-fog-dr-ee), n.
pet trust. See TRUST.
petty, adj. (16c) Relatively insignificant or minor <a petty
crime>. Cf. GRAND.
petty assize. See ASSIZE (6).
petty average. See particular average under AVERAGE.
petty cash. See CASH.
petty jury. See petit jury under fURY.
petty larceny. See petit larceny under LARCENY.
petty offense. See OFFENSE (1).
petty officer. See OFFICER (2).
petty patent. See UTILITY MODEL.
petty sessions. Hist. English law. Sessions ofjustice-of
the-peace court held to try minor misdemeanors sum
marily (I.e., without a jury).
1263 pickery
petty theft. See THEFT.
petty treason. See TREASON.
p.fat. abbr. PRAEFATUS.
PFPA. abbr. PENTAGON FORCE PROTECTION AGENCY.
PGS. abbr. See pictorial, graphic, and sculptural work
under WORK (2).
phantom jury. See shadow jury under JURY.
phantom stock. See STOCK.
phantom stock plan. A long-term benefit plan under
which a corporate employee is given units having the
same characteristics as the employer's stock shares . It
is termed a "phantom" plan because the employee does
not actually hold any shares but instead holds the right
to the value of those shares. -Also termed shadow
stock plan. [Cases: Labor and Employment (:;:::::>420.]
phenotype. Patents. A living organism's physical charac
teristics and behavior. A patent on living matter must
disclose its genetic makeup rather than just describe its
phenotype. Cf. GENOTYPE.
Philadelphia lawyer. (I788) A shrewd and learned
lawyer . This term can have positive or negative con
notations today, but when it first appeared (in colonial
times), it carried only a positive sense deriving from
Philadelphia's position as America's center oflearning
and culture.
philosophie du droit. See ethical jurisprudence under
JURISPRUDENCE.
philosophy oflaw. See general jurisprudence (2) under
JURISPRUDENCE.
phishing, n. Slang. The sending of a fraudulent elec
tronic communication that appears to be a genuine
message from a legitimate entity or business for the
purpose of inducing the recipient to disclose sensitive
personal information. Cf. BOILER-ROOM TRANSACTION;
TELESCAM.
Phonograms Convention. See GENEVA PHONOGRAMS
CONVENTION.
phonorecord (foh-noh-rek-drd). (1968) A physical
object (such as a phonographic record, cassette tape,
or compact disc) from which fixed sounds can be
perceived, reproduced, or otherwise communicated
directly or with a machine's aid . The term is fairly
common in copyright contexts since it is defined in the
U.S. Copyright Act of 1976 (17 USCA 101). [Cases:
Copyrights and Intellectual Property ~10.2.]
photofit. See IDENTIKIT.
p.h.v. abbr. PRO HAC VICE.
phylacist (fI-l;:l-sist), n. Archaic. A jailer. -Also spelled
phylasist.
physical child endangerment. See CHILD ENDANGER
MENT.
physical cruelty. See CRUELTY.
physical custody. (1884) 1. Custody ofa person (such as
an arrestee) whose freedom is directly controlled and limited. 2. Family law. The right to have the child live
with the person awarded custody by the court. -Also
termed residential custody. [Cases: Child Custody
147,209.] 3. Possession ofa child during visitation.
physical diagnosis. See DIAGNOSIS.
physical disability. See DISABILITY (2).
physical endangerment. See physical child endanger
ment under CHILD ENDANGERMENT.
physical evidence. See real evidence (1) under EVIDENCE.
physical fact. See FACT.
physical-facts rule. (1923) Evidence. The principle that
oral testimony may be disregarded when it is incon
sistent or irreconcilable with the physical evidence in
the case. Also termed doctrine ofincontrovertible
physical facts; incontrovertible-physical-facts doctrine.
[Cases: Criminal Law ~553; Evidence ~-:>588.1
physical force. See actual force under FORCE.
physical harm. See HARM.
physical hazard. See HAZARD (2).
physical-impact rule. See IMPACT RULE.
physical impossibility. See factual impossibility under
IMPOSSIBILITY.
physical incapacity. See IMPOTENCE.
physical injury. See bodily injury under INJURY.
phYSical-inventory accounting method. See ACCOUNT
INGMETHOD.
physical necessity. See NECESSITY.
physical neglect. See NEGLECT.
physical-proximity test. (1955) Criminal law. A com
mon-law test for the crime of attempt, fOCUSing on
how much more the defendant would have needed to
do to complete the offense. See ATTEMPT (2). [Cases:
Criminal Law ~44.]
physical shock. See SHOCK.
physical taking. See TAKING (2).
physician-assisted suicide. See assisted suicide under
SUICIDE.
physician-client privilege. See doctor-patient privilege
under PRIVILEGE (3).
physician-patient privilege. See doctor-patient privilege
under PRIVILEGE (3).
physician's directive. See ADVANCE DIRECTIVE (2).
P.I. abbr. 1. See personal injury under INJURY. 2. Private
investigator.
piacle (pr-d-bl), n. Archaic. A serious crime.
piafraus (pr-;:l fraws). [Latin "piOUS fraud"] A subterfuge
or evasion considered morally justifiable; esp., evasion
or disregard of the law in the interests of a religious
institution, such as the church's circumventing the
mortmain statutes.
picaroon (pik-~-roon). A robber or plunderer.
pickery. Hist. Scots law. Petty theft.
picketing 1264
picketing. (1832) The demonstration by one or more
persons outside a business or organization to protest
the entity's activities or policies and to pressure the
entity to meet the protesters' demands; esp . an employ
ees' demonstration aimed at publicizing a labor dispute
and influencing the public to withhold business from
the employer. Picketing is usu. considered a form of
fair persuasion of third persons if access to the place
of business is not materially obstructed. Cf. BOYCOTT;
STRIKE.
common-situs picketing. The illegal picketing by union
workers of a construction site, stemming from a
dispute with one ofthe subcontractors. [Cases: Labor
and Employment~' 1381.]
informational picketing. Picketing to inform the public
about a matter of concern to the union.
organizational picketing. Picketing by a union in an
effort to persuade the employer to accept the union
as the collective-bargaining agent of the employees;
esp., picketing by members of one union when the
employer has already recognized another union as
the bargaining agent for the company's employees.
Also termed recognition picketing.
secondary picketing. The picketing ofan establishment
with which the picketing party has no direct dispute
in order to pressure the party with which there is
a dispute. See secondary boycott under BOYCOTT;
secondary strike under STRIKE. [Cases: Labor and
Employment ~1411.]
unlawful picketing. Picketing carried on in violation
oflaw, as when the picketers use threats or violence to
dissuade other employees from returning to work.
pickpocket. (16c) A thief who steals money or property
from the person of another, usu. by stealth but some
times by physical diversion such as bumping into or
pushing the victim.
pickpocketing, n. See larceny from the person under
LARCENY.
pickup tax. See TAX.
pictorial, graphic, and sculptural work. See WORK (2).
piecemeal zoning. See partial zoning under ZONING.
piecework. Work done or paid for by the piece or job.
piepowder court (pI-pow-dar). Hist. In medieval
England, a court having jurisdiction over a fair or
market and preSided over by the organizer's steward.
The name is a corruption of two French words (pied
and poudre) meaning" dusty feet." -Also termed court
ofpiepowder. Also spelled piepoudre; piedpoudre;
pipowder; py-powder.
piercing the corporate veil. (1928) lhe judicial act of
imposing personal liability on otherwise immune cor
porate officers, directors, or shareholders for the cor
poration's wrongful acts. -Also termed disregarding
the corporate entity; veil-piercing. See CORPORATE VEIL.
[Cases: Corporations ~1.4(1).]
"[C]ourts sometimes apply common law prinCiples to
'pierce the corporate veil' and hold shareholders personally liable for corporate debts or obligations. Unfortunately,
despite the enormous volume of litigation in this area, the
case law fails to articulate any sensible rationale or policy
that explains when corporate existence should be disre
garded. Indeed, courts are remarkably prone to rely on
labels or characterizations of relationships (such as 'alter
ego,' 'instrumentality,' or 'sham') and the decisions offer
little in the way of predictability or rational explanation
of why enumerated |
rumentality,' or 'sham') and the decisions offer
little in the way of predictability or rational explanation
of why enumerated factors should be decisive." Barry R.
Furrow et aI., Health Law 5-4, at 182 (2d ed. 2000).
Pierringer release. See RHEASE (2).
pigeon drop. See JAMAICA~ SWITCH.
piggyback registration rights. See REGISTRATION
RIGHTS.
pigneratio. See PIG~ORATIO (1).
pigneratitia actio. See ACTIO.
pignorate (pig-nCl-rayt), vb. (17c) 1. To give over as
a pledge; to pawn. 2. To take in pawn. Cf. OPPI
GNORATE. pignorative, adj.
pignoratio (pig-n;)-ray-shee-oh), n. [Latin] L Roman law.
The real contract (pignus) under which the a debtor
handed something over to a creditor as security; the act
of depositing as a pledge. Also spelled pigneratio. 2.
Civil law. The impounding ofanother's cattle (or other
animals) that have damaged property until the cattle's
owner pays for the damage. Pi. pignorationes (pig-nCl
ray -shee-oh -neez).
pignoratitia actio (pig-n;)-ra-tish-ee-a ak-shee-oh).
[Latin] Roman law. An action founded on a pledge,
either by the debtor (an action directa) or by a creditor
(an action contraria). Cf. cautio pignoratitia under
CAUTIO.
pignorative contract. See CONTRACT.
pignoris capio (pig-na-ris kap-ee-oh). [Latin "taking
a pledge"] Roman law. A form of extrajudicial execu
tion by which a creditor took a pledge from a debtor's
property.
pignus (pig-nCls), n. [Latin "pledge"] 1. Roman & civil
law. (ital.) A bailment in which goods are delivered
to secure the payment of a debt or performance of an
engagement, accompanied by a power ofsale in case of
default. This type of bailment is for the benefit of both
parties. Also termed pawn; pledge. See PIGNORATIO.
2. A lien. Pi. pignora or pignera.
pignus judiciale (pig-nas joo-dish-ee-ay-lee). [Latin]
Civil law. The lien that a judgment creditor has on the
property of the judgment debtor .
pignus legale (pig-n;)s la-gay-lee). [Latin] Civil/aw. A
lien arising by operation of law, such as a landlord's
lien on the tenant's property.
pignus praetorium (pig-n<Js pri-tor-ee-<Jm). [Latin "a
magisterial pledge"] Roman law. A pledge given to a
creditor by order of a magistrate.
PIH. abbr. OFFICE OF PUBLIC AND INDIAN HOUSING.
pilferage (pil-far-ij), n. (I8c) 1. The act or an instance
of stealing. 2. The item or items stolen. See LARCENY;
THEFT. pilfer (pH-fClr), vb.
pill. See POISON PILL.
pillage (pH-ij), n. 1. The forcible seizure of another's
property, esp. in war; esp., the wartime plundering of
a city or territory. 2. The property so seized or plun
dered; BOOTY. -Also termed plunder. [Cases: War and
National Emergency C~2l.] -pillage, vb.
pillory (pil-<l-ree), n. Hist. A punishment instrument
consisting ofa wooden framework with holes through
which an offender's head and hands are placed and
secured. A person put in a pillory usu. had to stand
rather than sit (as with the stocks). Cf. STOCKS.
finger pillory. Hist. Eccles. law. A miniature stock used
to confine the fingers of a person who misbehaved
during church services.
pilot. 1. A person in control of an airplane. 2. Maritime
law. A person in control ofa vessel.
bar pilot. See BRANCH PILOT.
branch pilot. A pilot, esp. one who is trained and
licensed to navigate rivers and their tributaries . The
term originated in England when pilots were licensed
to navigate the River 'Thames and its tributaries.
Also termed bar pilot. See TRINITY HOUSE. [Cases:
Pilots
compulsory pilot. A ship pilot entitled by law to guide a
ship for a particular purpose, such as piloting the ship
into harbor . The compulsory nature ofthe appoint
ment relieves the vessel's owner ofpersonal liability if
the pilot causes a collision. Cf. voluntary pilot. [Cases:
Pilots c;::::,7.]
"The compulsory pilot presents a special problem. Statutes
that impose a fine or imprisonment for the failure to take a
pilot obviously create compulsory pilotage. Some statutes,
however, allow the ship to refuse the pilot provided she
pays his fee or half of it ('half-pilotage'). The Supreme
Court has indicated that it does not regard the tendering
of this alternative as amounting to compulsion. It makes
a difference, because it is pretty well settled that if the
pilotage is 'compulsory' the respondeat superior nexus
is broken, and the shipowner cannot be held personally
liable for the fault of the pilot resulting in collision. The
ship's liability in rem. however, is unaffected by the fact
that the pilotage is compulsory. This is one of the more
striking consequences of the endowment of the ship with
a juristic personality independent of that of her owner,"
Grant Gilmore & Charles L. Black Jr., The Law of Admiralty
7-16, at 520-21 (2d ed. 1975).
voluntary pilot. A ship pilot who controls a ship with
the permiSSion of the vessel's owner . The vessel's
owner is personally liable for damage resulting from
a collision caused by a voluntary pilot. Cf. compul
sory pilot.
"If a vessel is in the hands of a harbor pilot at the time of
the collision, the question arises whether the fault of the
pilot is imputed to the vessel owner or operator. American
law draws an unwarranted distinction between the 'volun
tary pilot: who is taken on voluntarily, and the 'compulsory
pilot; who is mandated by a statute or local regulation.
The voluntary pilot is considered to be the same as any
crew member, and his fault is fully attributable to the
vessel owner. A compUlsory pilot's fault, however, cannot
be imputed to the shipowner personally; the doctrine of
respondeat superior does not apply. At most, the vessel
is liable in rem since the compulsory pilot's negligence is attributable to the ship. The distinction makes little sense
in that it throws the loss upon potentially innocent parties
and ignores the fact that the vessel owner commonly
carries insurance against this liability. In any colliSion case,
therefore, care should be taken to assert a maritime lien
and to sue the vessel in rem if a compulsory pilot may be
involved," Thomasj. Schoenbaum, Admiralty and Maritime
Law 13-1, at 450-51 (1987).
pilotage (pl-I.:;-tij). 1. The navigating of vessels; the
business of navigating vessels. [Cases: Pilots c;::::, 14.]
2. Compensation that a pilot receives for navigating a
vessel, esp. into and out ofharbor or through a channel
or passage. [Cases: Pilots c;::::,9.]
compulsory pilotage. A requirement, imposed by law
in some jurisdictions, that vessels approaching or
leaVing a harbor must take on a licensed pilot to guide
the vessel into or out ofthe harbor. [Cases: Pilots c;::::,
7.)
half-pilotage. Compensation equaling half the value of
services that a pilot has offered to perform . Ship
owners can avoid compulsory pilotage in some juris
dictions by payment of half-pilotage. [Cases: Pilots
c;::::, 11.]
pimp, n. (17c) A person who solicits customers for a
prostitute, usu. in return for a share ofthe prostitute's
earnings. See PANDERING (1). Cf, BAWD. [Cases: Pros
titution c;::::, 17.] pimp, vb. -pimping, n.
pincite. See pinpoint citation under CITATION (3).
pinkerton. Slang, A private detective or security guard,
usu. one who is armed. The name comes from the
Pinkerton Detective Agency, the first private detective
agency in the United States, established in 1852.
Pinkerton rule. (1979) Criminal law. The doctrine
imposing liability on a conspirator for all offenses
committed in furtherance of the conspiracy, even if
those offenses are actually performed by coconspira
tors. Pinkerton v. United States, 328 U.S. 640, 66 S.Ct.
1180 (1946). [Cases: Conspiracy c;::::,41.)
pink sheet. A daily publication listing over-the-counter
stocks, their market-makers, and their prices. -Printed
on pink paper, pink sheets are published by the National
Quotation Bureau, a private company. Also termed
National Daily Quotation Service.
pink slip. Slang. A notice ofemployment termination
given to an employee by an employer.
pinpoint citation. See CITATION (3).
PINS. abbr. PERSON IN NEED OF SUPERVISION.
pioneer drug. See DRUG.
pioneer patent. See PATENT (3).
pious gift. See charitable gift under GIFT.
pious use. See USE (1).
Pipe Rolls. Hist. The Exchequer's records ofroyal revenue,
including revenue from feudal holdings, judicial fees,
and tax revenue collected by the sheriffs . 'The Pipe
Rolls comprise 676 rolls, covering the years 1131 and
1156 to 1833 (except for gaps in 1216 and 1403). Also
termed Great Rolls ofthe Exchequer.
1266 PIR
'The Pipe rolls (so called possibly because of their pipe-like
appearance when rolled up and stacked) were the rolls
of the Exchequer and consist of parchment skins sewn
together. Roger of Salisbury, Henry I's Treasurer, had estab
lished a rudimentary national financial system and the Pipe
roll recording financial details at the end of Henry's reign
is in existence .... The rolls contain much information
concerning royal debtors, administration, and personnel of
the King's government." L.B. Curzon, English Legal History
64-65 (2d ed. 1979).
PIR. abbr. PRESENTENCE INVESTIGATION REPORT.
piracy, n. (16c) 1. Robbery, kidnapping, or other criminal
violence committed at sea. [Cases: Criminal Law
45.50.] 2. A similar crime committed aboard a plane or
other vehicle. 3. HIJACKING. [Cases: Aviation G..'-::> 16.]
air piracy. (194S) The crime of using force or threat
to seize control of an aircraft; the hijacking of an
aircraft, esp. one in flight. -Also termed aircraft
piracy. [Cases: Aviation (;::::c 16.]
4. The unauthorized and illegal reproduction or dis
tribution of materials protected by copyright, patent,
or trademark law. See INFRINGEMENT. [Cases: Copy
rights and Intellectual Property Patents (;::::c
226; Trademarks (;::::c 1418.] pirate, vb. piratical
(pI-rat-<l-k<lI), adj. -pirate, n.
"[TJhe test of piracy [is] not whether the identical language,
the same words, are used, but whether the substance of the
production is unlawfully appropriated." Eaton S. Drone. A
Treatise on the Law ofProperty in Intellectual Productions
97 (1879).
"[I]n some countries the problem is what might be called
the 'cycle of piracy' ~..... legitimate copyright owners refuse
to sell in the country because of the piracy problem, which
means that the only way the public can obtain the goods
it wants is to turn to piracy. This in turn only strengthens
the resolve of copyright owners not to do business in the
country." Intellectual Property in the New Technological Age
514 (Robert P. Merges et aL eds., 1997).
video piracy. The illegal copying and sale or rental of
copyrighted motion pictures.
pirate recording. Copyright. An unauthorized copy
of the sounds on a copyright-protected recording,
including digital duplication made available over the
Internet. Sometimes also termed bootleg record
ing. [Cases: Copyrights and Intellectual Property (;::::c
67.2.]
piscary. 1. See FISHERY (1). 2. See common ofpiscary
under COMMON (1).
pit and gallows. Hist. Scots law. An ancient form of
capital punishment for theft by which a condemned
woman was drowned in a pit and a condemned man
was hanged on a gallows.
PIT!. abbr. Principal, interest, taxes, and insurance
the components of a monthly mortgage payment.
P.,. See presiding judge under JUDGE.
PKPA. abbr. PARENTAL KIDNAPPING PREVENTION ACT.
pI. abbr. PLACITUM (8).
P.L. abbr. PUBLIC LAW, placard (plak-ahrd or plak-<lrd). 1. Hist. An official
document, such as a license or permit. 2. An adver
tisement posted in a public place.
place land. See INDEMNITY LAND.
placement.!. The act ofselling a new issue ofsecurities
or arranging a loan or |
MNITY LAND.
placement.!. The act ofselling a new issue ofsecurities
or arranging a loan or mortgage. 2. The act of finding
employment for a person, esp. as done by an employ
ment agency.
place ofabode. (16c) A person's residence or domicile.
See ABODE; RESIDENCE; DOMICILE. [Cases: Domicile
place of business. (16c) A location at which one carries
on a business. Cf. DOMICILE (2). [Cases: Corporations
(;::::c52.]
principal place ofbusiness. (lS25) The place of a cor
poration's chief executive offices, which is typically
viewed as the "nerve center. [Cases: Corporations ~~,
52, 503(1).]
place ofcontracting. (ISc) The country or state in which
a contract is entered into. The place ofcontracting is
not necessarily the place where the document is signed;
another location be designated in the contract.
[Cases: Contracts
place of delivery. (17c) The place where goods sold are
to be sent by the seller. If no place is specified in the
contract, the seller's place ofbusiness is usu. the place
ofdelivery. UCC 2-308. [Cases: Sales C-=>79.]
place ofemployment. (17c) The location at which work
done in connection with a business is carried out; the
place where some process or operation related to the
business is conducted.
place ofperformance. The place where a promise is to be
performed, either by specific provision or by interpreta
tion ofthe language of the promise. [Cases: Contracts
(;::::c20S.]
place ofwrong. The place. esp. the state, where the last
event necessary to make an actor liable for an alleged
tort takes place. [Cases: Torts (;::::c 103.]
place-of-wrong law. See LEX LOCI DELICTI.
place-of-wrong rule. See LEX LOCI DELICTI.
placer claim. See MINING CLAIM.
placita (plas-<l-ta), n. [Latin] pl. PLACITUM.
placitabile (plas-<l-tay-b<l-lee), adj. [Law Latin] That may
be pleaded; pleadable.
placita communia (plas-a-t<l b-myoo-nee-<l). [Latin]
Common pleas; civil actions between subject and
subject.
placita coronae (plas-<l-t<l b-roh-nee), [Latin] Pleas of
the Crown; criminal actions.
placita juris (plas-<l-ta joor-is). [Law Latin "pleas oflaw"]
Hist. Positive statements or gUiding principles of the
law, in contrast to legal conclusions or maxims.
placitare (plas-<l-tair-ee), vb. [Law Latin] To plead; to
bring an action in a court oflaw.
placitory (plas-d-tor-ee), adj. [Law Latin] Of or relating
to pleas or pleading.
placitum (plas-d-tdm), n. [Latin] Hist. 1. Roman law. An
imperial constitution. 2. A judicial decision. 3. A court;
a judicial tribunal. 4. A judicial proceeding; a trial. 5. A
fine, mulct, or pecuniary punishment. 6. A pleading or
plea. 7. A paragraph or section of a title or page where
the paint decided in a case is set forth separately. -
Abbr. (in sense 7) pI. PI. placita.
placitum et conventio. See consensus ad idem under
CONSENSUS.
placitumfractum (plas-d-tdm frak-tam). [Law Latin]
Hist. A day past or lost to the defendant.
placitum nominatum (plas-a-tam nom-a-nay-tam).
[Law Latin] Hist. The day appOinted for a defendant to
appear and plead.
placuit reg; et concilio suo (plak-yoo-it ree-jI et kan-sil
ee-oh s[y]oo-oh). [Law Latin] Hist. It has pleased the
king and his council.
plagiarism. (17c) 1he deliberate and knOWing presen
tation of another person's original ideas or creative
expressions as one's own. -Generally, plagiarism is
immoral but not illegal. Jf the expression's creator gives
unrestricted permission for its use and the user claims
the expression as original, the user commits plagia
rism but does not violate copyright laws. Ifthe original
expression is copied without permission, the plagiarist
may violate copyright laws, even if credit goes to the
creator. And if the plagiarism results in material gain,
it may be deemed a passing-off activity that violates
the Lanham Act. It can also be a criminal act under 17
USCA 5-6. Cf. f:-.rFRINGEMENT. [Cases: Copyrights
and Intellectual Property <>53(1).] -plagiarize
(play-jd-nz), vb. plagiarist (play-ja-rist), n.
"Plagiarism, which many people commonly think has to do
with copyright, is not in fact a legal doctrine, True plagia
rism is an ethical, not a legal, offense and is enforceable by
academic authorities, not courts. Plagiarism occurs when
someone a hurried student, a neglectful professor, an
unscrupulous writer -falsely claims someone else's words,
whether copyrighted or not, as his own. Of course, if the
plagiarized work is protected by copyright, the unauthor
ized reproduction is also a copyright infringement," Paul
Goldstein, Copyright's Highway 12 (1994),
"That the supporting evidence for the accusation of plagia
rism may on occasion be elusive, insufficient, or uncertain,
is not the same as thinking that the definition of plagia
rism is uncertain. The gray areas may remain resistant to
adjudication without being resistant to definition. It may
be perfectly clear what constitutes plagiarism ('using the
work of another with an intent to deceive') Without its being
clear that what faces us is truly a case of this," Christopher
Ricks, "Plagiarism," 97 Proceedings ofthe British Academy
149,151 (1998),
plagiarius (play-jee-air-ee-as), n. [Latin] Roman law. A
kidnapper.
plagium (play-jee-am), n. [Latin] Roman law. The act of
kidnapping, esp. a slave or child, which included har
boring another's slave. -Also termed crimen plagii.
plaideur (play-or pie-dar), n. [Law French "pleader"]
Archaic. An attorney at law; an advocate. plaidoyer (ple-dwah-yay), n. [French) Hist. An advocate's
plea.
plain bond. See DEBENTURE (3).
plain error. See ERROR (2).
plain-feel doctrine. (1984) Criminal procedure. The
principle that a police officer, while conducting a legal
pat-down search, may seize any contraband that the
officer can immediately and clearly identify, by touch
but not by manipulation, as being illegal or incrimi
nating. Also termed plain-touch doctrine. [Cases:
Searches and Seizures (..':::>47.1.]
plain-language law. (1978) Legislation requiring
nontechnical, readily comprehensible language in
consumer contracts such as residential leases or insur
ance policies. -Many of these laws have genUinely
simplified the needlessly obscure language in which
consumer contracts have traditionally been couched.
[Cases: Antitrust and Trade Regulation <>126; Insur
ance (...'=' 1773.]
plain-language movement. (1978) 1. The loosely orga
nized campaign to encourage legal writers and business
writers to write clearly and concisely without
legalese while preserving accuracy and precision.
2. The body of persons involved in this campaign.
plain meaning. See MEANING.
plain-meaning rule. (1937) 1. The rule that ifa writing,
or a provision in a writing, appears to be unambiguous
on its face, its meaning must be determined from the
writing itself without resort to any extrinsic evidence.
Though often applied, this rule is often condemned as
Simplistic because the meaning ofwords varies with the
verbal context and the surrounding circumstances, not
to mention the linguistic ability ofthe users and readers
(including judges). Cf. GOLDEN RULE; MISCHIEF RULE;
EQUITY-OF-THE STATUTE RULE. [Cases: Contracts <>
143,152; Statutes 188.]
"On its positive side. the plain meaning rule states a tautol
ogy: Words should be read as saying what they say, The
rule tells us to respect meaning but it does so without
disclosing what the specific meaning is. At best, it reaffirms
the preeminence of the statute over materials extrinsic to
it. In its negative aspect, on the other hand, the rule has
sometimes been used to read ineptly expressed language
out of its proper context. in violation of established prin'
ciples of meaning and communication, To this extent it
is an impediment to interpretation." Reed Dickerson, The
Interpretation and Application ofStatutes 229 (1975).
2. ORDINARY-MEANING RULE.
plain-sight rule. See PLAIN-VIEW DOCTRINE.
plaint. 1. Archaic. A complaint, esp. one filed in a replevin
action. See COMPLAfNT (1). 2. Civil law. A complaint
or petition, esp. one intended to set aside an allegedly
invalid testament.
plaintiff. (14c) The party who brings a civil suit in a court
oflaw. -Abbr. pltf. Cf. DEFENDANT.
involuntary plaintiff. A plaintiff who is joined in a
lawsuit by court order when the party's joinder is
imperative for the litigation and the party is subject
to the court's jurisdiction but refuses to join the suit
1268 plaintiff in error
voluntarily. _ Under Federal Rule ofCivil Procedure
19(a), a party is usu. joined as a defendant but may be
joined as an involuntary plaintiff in "a proper case."
[Cases: Federal Civil Procedure ~201; Parties
18.]
use plaintiff. See USE PLAINTIFF.
plaintiff in error. (17c) Archaic. 1. See APPELLANT. 2.
See PETITIONER.
plaintiff's-viewpoint rule. The principle that courts
should measure the amount in controversy in a case
by analyzing only the amount of damages claimed by
the plaintiff. [Cases: Federal Courts ~339.J
plain-touch doctrine. See PLAIN-FEEL DOCTRINE.
plain-vanilla swap. See INTEREST-RATE SWAP.
plain-view doctrine. (1963) Criminal procedure. The rule
permitting a police officer's warrantless seizure and use
as evidence ofan item seen in plain view from a lawful
position or during a legal search when the officer has
probable cause to believe that the item is evidence of a
crime. Also termed clear-view doctrine; plain-sight
rule. Cf. OPEN-fIELDS DOCTRINE. [Cases: Controlled
Substances 106, 115, 131; Searches and Seizures
~471
PLAM. See price-level-adjusted mortgage under MORT
GAGE.
plan, n. 1. BANKRUPTCY PLAN. 2. EMPLOYEE BENEFIT
PLAN.
planned obsolescence. See OBSOLESCENCE.
planned-unit development. A land area zoned for a sin
gle-community subdivision with flexible restrictions
on residential, commercial, and public uses. Abbr.
PUD. Cf. RESIDENTIAL CLUSTER. [Cases: Zoning and
Planning
"A PUD is primarily an alternative to traditional zoning since
it provides a mixing of uses. The location and identification
of the permitted uses are provided on the PUD map or
plat, which closely resembles a subdivision plat. Develop
ment approval is generally granted for the PUD at one time
rather than on a lot by lot basis and in that way closely
tracks the subdivision approval process." Julian Conrad
Juergensmeyer & Thomas E. Roberts, Land Use Planning
and Development Regulation Law 7.15, at 288 (2003).
planning board. A local government body responsible
for approving or rejecting proposed building projects.
-In most jurisdictions, the planning board's deci
sions are subject to the review of the city council.
Also termed planning commission. [Cases: Zoning and
Planning <8::::>351.J
plan ofarrangement. Bankruptcy. An insolvent debtor's
written proposal for partially or completely settling
outstanding debts. [Cases: Bankruptcy ~3661.101.]
plan of rehabilitation. See BANKRUPTCY PLAN.
plan of reorganization. See BANKRUPTCY PLAN.
plan-of-the-convention doctrine. The principle that
each U.S. state, by ratifying the U.S. Constitution, has
consented to the possibility of being sued by each of
the other states, and has no immunity from such a suit under the 11th Amendment. [Cases: Federal Courts
plant patent. See PATENT (3).
Plant Patent Act. Patents. The 1930 federal law that
extended patent protection for developing "any distinct
and new" varieties of asexually reproducing plants.
Before passage of the Act, plant patents were rejected
because the subject matter was considered naturally
occurring and therefore unpatentable. 35 DSCA
161-164. -Abbr. PPA. [Cases: Patents
plant-patent claim. See PATENT CLAIM.
Plant Variety Protection Act. Patents. The 1970 federal
law that extended patent-like protection for developing
new and distinct varieties ofseed-producing plants. _ A
Certificate ofPlant Variety Protection gives the |
protection for developing
new and distinct varieties ofseed-producing plants. _ A
Certificate ofPlant Variety Protection gives the holder
exclusive rights to sell, reproduce, and develop further
hybrids from the plant. 7 USCA 2321-2582. Abbr.
PVPA. [Cases: Patents~14.]
plat. (15c) I. A small piece ofland; PLOT (1). 2. A map
describing a piece of land and its features, such as
boundaries, lots, roads, and easements. [Cases: Zoning
and Planning ~245.1
platform. A statement of principles and policies adopted
by a political party as the basis ofthe party's appeal for
public support. [Cases: Elections ~121(1).]
platform committee. See COMMITTEE.
plat map. (1941) A document that gives the legal descrip
tions ofpieces ofland by lot, street, and block number.
- A plat map is usu. drawn after the property has been
described by some other means, such as a government
survey. Once a plat map is prepared, property descrip
tions are defined by referring to the map. Plat maps are
llSll. recorded by a government agency.
plea, n. (13c) 1. An accused person's formal response
of "guilty," "not guilty," or "no contest" to a criminal
charge. Also termed criminal plea. [Cases: Criminal
Law ~267-275.1
Alford plea. See ALFORD PLEA.
blind plea. (1972) A guilty plea made without the
promise of a concession from either the judge or the
prosecutor. Cf. negotiated plea.
conditional plea. A plea of guilty or nolo contendere
entered with the court's approval and the govern
ment's consent, the defendant reserving the right to
appeal any adverse determinations on one or more
pretrial motions. -Ifan appeal is successful, the plea
is withdrawn and a new one entered. Fed. R. Crim. P.
1l(a)(2). [Cases: Criminal Law 275.3.J
guilty plea. (1942) An accused person's formal admis
sion in court of having committed the charged
offense. - A guilty plea must be made voluntarily
and only after the accused has been informed ofand
understands his or her rights. It ordinarily has the
same effect as a guilty verdict and conviction after a
trial on the merits. A guilty plea is usu. ofa plea
bargain. [Cases: Criminal Law
1269
insanity plea. See INSANITY DEFENSE.
negotiated plea. (1956) The plea agreed to by a criminal
defendant and the prosecutor in a plea bargain. See
PLEA BARGAIN. Cf. blind plea. [Cases: Criminal Law
~273.l(2).]
no-contest plea. See NO CONTEST.
nolo plea. A plea by which the defendant does not
contest or admit guilt. See Fed. R. Crim. P. l1(b); NOLO
CONTENDERE. [Cases: Criminal LawC~275.]
not-guilty plea. (1912) An accused person's formal
denial in court of having committed the charged
offense. _ The prosecution must then prove all
elements of the charged offense beyond a reason
able doubt ifthe defendant is to be convicted. [Cases:
Criminal Law C-::J299.)
provident plea. Military law. A plea that is entered
knowingly, intelligently, and consciously, and is
legally and factually consistent and accurate. [Cases:
Military Justice e:-~986.)
2. At common law, the defendant's responsive pleading
in a civil action. Cf. DECLARATION (7). [Cases: Pleading
~76-100, 101-11l.]3. A factual allegation offered in
a case; a pleading. See DEM1JRRER.
affirmative plea. See pure plea.
anomalous plea. (1851) An equitable plea in which a
party states new facts and negates some of the oppo
nent's stated facts. _ Partly confession and avoidance
and partly traverse, the plea is appropriate when the
plaintiff, in the bill, has anticipated the plea, and the
defendant then traverses the anticipatory matters.
Also termed plea not pure. Cf. pure plea.
common plea. (17c) 1. A common-law plea in a civil
action as opposed to a criminal prosecution. -Also
termed common cause; cornman suit. 2. Hist. A plea
made by a commoner.
"By 'common pleas' Magna Carta meant no more than
ordinary pleas between commoners." Alan Harding, A
Social History ofEnglish Law 51 (1966).
dilatory plea (dil-J-tor-ee). (16c) A plea that does not
challenge the merits of a case but that seeks to delay
or defeat the action on procedural grounds. [Cases:
Pleading ~101-111.49.)
"Dilatory pleas are those which do not answer the general
right of the plaintiff, either by denial or in confession
and avoidance, but assert matter tending to defeat the
particular action by resisting the plaintiff's present right
of recovery. They may be divided into two main classes:
(1) Pleas to the jurisdiction and venue. (2) Pleas in abate
ment. A minor class, sometimes recognized, is pleas in
suspension of the action." Benjamin J. Shipman, Handbook
of Common-Law Pleading 220, at 382 (Henry Winthrop
Ballantine ed., 3d ed. 1923).
double plea. (16c) A plea consisting in two or more
distinct grounds ofcomplaint or defense for the same
issue. Cf. alternative pleading under PLEADING (2);
DUPLICITY (2).
general plea. See general denial under DE~IAL. plea
issuable plea. (17c) A plea on the merits presenting a
cognizable complaint to the court. Cf. issuable defense
under DEFENSE (1).
jurisdictional plea. (1900) A plea asserting that the
court lacks jurisdiction either over the defendant or
over the subject matter of the case. Also termed
plea to the jurisdiction. [Cases: Pleading ~J104.]
negative plea. (16c) A plea that traverses some material
fact or facts stated in the bill. Also termed plea to
the action.
nonissuable plea. (1841) A plea on which a court ruling
will not decide the case on the merits, such as a plea
in abatement.
peremptory plea. (18c) A plea that responds to the
merits of the plaintiffs claim.
plea in abatement. (17c) A plea that objects to the place,
time, or method ofasserting the plaintiff's claim but
does not dispute the claim's merits. - A defendant
who successfully asserts a plea in abatement leaves the
claim open for continuation in the current action or
reassertion in a later action if the defect is cured.
Also termed abater. [Cases: Federal Civil Procedure
~740; Pleading ~106.)
plea in bar. See PLEA IN BAR.
plea in confession and avoidance. See CONFESSION
AND AVOIDANCE.
plea in discharge. (18c) A plea that the defendant has
preViously satisfied and discharged the plaintiff's
claim.
plea in equity. (17c) A special defense relying on one
or more reasons why the suit should be dismissed,
delayed, or barred. -The various kinds are (1) pleas
to the jurisdiction, (2) pleas to the person, (3) pleas
to the form ofthe bill, and (4) pleas in bar of the bill.
Pleas in equity generally fall into two classes: pure
pleas and anomalous pleas.
plea in estoppel. (1831) Common-law pleading. A plea
that neither confesses nor avoids but rather pleads a
previous inconsistent act, allegation, or denial on the
part of the adverse party to preclude that party from
maintaining an action or defense.
plea in reconvention. Civil law. A plea that sets up a
new matter, not as a defense, but as a cross-complaint,
setoff, or counterclaim. [Cases: Pleading ~143.]
plea in suspension. (1875) A plea that shows some
ground for not proceeding in the suit at the present
time and prays that the proceedings be stayed until
that ground is removed, such as a party's being a
minor or the plaintiffs being an alien enemy. [Cases:
Pleading ~105.)
plea not pure. See anomalous plea.
plea ofconfession and avoidance. See CONFESSION AND
AVOIDANCE.
plea ofprivilege. (17c) A plea that raises an objection to
the venue ofan action. See CHANGE OF VENUE. [Cases:
Venue 69.]
plea bargain 1270
plea ofrelease. (ISc) A plea that admits the claim but
sets forth a written discharge executed by a party
authorized to release the claim. See RELEASE (2).
plea puis darrein continuance (pwis dar-ayn bn-tin
yoo-;mts). [Law French "plea since the last continu
ance"] (ISc) A plea that alleges new defensive matter
that has arisen during a continuance of the case and
that did not exist at the time of the defendant's last
pleading. [Cases: Pleading
plea to further maintenance to the action. Hist. A
defensive plea asserting that events occurring after
the commencement of the action necessitate its dis
missal. The plea is obsolete because ofthe pleading
requirements in federal and state rules ofcivil pro
cedure.
plea to the action. See negative plea.
plea to the declaration. (lS20) A plea in abatement that
objects to the declaration and applies immediately to
it. -Also termed plea to the count.
plea to the jurisdiction. See jurisdictional plea.
plea to the person ofthe defendant. (1872) A plea in
abatement alleging that the defendant has a legal dis
ability to be sued.
plea to the person of the plaintiff. (1821) A plea in
abatement alleging that the plaintiff has a legal dis
ability to sue.
plea to the writ. (17c) A plea in abatement that objects
to the writ (summons) and applies (1) to the form of
the writ for a matter either apparent on the writ's face
or outside the writ, or (2) to the way in which the writ
was executed or acted on.
pure plea. (18c) An equitable plea that affirmatively
alleges new matters that are outside the bill. If
proved, the effect is to end the controversy by dis
missing, delaying, or barring the suit. A pure plea
must track the allegations of the bill, not evade it or
mistake its purpose. Originally, this was the only plea
known in equity. Also termed affirmative plea. Cf.
anomalous plea.
rolled-up plea. (1929) Defamation. A defendant's plea
claiming that the statements complained of are factual
and that, to the extent that they consist ofcomment,
they are fair comment on a matter ofpublic interest.
See FAIR COMMENT. [Cases: Libel and Slander
4S(1), 93, 94.]
special plea. (l6c) A plea alleging one or more new facts
rather than merely disputing the legal grounds of the
action or charge. _ All pleas other than general issues
are special pleas. See general issue under ISSUE (1).
plea bargain, n. (1963) A negotiated agreement between
a prosecutor and a criminal defendant whereby the
defendant pleads guilty to a lesser offense or to one of
multiple charges in exchange for some concession by the
prosecutor, usu. a more lenient sentence or a dismissal
of the other charges. Also termed plea agreement;
negotiated plea; sentence bargain. [Cases: Criminal Law C;;>273.1(2).] plea-bargain, vb. -plea-bargaining,
n.
charge bargain. (IS90) A plea bargain in which a pros
ecutor agrees to drop some ofthe counts or reduce
the charge to a less serious offense in exchange for a
plea ofeither guilty or no contest from the defendant.
[Cases: Criminal Law (:::::-273.1(2), 275.4(2).]
sentence bargain. (1973) A plea bargain in which a
prosecutor agrees to recommend a lighter sentence in
exchange for a plea ofeither guilty or no contest from
the defendant. [Cases: Criminal Law (:::::-273.1(2),
275.4(2).]
plead, vb. (l3c) 1. To make a specific plea, esp. in response
to a criminal charge <he pleaded not guilty>. [Cases:
Criminal Law (:::::-267-301.] 2. To assert or allege in a
pleading <fraud claims must be pleaded with particu
larity>. [Cases: Federal Civil Procedure C-::621, 636;
Pleading (;::J 1, IS.] 3. To file or deliver a pleading <the
plaintiff hasn't pleaded yet>.
pleader. (l3c) 1. A party who asserts a particular
pleading. 2. A person who pleads in court on behalf
of another. 3. Hist. At common law, a person who
(though not an attorney) specialized in preparing
pleadings for others. -Also termed special pleader.
4. Hist. NARRATOR.
pleading, n. (I6c) 1. A formal document in which a party
to a legal proceeding (esp. a civil lawsuit) sets forth or
responds to allegations, claims, denials, or defenses.
In federal civil procedure, the main pleadings are
the plaintiff's complaint |
, denials, or defenses.
In federal civil procedure, the main pleadings are
the plaintiff's complaint and the defendant's answer.
[Cases: Federal Civil Procedure (:::::-621; Pleading
1.]
accusatory pleading. (190S) An indictment, informa
tion, or complaint by which the government begins a
criminal prosecution.
amended pleading. (1809) A pleading that replaces an
earlier pleading and that contains matters omitted
from or not known at the time ofthe earlier pleading.
Cf. supplemental pleading. [Cases: Federal Civil Pro
cedure (;::J821-852.1; Pleading (;::J229-271.]
"An amendment is the correction of an error or the supply
ing of an omission in the process or pleadings. An amended
pleading differs from a supplemental pleading in that the
true function of the latter is to spread upon the record
matter material to the issue which has arisen subsequent to
the filing of a pleading, while matter of amendment purely
is matter that might well have been pleaded at the time
the pleading sought to be amended was filed, but which
through error or inadvertence was omitted or misstated.
It has been declared that the allowance of amendments is
incidental to the exercise of all judicial power and is indis
pensable to the ends of justice." Eugene A. Jones, Manual
of Equity Pleading and Practice 68 (1916).
anomalous pleading. (1845) A pleading that is partly
affirmative and partly negative in its allegations.
argumentative pleading. A pleading that states allega
tions rather than facts, and thus forces the court to
infer or hunt for supporting facts . Conclusory state
ments in court papers are a form of argumentative
1271
pleading. -Also termed inferential pleading. [Cases:
Federal Civil Procedure (~J641; Pleading C:;,8, 17.]
articulated pleading. (1953) A pleading that states
each allegation in a separately numbered paragraph.
[Cases: Pleadi ng <~52.J
defective pleading. (l7c) A pleading that fails to meet
minimum standards of sufficiency or accuracy in
form or substance.
hypothetical pleading. A pleading asserting that if a
certain fact is true, then a certain result must follow.
Hypothetical pleadings are generally improper.
[Cases: Federal Civil Procedure ~~675.1.]
inferential pleading. See argumentative pleading.
pleading to the merits. A responsive pleading that
addresses the plaintiff's cause of action, in whole or
in part.
responsive pleading. (1833) A pleading that replies to
an opponent's earlier pleading. See ANSWER. [Cases:
Pleading (;=76.J
sham pleading. (1825) An obviously frivolous or absurd
pleading that is made only for purposes ofvexation or
delay. Also termed sham plea:false plea; (archai
cally) deceitful plea. [Cases: Federal Civil Procedure
C-~1139; Pleading (;=359, 362(3).]
shotgun pleading. (1964) A pleading that encompasses
a wide range ofcontentions, usu. supported by vague
factual allegations.
supplemental pleading. (1841) A pleading that either
corrects a defect in an earlier pleading or addresses
facts arising since the earlier pleading was filed.
Unlike an amended pleading, a supplemental
pleading merely adds to the earlier pleading and does
not replace it. Cf. amended pleading. [Cases: Federal
Civil Procedure Cc::>861-871; Pleading (;=273.]
2. A system of defining and narrowing the issues in
a lawsuit whereby the parties file formal documents
alleging their respective positions.
alternative pleading. (1868) A form of pleading
whereby the pleader alleges two or more independent
claims or defenses that are not necessarily consistent
with each other, such as alleging both intentional
infliction of emotional distress and negligent inflic
tion ofemotional distress based on the same conduct.
Fed. R. Civ. P. 8(e)(2). -Also termed pleading in the
alternative. Cf. DUPLICITY (2); double plea under PLEA
(3). [Cases: Federal Civil ProcedureCc::>675; Pleading
(~='20, 50-53, 89.]
artful pleading. (1950) A plaintiff's disguised phrasing
of a federal claim as solely a state-law claim in order
to prevent a defendant from removing the case from
state court to federal court. [Cases: Removal ofCases
~;)25(l).J
code pleading. (1860) A procedural system requiring
that the pleader allege merely the facts of the case
giving rise to the claim or defense, not the legal con
clusions necessary to sustain the claim or establish plead over
the defense. -Also termed fact pleading. Cf. issue
pleading. [Cases: Pleading (:::;:;8,9,48.]
common-law pleading. The system ofpleading histori
cally used in the three common-law courts ofEngland
(the King's Bench, the Common Pleas, and the Exche
quer) up to 1873.
equity pleading. (18c) The system of pleading used in
courts ofequity. _ In most jurisdictions, rules unique
to equity practice have been largely supplanted by one
set ofrules ofcourt, esp. where law courts and equity
courts have merged. [Cases: Equity C:-::0128-335.]
fact pleading. See code pleading.
issue pleading. (1916) The common-law method of
pleading, the main purpose of which was to frame
an issue. Cf. code pleading. [Cases: Pleading ~1,
16,48.)
notice pleading. (1918) A procedural system requiring
that the pleader give only a short and plain statement
of the claim shOWing that the pleader is entitled to
relief, and not a complete detailing of all the facts.
Fed. R. Civ. P. 8(a). [Cases: Federal Civil Procedure
~:'673; Pleading (';216,48.)
pleading in the alternative. See alternative pleading.
special pleading. See SPECIAL PLEADING.
3. The legal rules regulating the statement of the
plaintiff's claims and the defendant's defenses <today,
pleading is a much simpler subject than it was in former
years>.
pleading the baby act. See BABY ACT, PLEADING THE.
pleading the Fifth. (1953) The act or an instance of
asserting one's right against self-incrimination under
the Fifth Amendment. -Also termed taking the Fifth.
See RIGHT AGAINST SELF-INCRIMINATION. [Cases: ''''it
nesses (;=297.]
plead (one's) belly. Hist. Slang. (Of a female defendant) to
claim pregnancy as a defense, usu. to postpone or avoid
a court's sentence of capital punishment or transporta
tion. A woman who pleaded that she was pregnant
was treated with suspicion. The judge would appoint
a jury of matrons (often consisting of 12 married
mothers) to examine the claimant (under the writ de
ventre inspiciendo). If the woman was declared to be
"quick with child" (in an advanced state of pregnancy
rather than "barely with child" or only newly or just
pOSSibly pregnant), she enjoyed a reprieve from execu
tion or transportation until after the child's birth (or
miscarriage). Because juries ofmatrons often declared
barren defendants to be pregnant, a court would keep
track of a reprieved woman to see ifthe delay was jus
tified or if she should be made to suffer the sentence
("called down") at the next session. Although the plea
and the special jury are no longer in use, the prohibi
tion against executing a pregnant woman persists in
modern law. 18 USCA 3596(b).
plead over, vb. (17c) 1. To fail to notice a defective alle
gation in an opponent's pleading before responding to
the pleading. [Cases: Pleading (;=406(3),409(3).) 2.
Hist. To plead the general issue after a defendant has
had a dilatory plea overruled. See AIDER BY PLEADING
OVER.
plead the Fifth. See TAKE THE FIFTH.
plea in abatement. See PLEA (3).
plea in avoidance. See affirmative defense under DEFENSE
(1).
plea in bar. (17c) A plea that seeks to defeat the plaintiff's
or prosecutor's action completely and permanently.
general plea in bar. (18c) A criminal defendant's plea
ofnot guilty by which the defendant denies every fact
and circumstance necessary to be convicted of the
crime charged. [Cases: Criminal Law ~299.]
special plea in bar. (l7c) A plea that, rather than
addressing the merits and denying the facts alleged,
sets up some extrinsic fact showing why a criminal
defendant cannot be tried for the offense charged .
Examples include the plea ofautrefois acquit and the
plea ofpardon. [Cases: Criminal Law ~286.]
plea in confession and avoidance. See CONFESSION AND
AVOIDANCE.
plea in discharge. See PLEA (3).
plea in equity. See PLEA (3).
plea in estoppel. See PLEA (3).
plea in justification. See affirmative defense under
DEFENSE (1).
plea in reconvention. See PLEA (3).
plea in suspension. See PLEA (3).
plea not pure. See anomalous plea under PLEA (3).
plea ofconfession and avoidance. See CONFESSION AND
AVOIDANCE.
plea of pregnancy. Hist. A plea of a woman convicted
of a capital crime to stay her execution until she gives
birth. See PLEAD (ONE'S) BELLY.
plea ofprivilege. See PLEA (3).
plea ofrelease. See PLEA (3).
plea of sanctuary. See DECLINATORY PLEA.
plea oftender. (l8c) At common law, a pleading assert
ing that the defendant has consistently been willing to
pay the debt demanded, has offered it to the plaintiff,
and has brought the money into court ready to pay the
plaintiff. See TENDER.
plea puis darrein continuance. See PLEA (3).
pleasure appointment. See APPOINTMENT (1).
plea to further maintenance to the action. See PLEA
(3).
plea to the action. See negative plea under PLEA (3).
plea to the count. See plea to the declaration under PLEA
(3).
plea to the declaration. See PLEA (3).
plea to the jurisdiction. See jurisdictional plea under
PLEA (3). plea to the person ofthe defendant. See PLEA (3).
plea to the person ofthe plaintiff. See PLEA (3).
plea to the writ. See PLEA (3).
plebeian (pli-bee-;m), n. Roman law. A member of the
Roman plebs; an ordinary citizen, not a member ofthe
upper class (patricians).
plebiscite (pleb-;J-sIt or pleb-;J-sit), n. (1860) 1. A binding
or nonbinding referendum on a proposed law, consti
tutional amendment, or significant public issue. Cf.
REFERENDUM; INITIATIVE. 2. Int'llaw. A direct vote
of a country's electorate to decide a question ofpublic
importance, such as union with another country or a
proposed change to the constitution. -plebiscitary
(pl;J-bi-s;J-ter-ee), adj.
plebiscitum (pleb-;J-SI-t;Jm), n. [Latin] Roman law. An
enactment passed at the request of a tribune by the
assembly ofthe common people (the concilium plebis).
See CONCILIUM PLEBIS. PI. plebiscita.
plebs (plebz), n. [Latin] Roman law. The common people
in ancient Rome; the general body ofcitizens, excluding
the patricians. PI. plebes (plee-beez).
pledge, n. (14c) 1. A formal promise or undertaking. Cf.
OATH. 2. The act of providing something as security
for a debt or obligation. [Cases: Pledges ~1.] 3. A
bailment or other deposit of personal property to a
creditor as security for a debt or obligation; PAWN (2).
See contract to pledge under CONTRACT. Cf. LIEN (1). 4.
The item of personal property so deposited; PAWN (1).
5. The thing so provided. -Formerly also termed safe
pledge. 6. A security interest in personal property rep
resented by an indispensable instrument, the interest
being created by a bailment or other deposit ofpersonal
property for the purpose of securing the payment of a
debt or the performance of some other duty. 7. Hist.
A person who acts as a surety for the prosecution of a
lawsuit . In early practice, pledges were listed at the
end ofthe declaration. Over time the listing ofpledges
became a formality, and fictitious names (such as "John
Doe" or "Richard Roe") were allowed. -pledge, vb.
pledgeable, adj.
"A pledge is something more than a mere lien and some
thing less than a mortgage." Leonard A. Jones, A Treatise
on the Law of Collateral Securities and Pledges 2, at 4
(Edward M. White rev., 3d ed. 1912).
"A pledge is a bailment of personal property to secure an
obligation of the bailor. If the purpose of the transaction
is to transfer property for security only, then the courts
will hold the transaction a pledge, even though in form it
may be a sale or other out- |
for security only, then the courts
will hold the transaction a pledge, even though in form it
may be a sale or other out-and-out transfer." Ray Andrews
Brown, The Law of Personal Property 128, at 622 (2d
ed. 1936).
"The pledge is as old as recorded history and is still in use,
as the presence of pawnbrokers attests. In this transaction
the debtor borrows money by physically transferring to a
secured party the possession of the property to be used
as security, and the property will be returned if the debt is
repaid. Since the debtor does not retain the use of pledged
goods, this security device has obvious disadvantages
from the debtor's point of view." Ray D. Henson, Secured
Transactions 3-1, at 17 (3d ed. 1983).
pledged account. See ACCOUNT.
1273
pledgee. One with whom a pledge is deposited. [Cases:
Pledges
pledgery. Archaic. See SURETYSHIP (1).
pledgor. One who gives a pledge to another. -Also
spelled pledger. [Cases: Pledges C=>8.]
plegiis acquietandis. See DE PLEGIIS ACQUIETANDIS.
plena aetas (plee-n<l ee-tas). [Latin] Full age. See AGE
OF MAJORITY.
plena forisfactura (plee-n::1 for-is-fak-ch::1r-<l). [Latin
"complete forfeiture"] A forfeiture ofall that one pos
sesses. [Cases: Forfeitures C=> 1.]
plena probatio. See probatio plena under PROBATIO.
plenarty (plee-n<lr-tee or plen-<lr-tee), n. Hist. The condi
tion of being full or occupied; esp., the state of a benefice
that is lawfully occupied by an incumbent.
plenary (plee-n::1-ree or plen-<l-ree), adj. (ISc) 1. Full;
complete; entire <plenary authority>. 2. (Of an
assembly) intended to have the attendance of all
members or participants <plenary session>.
plenary action. See ACTION (4).
plenary confession. See CONFESSION.
plenary guardianship. See GUARDIA!IISHIP.
plenaryjurisdiction. See JURISDICTION.
plenary power. See POWER (3).
plenary review. See JU'DICIAL REVIEW.
plenary session. See SESSION (1).
plenary suit. See SUIT.
plene (plee-nee), adv. [Latin] Fully; completely; suffi
ciently.
plene administravit (plee-nee ad-min-::1-stray-vit). [Law
Latin "he has fully administered"] Hist. A defensive
plea in which an executor or administrator asserts that
no assets remain in the estate to satisfy the plaintiffs
demand.
plene administravit praeter (plee-nee ad-min-d-stray
vit pree-t<lr). [Law Latin "he has fully administered,
except"] Hist. A defensive plea in which an executor
or administrator asserts that no assets remain in the
estate, except a stated few that are insufficient to satisfy
the plaintiff's demand.
plene computavit (plee-nee kom-pyoo-tay-vit). [Law
Latin "he has fully accounted"] Hist. A plea in an action
ofaccount render, alleging that the defendant has fully
accounted. See ACCOUNTING (3).
plenipotentiary (plen-::1-p::1-ten-shee-er-ee). A person
who has full power to do a thing; a person fully com
missioned to act for another. See minister plenipoten
tiary under MINISTER.
pleno jure (plee-noh joor-ee). [Latin] Hist. With full
right. The phrase usu. referred to a conveyance of
the full rights to property.
plenum dominium. See dominium plenum under
DOMINIUM. plus factor
plevin (plev-in), n. Archaic. An assurance or warrant;
a pledge.
Plimsoll marks. See LOAD LINE (2).
PLL. abbr. See product-liability loss under LOSS.
plot, n. (bef. 12c) 1. A measured piece ofland; LOT (1).
Cf. PLAT (1). 2. A plan forming the basis of a conspiracy.
[Cases: Conspiracy 1.1,24(1).]
plot plan. (1925) A plan that shows a proposed or present
use of a plot of land, esp. of a residential area. [Cases:
Zoning and Planning C=>24S.]
plottage. (1916) The increase in value achieved by com
bining small, undeveloped tracts ofland into larger
tracts.
plow back, vb. To reinvest earnings and profits into a
business instead of paying them out as dividends or
withdrawals. [Cases: Corporations C-'-;) 152.]
plowbote. See BOTE (1).
plowland. See CARUCATE.
plowman's fee. See FEE (2).
PLR. abbr. PUBLIC-LENDING RIGHT.
pltf. abbr. PLAINTIFF.
plunder. See PILLAGE.
plunderage. Maritime law. The embezzling of goods on
a ship.
plurality. (1803) The greatest number (esp. of votes),
regardless of whether it is a simple or an absolute
majority <a four-member plurality of the Supreme
Court agreed with this view, which received more votes
than any other>. Also termed plural majority. Cf.
MAJORITY (2).
plurality opinion. See OPINION (1).
plurality vote. See PLURALITY.
. plurality voting. 1. See PLURALITY. 2. See VOTING. I
plural majority. See PLURALITY.
plural marriage. 1. See MARRIAGE (1). 2. See POLYGAMY. ,
. plural wife. See WIFE.
pluries (pluur-ee-eez), n. [Latin "many times"] (lSc) A
third or subsequent writ issued when the previous writs
have been ineffective; a writ issued after an alias writ.
Also termed pluries writ. [Cases: Process C::>4S.]
plurinational administrative institution. lnt'llaw. An
entity deSigned to perform transnational administra
tive activities when politically oriented international
organizations and traditional international agreements
are unsuitable . These institutions usu. arise in fields
where transnational arrangements are necessary (such
as natural-resource management, transportation, or
utilities), and they are often organized as international
corporations, national agencies, or private corpora
tions.
plurium defense. See MULTIPLE ACCESS.
plus factor. A fact that supports finding that a specified
legal test has been satisfied.
1274 plus petere tempore
plus petere tempore (plds pd-ten-dI tem-pd-ree). [Latin
"to overclaim in point of time"] Roman law. To claim
before payment was due.
plus petitio (plds-p;:>-tish-ee-oh). [Latin "overclaim" or
"claiming too much"] Roman law. A claim for more
than is due; esp., the mistake ofclaiming more in one's
pleadings than is due . This was fatal to the action
under classical law. Under cognitio extraordinaria,
however, a claimant could continue the action, but
could be liable for treble damages to any person injured
by the overstated claim. Also spelled (erroneously)
pluspetitio. Also termed pluris petitio.
"A plaintiff may overclaim ... in substance (re) when he
claims a bigger amount than is due to him; in time (tempore)
when he claims before the payment is due; in place (loco),
when he claims at a place (in a city) other than that where
the payment had to be performed ... or in cause (causa)
when he claims a certain thing although the debtor had
the right to choose between two or more things. .. After
the abolition of the formula regime the pluspetitio lost its
actuality. Imperial legislation modified the severe provi
sions against overciaims.. In Justinian's law the plaintiff
lost the case only if he maliciously persisted during the
whole trial in his overclaim." Adolf Berger, Encye/opedic
Dictionary ofRoman Law 633 (1953).
plus quam tolerabile (plds kwam tol-d-rab-d-lee). [Latin]
Hist. More than can be endured . The phrase appeared
in reference to damage to crops from unavoidable
causes (vis major).
p.m. abbr. POST MERIDIEM.
PM. abbr. 1. POSTMASTER. 2. PRIME MINISTER. 3. BUREAU
OF POLITICAL-MILITARY AFFAIRS.
PMI. abbr. Private mortgage insurance. See mortgage
insurance under INSURANCE.
PMM. See purchase-money mortgage under
MORTGAGE.
PMRT. See purchase-money resulting trust under
TRUST.
PMSI. See purchase-money security interest under
SECURITY INTEREST.
pneumoconiosis. Chronic lung disease and related COI1
ditions characterized by respiratory and pulmonary
impairments and caused or aggravated by coal-dust
exposure during coal-mine employment . The disease
is usu. latent and often does not manifest until after
coal-dust exposure has ended. 20 CFR 718.201.
Also termed black-lung disease. [Cases: Labor and
Employment ~-:>2680, 2689.]
clinical pneumoconiosis. Any medically recognized
condition caused by coal-dust exposure while
working in a coal mine and characterized by large,
permanent deposits ofparticulate matter in the lungs,
coupled with the lung tissue's fibrotic reaction .
Some examples ofclinical pneumoconioses are silico
sis or silicotuberculosis, massive pulmonary fibrosis,
and anthrosilicosis. Cf.legal pneumoconiosis. [Cases:
Labor and Employment C=.)2680, 2689.]
legal pneumoconiosis. Any chronic restrictive or
obstructive pulmonary disease or impairment and related conditions arising out of coal-mine employ
ment. Cf. clinical pneumoconiosis. [Cases: Labor and
Employment C=>2680, 2689.]
P.O. abbr. 1. Post office. 2. PURCHASE ORDER.
poaching, n. The illegal taking or killing offish or
on another's land. [Cases: Fish 13(1); Game
7.] -poach, vb.
pocket immunity. See IMMUNITY (3).
pocket judgment. Hist. See STATUTE MERCHANT (1).
pocket money. See HAT MONEY.
pocket part. (1931) A supplemental pamphlet inserted
usu. into the back inside cover of a lawbook, esp. a
treatise or code, to update the material in the main text
until the publisher issues a new edition of the entire
work. Legal publishers frequently leave a little extra
room inside their hardcover books so that pocket parts
may later be added. Also termed cumulative supple
ment.
pocket veto. See VETO.
P.O.D. abbr. Pay on delivery.
POD account. See pay-an-death account under
ACCOUNT.
poena (pee-nd). [Latin] (1859) Punishment; penalty.
poena arbitraria (pee-nd ahr-bi-trair-ee-J). [Law Latin]
Hist. Arbitrary punishment; punishment left to a
judge's discretion.
poena corporalis (pee-nd kor-p;:>-ray-lis). [Latin] Hist.
Corporal punishment.
poena ordinaria (pee-nJ or-di-nair-ee-d). [Law Latin]
Hist. Ordinary punishment; punishment fixed by law.
poena pecuniary. A fine.
poenae secundarum nuptiarum (pee-nee sek-dn
dair-dm ndp-shee-air-dm). [Latin "penalties ofsecond
marriages"] Roman law. Disabilities that, for the pro
tection ofchildren ofa first marriage, are imposed on
a parent who remarries.
"If either parent re-married, the interests of the children
of the first marriage were protected (in the later Roman
Empire) by a number of legal rules the effect of which was
to confer certain benefits on the children and to impose
certain disabilities the socalled poenae secundarum
nuptiarum on the parens binubus. The most important
of these rules was that which declared that all the property
which the parens binubus had acquired gratuitously from
his or her deceased spouse, whether by way of gift, dos,
donatio propter nuptias, or testamentary disposition
the socalled lucra nuptialia should become ipso jure
the property of the children of the first marriage at the
moment of the conclusion of the second marriage, and that
onlya usufruct should be reserved for the parens binubus."
Rudolph Sohm, The Institutes; A Textbook ofthe History and
System of Roman Private Law 477 Uames Crawford Ledlie
trans., 3d ed. 1907).
poena lis (pi-nay-lis), adj. [Latin] Roman law. Imposing
a penalty; penal.
poena pilloralis (pee-nd pil-d-ray-lis). (Latin] Hist. Pun
ishment of the pillory.
1275 Polaroid test
poenitentia (pee-nd-ten-shee-d or pen-d), n. [Latin
"repentance"] Roman law. Reconsideration; changing
one's mind.
poinding (pin-ding), n. Scots law. A judgment credi
tor's seizing of a debtor's corporeal movable property
to satisfy the debt. -poind, vb.
point, n. (l3c) 1. A pertinent and distinct legal propo
sition, issue, or argument <point |
point, n. (l3c) 1. A pertinent and distinct legal propo
sition, issue, or argument <point of error>. 2. Parlia
mentary law. Any of several kinds of requests made in
a deliberative body. See REQUEST.
point ofclarification. A question about procedure or
substance.
point ofinformation. An inquiry asking a question
about a motion's merits or effect. - A point of infor
mation can be made only to seek information, not
to volunteer information. It may request an objec
tive fact or an expert opinion, but may not request
anyone -including the chair or the mover -to spec
ulate about how he or she expects or intends that the
present or future leadership will interpret or apply a
motion. See INQUIRY (2). Also termed question of
information.
point oforder. A request suggesting that the meeting
or a member is not following the applicable rules
and asking the chair enforce the rules. _ Some orga
nizations use the term "point of order" as a generic
term that also includes a parliamentary inquiry and
a question of privilege. -Also termed question of
order. See parliamentary inquiry under INQUIRY;
question ofprivilege under QUESTION (3).
point ofprivilege. A motion that raises a question of
privilege. See question ofprivilege under QUESTION
(3); RAISE A QUESTIO:-< OF PRIVILEGE.
procedural point. A request that raises a personal privi
lege relating to a member's ability to participate effec
tively in the meeting, such as the member's ability
to see or hear the proceedings. See personal privilege
under PRIVILEGE (5).
3. One percent of the face value of a loan (esp. a
mortgage loan), paid up front to the lender as a service
charge or placement fee <the borrower hoped for only
a two-point fee on the mortgage>. -Also termed
mortgage point. See MORTGAGE DISCOUNT. 4. A unit
used for quoting stock, bond, or commodity prices <the
stock closed up a few points today>. 5. A payment to
secure a loan, stated as a percentage of the loan's face
amount.
point-and-dickagreement. (2000) An electronic version
of a shrink-wrap license in which a computer user
agrees to the terms of an electronically displayed agree
ment by pointing the cursor to a particular location on
the screen and then clicking. _ Point-and-click agree
ments usu. require express acceptance only once but
may include a clause providing for a user's ongoing
acceptance of any changes to the agreement's terms,
whether or not the user is notified of the changes. See
shrink-wrap license under LICENSE. Also termed
e-contract; click-wrap license; click-wrap agreement; user agreement; website-user agreement; web-wrap
agreement. Cf. E-CONTRACT. [Cases: Copyrights and
Intellectual Property (;:::;: 107.J
point of attachment. Copyright. A connection with a
copyright-convention member nation sufficient to make
a work eligible for protection under that convention. _
For example, a work is eligible for Berne Convention
protection ifthe author is a citizen of a Berne member
nation or if the work originated in a Berne member
nation. Also termed cormectingfactor. [Cases: Copy
rights and Intellectual Property <::;:> 34.J
point oferror. (18c) An alleged mistake by a lower court
asserted as a ground for appeal. See ERROR (2); WRIT OF
ERROR. [Cases: Appeal and Error (;:::;:758.3; Criminal
Law (;:::> 1130(2).J
point of fact. A discrete factual proposition at issue in
a case.
point oflaw. (16c) A discrete legal proposition at issue
in a case.
reserved point oflaw. (1821) An important or difficult
point oflaw that arises during trial but that the judge
sets aside for future argument or decision so that tes
timony can continue. -Also termed point reserved.
point reserved. See reserved point o.flaw under POI~T
OF LAW.
points-and-authorities brief. See brief on the merits
under BRIEF (1).
point source. Environmental law. The discernible and
identifiable source from which pollutants are dis
charged. [Cases: Environmental Law (;:::;: 175.J
point system. (1955) Criminal law. A system that assigns
incremental units to traffic violations, the accumula
tion of a certain number within a year resulting in the
automatic suspension of a person's driving privileges.
[Cases: Automobiles 144.1(3).]
poisonous-tree doctrine. See FRUIT-OF-THE-POISON
OUS-TREE DOCTRINE.
poison pill. A corporation's defense against an unwanted
takeover bid whereby shareholders are granted the
right to acquire equity or debt securities at a favor
able price to increase the bidder's acquisition costs.
Often shortened to pill. See TAKEOVER DEFENSE; SHARK
REPELLANT. Cf. PORCUPINE PROVISION. [Cases: Corpo
rations (;:::;:310(1).]
"Another recent tactic is the 'poison pill' which is a condi
tional stock right that is triggered by a hostile takeover and
makes the takeover prohibitively expensive. The poison pill
is a variation of the scorched earth defense ...." Thomas
Lee Hazen, The Law of Securities Regulation 11.20, at
575 (2d ed. 1990).
Polaroid test. Trademarks. A judicial test for trademark
infringement, analyzing eight factors: (1) strength ofthe
mark, (2) similarity between the marks, (3) proximity
of the products' markets, (4) effects on market expan
sion (ability to "bridge the gap"), (5) actual confusion,
(6) the defendant's good or bad faith, (7) quality of the
products, and (8) sophistication of the buyer. Polaroid
1276 police
Corp. v. Polarad Electronics Corp., 287 F.2d 492, 495 (2d
Cir. 1961). [Cases: Trademarks C;;;, 1081.]
police, n. 1. The governmental department charged
with the preservation of public order, the promotion
of public safety, and the prevention and detection of
crime. [Cases: Municipal Corporations 180.] 2.
The officers or members of this department. [Cases:
Municipal Corporations C~184.] -police, vb.
police action. See ARMED CONFLICT.
police-assisted snicide. See suicide-by-cop under
SUICIDE.
police blotter. See ARREST RECORD.
police chief. The head of a police department.
police court. See magistrate's court (1) under COURT.
police jury. Louisiana law. The governing body of a
parish. [Cases: Counties ~38.J
police justice. See police magistrate under MAGIS
TRATE.
police magistrate. See MAGISTRATE.
police officer. A peace officer responsible for preserv
ing public order, promoting public safety, and prevent
ing and detecting crime. Cf. PEACE OFFICER. [Cases:
Municipal Corporations C::> 179.]
police power. (1821) 1. The inherent and plenary power
of a sovereign to make all laws necessary and proper
to preserve the public security, order, health, morality,
and justice. -It is a fundamental power essential to
government, and it cannot be surrendered by the leg
islature or irrevocably transferred away from govern
ment. [Cases: States C::;'21(2).]
"[lIt is possible to evolve at least two main attributes or
characteristics which differentiate the police power: it aims
directly to secure and promote the public welfare, and it
does so by restraint or compulsion." Ernst Freund, The
Police Power 3, at 3 (1904).
2. A state's Tenth Amendment right, subject to due
process and other limitations, to establish and enforce
laws protecting the public's health, safety, and general
welfare, or to delegate this right to local governments.
[Cases: States ~18.13.] 3. Loosely, the power of the
government to intervene in the use ofprivately owned
property, as by subjecting it to eminent domain. See
EMINENT DOMAIN. [Cases: Eminent Domain ~1-5.]
police science. See CRIMINAL JUSTICE (2).
police state. See STATE.
policy. (14c) 1. The general principles by which a govern
ment is guided in its management ofpublic affairs. See
PUBLIC POLICY. 2, A document containing a contract of
insurance; INSURANCE POLICY. [Cases: Insurance
1712,1713.]3. A type oflottery in which bettors select
numbers to bet on and place the bet with a "policy
writer. [Cases: Lotteries C:)3, 20.]
policy court. See COURT.
policyholder. One who owns an insurance policy, regard
less ofwhether that person is the insured party. -Also
termed policyowner. [Cases: Insurance ~1717.] policy limits. See LIABILITY LIMIT.
policy loan. See LOAN.
policy ofinsurance. See INSURANCE POLICY.
policy of the law. See PUBLIC POLICY (1).
policyowner. See POLICYHOLDER.
policy proof of interest. Insurance. Evidence -shown
by possession of a policy -that a person making a
claim has an insurable interest in the loss. -Abbr. PPI.
[Cases: Insurance ~1779-1795.1
policy reserve. See RESERVE.
policy stacking, See STACKING.
policy value. Insurance.lhe amount ofcash available to
a policyholder on the surrender or cancellation of the
insurance policy. [Cases: Insurance ~2037.]
policy year. Insurance. The year beginning on the date
that a policy becomes effective. Cf. ANNIVERSARY
DATE.
political, adj. Pertaining to politics; ofor relating to the
conduct of government.
political-action committee. (1839) An organization
formed by a special-interest group to raise and contrib
ute money to the campaigns of political candidates who
the group believes will promote its interests. -Abbr.
PAC. [Cases: Elections~317.l.J
political assessment. See ASSESSMENT.
political asylum. See ASYLUM (2).
political corporation. See public corporation (2) under
CORPORATION.
political correctness, n. (1979) 1. The inclination to
avoid language and practices that might offend anyone's
political sensibilities, esp. in racial or sexual matters. 2.
An instance in which a person conforms to this inclina
tion. -Abbr. P.e. politically correct, adj.
political corruption. See official misconduct under MIS
CONDUCT.
political crime. See POLITICAL OFFENSE.
political economy. See ECONOMY.
political gerrymandering. See GERRYMANDERING (1).
political law. See POLITICAL SCIENCE.
political liberty. 1. See LIBERTY. 2. See political right
under RIGHT.
Political-Military Affairs Bureau. See BUREAU OF
POLITICAL-MILITARY AFFAIRS.
political offense. (I8c) A crime directed against the
security or government of a nation, such as treason,
sedition, or espionage. -Under principles of interna
tionallaw, the perpetrator ofa political offense cannot
be extradited. Also termed political crime. [Cases:
Extradition and Detainers ~5.]
political party. An organization of voters formed to
influence the government's conduct and policies by
nominating and electing candidates to public office.
The United States has traditionally maintained a two
1277 polygamy
party system, which today comprises the Democratic
and Republican parties. -Often shortened to party.
political patronage. See PATRONAGE (3).
political power. The power vested in a person or body of
persons exercising any function ofthe state; the capacity
to influence the activities of the body politic. -Also
termed civil power.
sovereign political power. Power that is absolute and
uncontrolled within its own sphere. Within its
designated limits, its exercise and effective opera
tion do not depend on, and are not subject to, the
power of any other person and cannot be prevented
or annulled by any other power recognized within
the constitutional system. -Often shortened to sov
ereign power. -Also termed supreme power. [Cases:
States (;::;:, 1.]
subordinate political power. Power that, within its
own sphere ofoperation, is subject in some degree to
external control because there exists some superior
constitutional power that can prevent, restrict, direct,
or annul its operation. -Often shortened to subor
dinate power.
political question. (1808) A question that a court will
not consider because it involves the exercise of discre
tionary power by the executive or legislative branch of
government. -Also termed nonjusticiable question. cr JUDICIAL QUESTION. [Cases: Constitutional Law
(;::;:'2580-2593.]
political-question doctrine. The judicial principle that
a court should refuse to decide an issue involving the
exercise ofdiscretionary power by the executive or leg
islative branch ofgovernment. [Cases: Constitutional
Law C=2580-2593.J
political right. See RIGHT.
political science. (I7c) The branch oflearning concerned
with the study ofthe principles and conduct ofgovern
ment. -Also termed political law.
political society. See STATE (1).
political subdivision. (1827) A division of a state that
exists primarily to discharge some function of local
government. [Cases: Municipal Corporations (;::;:,54.]
political trial. See TRIAL.
political-vote privilege. See PRIVILEGE (3).
politics. 1. The science of the organization and admin
istration of the state. 2. The activity or profeSSion of
engaging in political affairs |
. The science of the organization and admin
istration of the state. 2. The activity or profeSSion of
engaging in political affairs.
polity (pol-d-tee). (16c) 1. The total governmental organi
zation as based on its goals and policies. 2. A politically
organized body or community.
polity approach. (1975) A method of resolving church
property disputes by which a court examines the struc
ture of the church to determine whether the church
is independent or hierarchical, and then resolves the
dispute in accordance with the decision of the proper
church-governing body. [Cases: ReligiOUS Societies (;::;:,
11,14.] poll, n. (I8c) 1. A sampling ofopinions on a given topic,
conducted randomly or obtained from a specified
group. 2. lhe act or process ofvoting at an election.
3. The result of the counting ofvotes. 4. (usu. pl.) The
place where votes are cast.
poll, vb. (l7c) 1. To ask how each member of (a group)
indiVidually voted <after the verdict was read, the judge
polled the jury>. [Cases: Criminal Law (;::;:,874; Federal
Civil Procedure (;::;:,2191; Trial (;::;:,325.] 2. To question
(people) so as to elicit votes, opinions, or preferences
<the committee polled 500 citizens about their views>.
3. To receive (a given number ofvotes) in an election
<the third-party candidate polled only 250 votes in the
county>.
pollicitation. Contracts. (I5c) The offer of a promise.
"By a promise. we mean an accepted offer as opposed to an
offer of a promise. or, as Austin called it, a pollicitation."
William R. Anson, Principles ofthe Law ofContract6 (Arthur
l. Corbin ed., 3d Am. ed. 1919).
poll tax. See TAX.
pollute, vb. To corrupt or defile; esp., to contaminate
the soil, air, or water with noxious substances. [Cases:
Environmental Law (;::;:, 161-389.] pollution, n.
polluter, n.
pollution exclusion. See EXCLUSION (3).
po. 10. suo. abbr. PONIT LOCO SUO.
polyandry (pol-ee-an-dree). (17c) The condition or
practice of having more than one husband at the same
time. Cf. POLYGYNY. [Cases: Bigamy(;=::> 1.]
polyarchy (pol-ee-ahr-kee). Government by many
persons. -Also termed polygarchy (pol-a-gahr-kee).
Cf. MONARCHY. -polyarchal, adj.
polygamist (pa-lig-d-mdst). 1. A person who has several
spouses Simultaneously. 2. An advocate of polygamy.
polygamy (pa-lig-a-mee), n. (16c) 1. The state or practice
of haVing more than one spouse simultaneously.
Also termed simultaneous polygamy; plural marriage.
[Cases: Bigamy 1; Marriage (;::;:, ILl 2. Hist. The
fact or practice ofhaving more than one spouse during
one's lifetime, though never simultaneously . Until
the third century, polygamy included remarriage after
a spouse's death because a valid marriage bond was
considered indissoluble. -Also termed successive
polygamy; serial polygamy; sequential marriage. Cf.
BIGAMY; MONOGAMY. -polygamous, adj. -polyga
mist, n.
"Polygamy (many marriages) is employed at times as a
synonym of bigamy and at other times to indicate the
simultaneous marriage of two or more spouses." Rollin
M. Perkins & Ronald N. Boyce, Criminal Law 458 (3d ed.
1982).
"[Tjhis one-marriage-at-a-time rule behind which the legal
systems of the West have seemingly thrown so much weight
is not what a sociologist would call a general prohibition
of polygamy. Polygamy can be simultaneous Of more than
one spouse is simultaneously present} or successive (if
spouses are married one after the other). Only simultane
ous polygamy is prohibited by the laws with which we are
here concerned. These statutes reserve the use of the word
polygamy for that kind which is not very common among
1278 polygarchy
us. They do not affect the serial form. which is so very
popular in the United States and Western Europe that ...
the law is fast changing to adapt to it." Mary Ann Glendon,
The Transformation ofFamily Law 52 (1989).
polygarchy. See POLYARCHY.
polygraph, n. (1923) A device used to evaluate truth
fulness by measuring and recording involuntary
physiological changes in the human body during
interrogation . Polygraph results are inadmissible
as evidence in most states but are commonly used by
the police as an investigative too!. -Also termed lie
detector.lCases: Criminal LawG=">388.5; Evidence G=">
150.] -polygraphic, adj. -polygraphy, n.
polygyny (pd-lij-d-nee). (I8c) The condition or practice
of having more than one wife at the same time. Cf.
POLYANDRY.
pondere, numero, et mensura (pon-ddr-ee, n[yJ
oo-mdr-oh, et men-s[yJnur-d). [Latin] Hist. By weight,
number, and measure . The phrase appeared in refer
ence to methods for determining fungibles.
4Pondere. numero, et men sura .. . These are the tests
proposed by our law, by which to ascertain whether a
certain subject falls within that class of subjects known
as fungibles, which class includes all those things which
perish in the using, and which can be estimated gener
ally by weight, number and measure; such, for example,
are corn, wine, money, &c." John Trayner, Trayner's Latin
Maxims 462 (4th ed. 1894).
pone (poh-nee). [Latin "put"j Hist. An original writ used
to remove an action from an inferior court (such as a
manorial court or county court) to a superior court.
lhe writ was so called from the initial words ofits
mandate, which required the recipient to "put" the
matter before the court issuing the writ.
ponendis in assisis (pd-nen-dis in a-sl-zis). [Latin "to be
placed in assizes"] Hist. A writ directing the sheriff to
empanel a jury for an assize or real action.
ponendo sigillum ad exceptionem. See DE PONENDO
SIGILLUM AD EXCEPTIONEM.
ponendum in ballium (pd-nen-d"m in bal-ee-"m). [Latin
"to be placed in bail"] Hist. A writ commanding that a
prisoner be bailed in a bailable matter.
pone per vadium (poh-nee par vay-dee-"m). [Latin] Hist.
A writ commanding the sheriff to summon a defendant
who has failed to appear in response to an initial writ by
attaching some ofthe defendant's property and requir
ing the defendant to find sureties . It was so called
from the words of the writ, pone per vadium et salvos
plegios ("put by gage and safe pledges").
ponit loco suo (poh-nit loh-ko s[y]oo-oh). [LatinJ Puts in
his place . This phrase was formerly used in a power
of attorney. Abbr. po. 10. suo.
ponit se super patriam (poh-nit see s[yjoo-pdr pay
tree-am or pa-tree-"m). [Latin "he puts himself upon
the country"] Hist. A defendant's plea of not guilty in
a criminal action. -Abbr. po. se. See GOING TO THE
COUNTRY; PATRIA (3).
pontifex (pon-ti-feks), n. Roman law. A member of the
college ofpontiffs, one ofseveral groups of priests, who had control ofreligion in Rome. Also termed pontiff.
PI. pontifices (pon-tif-i-seez).
pontiff. 1. Roman law, A member of the council of priests
in ancient Rome. -Also termed pontifex.
"The specialists who interpreted the Twelve Tables and
the unwritten part of the law were called pontiffs. At first
they dealt with both sacred law (how to appease the gods)
and secular law (how to secure peace among men). Some
of them later confined themselves to secular law. As an
example of how they interpreted the law, the Twelve Tables
said that if a father sells his son three times (into bondage,
to payoff debts) the son is to be free from his father's
power. The Twelve Tables said nothing about a daughter.
The pontiffs held that if a father sold his daughter once,
she was free." Tony Honore, About Law 13 (1995).
2. The leader of the Catholic Church; the Pope. See
PONTIFEX.
pony homestead. See constitutional homestead under
HOMESTEAD.
Ponzi scheme (pon-zee). (1920) A fraudulent investment
scheme in which money contributed by later investors
generates artificially high dividends or returns for the
original investors, whose example attracts even larger
investments . Money from the new investors is used
directly to repay or pay interest to earlier investors, usu,
without any operation or revenue-producing activity
other than the continual raising of new funds. This
scheme takes its name from Charles Ponzi, who in the
late 19208 was convicted for fraudulent schemes he
conducted in Boston. See GIFTING CLUB. Cf. PYRAMID
SCHEME. [Cases: Antitrust and Trade Regulation
231.]
pool, n. (1868) 1. An association ofindividuals or entities
who share resources and funds to promote their joint
undertaking; esp., an association ofpersons engaged in
buying or selling commodities . Ifsuch an association
is formed to eliminate competition throughout a single
industry, it is a restraint of trade that violates federal
antitrust laws. [Cases: Antitrust and Trade Regulation
2. A gambling scheme in which numerous
persons contribute stakes for betting on a particular
event (such as a sporting event). [Cases: Gaming
5,73.]
pool clerk. See CLERK (5),
pooled-income fund. A trust created and maintained by
a public charity rather than a private person, whereby
(1) the donor creates an irrevocable, vested remainder
in the charitable organization that maintains the trust,
(2) the property transferred by each donor is com
mingled with property transferred by other donors,
(3) the fund cannot invest in tax-exempt securities, (4)
no donor or income beneficiary can be a trustee, (5)
the donor retains (either personally or for one or more
named income beneficiaries) a life income interest, and
(6) each income beneficiary is entitled to and receives
a proportional share of the annual income based on
the rate of return earned by the fund. IRC (26 USCA)
642(c)(5). Charities (>::c6; Trusts (~280.1
pooled trust. See TRUST,
1279
pooling, n. Oil & gas. Ihe bringing together of small
tracts ofland or fractional mineral interests over a pro
ducing reservoir for the purpose of drilling an oil or gas
well. Pooling is usu. associated with collecting a large
enough tract to meet well-spacing regulations. -Also
termed communitization. Cf. UNITIZATION. [Cases;
Mines and Minerals (>79.1(5), 92.78.]
compulsory pooling. Pooling done by order of a regula
tory agency. Also termed forced pooling.
forced pooling. See compulsory pooling.
voluntary pooling. Pooling arranged by agreement of
the owners of mineral interests.
pooling agreement. A contractual arrangement by
which corporate shareholders agree that their shares
will be voted as a unit. Also termed voting agree
ment; shareholder voting agreement; shareholder-con
trol agreement. [Cases: Corporations (;:::::' 198.1 (1).]
pooling clause. Oil & gas. A provision found in most oil
and-gas leases granting the lessee the right to combine
part or all of the leased acreage with other proper
ties for development or operation. (Cases: Mines and
Minerals (;:::::'78.1(7).]
pooling of interests. A method of accounting used in
mergers, whereby the acquired company's assets are
recorded on the acquiring company's books at their
cost when originally acquired . No goodwill account
is created under the pooling method.
Poor Law. Hist. The British law that provided relief to
paupers, originally on the parish level and supported
by property taxes . lhe Poor Law was supplanted in
1948 by the National Assistance Act.
poor man's court. See RUSTICUM FORUM.
poor relief. See WELFARE (2).
pop, n. Telecommunications. A calculation of the poten
tial customer base for a mobile-phone-service provider,
calculated by the number of people living in the area
multiplied by the company's percentage ownership of
the area's cellular service.
Poppean law. See LEX PAPIA POPPEA.
popular action. See QUI TAM ACTION.
popular election. See ELECTION (3).
popularis (pop-y<1-lair-is), adj. [Latin] Roman law. (Of
an action) available to any male member of the public.
See actio popularis under ACTIO.
popular justice. See JUSTICE (1).
popular sovereignty. See SOVEREIGNTY (1).
popular use. See USE (1).
populus (pop-y<1-I<1s), n. & adj. [Latin1 Roman law. The
people; the whole body of Roman citizens, patricians,
and plebeians.
porcupine provision. A clause in a corporation's charter
or bylaws deSigned to prevent a takeover without the
consent of the board of directors. Cf. SH |
charter
or bylaws deSigned to prevent a takeover without the
consent of the board of directors. Cf. SHARK REPEL
LENT; POISON PILL port authority
pork-barrellegislation. See LEGISLATION.
pornography, n. (1842) Material (such as writings,
photographs, or movies) depicting sexual activity or
erotic behavior in a way that is designed to arouse
sexual excitement. Pornography is protected speech
under the First Amendment unless it is determined to
be legally obscene. See OBSCENITY. [Cases: Obscenity
05.] -pornographic, adj.
child pornography. (1967) Material depicting a person
under the age of18 engaged in sexual activity . Child
pornography is not protected by the First Amend
ment -even if it falls short of the legal standard for
obscenity -and those directly involved in its distri
bution can be criminally punished. [Cases: Obscen
ity C=-:'5.]
virtual child pornography. Material that includes a
computer-generated image that appears to be a minor
engaged in sexual activity but that in reality does not
involve a person under the age of 18. [Cases: Obscen
ity(;:::::'5.]
port. 1. A harbor where ships load and unload cargo.
[Cases: Navigable Waters C=-:"14.j 2. Any place where
persons and cargo are allowed to enter a country and
where customs officials are stationed. -Also termed
(in sense 2) port ofentry.
foreign port. 1. One exclusively within the jurisdic
tion ofanother country or state. 2. A port other than
a home port.
free port. A port located outside a country's customs
frontier, so that goods may be delivered usu. free of
import duties or taxes, without being subjected to
customs-control procedures; FREE-TRADE ZONE.
homeport. The port that is either where a vessel is reg
istered or where its owner resides.
port of call. A port at which a ship stops during a
voyage.
port ofdelivery. The port that is the terminus of any
particular voyage and where the ship unloads its
cargo.
port ofdeparture. The port from which a vessel departs
on the start ofa voyage.
port ofdestination. The port at which a voyage is to
end. This term generally includes any stopping
places at which the ship receives or unloads cargo.
port ofdischarge. The place where a substantial part of
the cargo is discharged.
portable business. (1983) A portfolio oflegal business
that an attorney can take from one firm or geographic
location to another, with little loss in client relation
ships. Also termed portable practice.
port authority. (1870) A state or federal agency that
regulates traffic through a port or that establishes and
maintains airports, bridges, tollways, and public trans
portation. [Cases: Navigable Waters C=>14(2); Shipping
(;:::::'15.]
portfolio 1280
portfolio. (1848) 1. The various securities or other
investments held by an investor at any given time .
An investor will often hold several different types of
investments in a portfolio for the purpose of diversi
fying risk.
market portfolio. A value-weighted portfolio of every
asset in a particular market.
2. The role within the government of a high official
<minister without portfolio>.
portfolio income. See INCOME.
portfolio-pumping. Securities. The practice of pur
chasing additional shares of a stock near the end of a
fiscal period in an attempt to improve an investment
fund's apparent performance. Also termed window
dressing.
portio legitima (por-shee-oh la-jit-i-ma). [Latin "lawful
portion"] Roman & civil law. The portion of an estate
required by law to be left to close relatives; specif., the
portion of an inheritance that a given heir is entitled
to, and of which the heir cannot be deprived by the
testator without special cause. Cf. LEGITlME. PI. por
tiones legitimae.
portion. A share or allotted part (as ofan estate).
portioner (por-sha-nar), n. I. Scots law. One who owns
a portion of a decedent's estate.
heir portioner. 1. One oftwo or more female heirs who,
in the absence ofmale heirs, inherit equal shares of an
estate. 2. One of two or more usu. female heirs in the
same degree who take equal shares per capita.
2. The proprietor ofa small fee. 3. His!. A minister who
serves a benefice with others . The person was called a
portioner because he had only a portion of the tithes or
allowance that a vicar commonly has out of a rectory
or impropriation.
portionibus haereditariis (por-shee-oh-na-bas ha-red-i
tair-ee-is). [Law Latin] Hist. In hereditary portions.
port ofcall. See PORT.
port ofdelivery. See PORT.
port ofdeparture. See PORT.
port ofdestination. See PORT.
port ofdischarge. See PORT.
port of entry. See PORT (2).
portorium (por-tohr-ee-am). [Law Latin] Hist. 1. A tax
or toll levied at a port or at the gates of a city. 2. A toll
for passing over a bridge.
port-risk insurance. See INSURANCE.
portsale. Hist. A pUblic sale of goods to the highest
bidder; an auction.
port-state control. Maritime law. The exercise of author
ity under international conventions for a state to stop,
board, inspect, and when necessary detain vessels
sailing under foreign flags while they are navigating
in the port state's territorial waters or are in one of
its ports . The purpose is to ensure the safety of the vessels as well as to enforce environmental regulations.
Cf. COASTAL-STATE CONTROL; FLAG-STATE CONTROL.
port toll. A duty paid for bringing goods into a port.
portwarden. An official responsible for the administra
tion of a port.
po. se. abbr. PONIT SE SUPER PATRIAM.
posit, vb. 1. To presume true or to offer as true. 2. To
present as an explanation.
position. The extent of a person's investment in a par
ticular security or market.
positional-risk doctrine. The principle by which the
workers'-compensation requirement that the injury
arise out of employment is satisfied if the injured
worker's employment required the worker to be at
the place where the injury occurred at the time it
occurred. Also termed positional risk analysis; posi
tional risk tcst. [Cases: Workers' Compensation (:::::
607.]
position of the United States. (1981) The legal position
of the federal government in a lawsuit, esp. in a case
involving the Equal Access to Justice Act. Under the
EAJA, the reasonableness of the position in light of
precedent determines whether the government will be
liable for the opposing party's attorney's fees. [Cases:
United States Cr'-::> 147(10).]
positive act. 1. OVERT ACT. 2. ACT (2).
positive condition. See CONDITION (2).
positive covenant. See COVENANT (1).
positive duty. See DUTY (1).
positive easement. See affirmative easement under
EASEMENT.
positive evidence. See direct evidence (1) under
EVIDENCE.
positive externality. See EXTERNALITY.
positive fraud. See actual fraud under FRAUD.
positive justice. See JUSTICE (1).
positive law. (14c) A system of law promulgated and
implemented within a particular political community
by political superiors, as distinct from moral law or
law existing in an ideal community or in some non
political community . Positive law typically consists
of enacted law -the codes, statutes, and regulations
that are applied and enforced in the courts. The term
derives from the medieval use ofpositum (Latin "estab
lished "), so that the phrase positive law literally means
law established by human authority. -Also termed jus
positivum; made law. Cf. NATURAL LAW.
"A judge is tethered to the positive law but should not be
shackled to it." Patrick Devlin, The Enforcement of Morals
94 (1968).
positive misprision. See MISPRISION.
positive notice. See direct notice under NOTICE.
positive prescription. See PRESCRIPTION (5).
positive proof. See PROOF.
1281 possession
positive reprisal. See REPRISAL.
positive right. See RIGHT.
positive servitude. See SERVITUDE (2).
positive testimony. See affirmative testimony under TES
TIMONY.
positive wrong. See WRONG.
positivi juris (pOZ-~-tI-vI joor-is). [Law Latin] Ofpositive
law. See POSITIVE LAW.
positivism. (1846) The doctrine that all true knowl
edge is derived from observable phenomena, rather
than speculation or reasoning. See LEGAL POSITIVISM;
LOGICAL POSITIVISM; positivist jurisprudence under
JURISPRUDENCE.
positivistic, adj. Of or relating to legal positivism. See
LEGAL POSITIVISM.
positivistic jurisprudence. See positivist jurisprudence
under JURISPRUDENCE.
positivist jurisprudence. See JURISPRUDENCE.
posse (pos-ee). [Latin] (16c) 1. A possibility. See IN POSSE.
Cf. IN ESSE. 2. Power; ability. 3. POSSE COMITATUS.
posse comitatus (pos-ee kom-<l-tay-t<ls), n. [Latin "power
ofthe county"] (16c) A group ofcitizens who are called
together to help the sheriff keep the peace or conduct
rescue operations. -Often shortened to posse. [Cases:
Armed Services Sheriffs and Constables C::J
27.)
Posse Comitatus Act. A federal law that, with a few
exceptions, prohibits the Army or Air Force from
directly participating in civilian law-enforcement oper
ations, as by making arrests, conducting searches, or
seizing evidence . The Act was originally enacted in
1878. It does not usu. apply to members of the Navy,
the National Guard, or the Coast Guard. 18 USCA
1385. Abbr. PCA. [Cases: Armed Services
3(2).]
possess, vb. (14c) To have in one's actual control; to have
possession of.
possessio (p<l-zes[h]-ee-oh), n. [Latin] The de facto
control ofa thing that the holder intends to control.
pedis possessio (pee-dis or ped-is p<l-zes[h]-ee-oh).
[Latin] A foothold; an actual possession of real
property, implying either actual occupancy or enclo
sure or use. See PEDIS POSSESSIO DOCTRINE. Also
termed substantial possession; possessio pedis.
possessio bona fide (p<l-zes[h]-ee-oh boh-n~ fI-dee).
[Latin] Possession in good faith. Cf. possessio mala
fide.
possessio bonorum (p~-zes[h]-ee-oh b~-nor-<lm).
[Latin] Roman law. Possession ofgoods.
possessio civilis (p~-zes[hJ-ee-oh s<l-vI-lis). [Latin]
Roman law. Legal possession; that is, possession
accompanied by an intent to hold it as one's own.
Also termed possession in law. See possessory inter
dict under INTERDICT (1); USUCAPIO; possession in law
under POSSESSION. Cf. possessio naturalis. possessio corporis. See corporeal possession under pos
SESSION.
possessio fietitia. See constructive possession under
POSSESSION.
possessio fratris (p<l-zes[hJ-ee-oh fray-tris or fra-tris).
[Latin] Hist. 'Ihe possession or seisin ofa brother; that
is, a possession of an estate by a brother that would
entitle his full sister to succeed him as heir, to the
exclusion ofa half-brother.
possessio juris. See incorporeal possession under pos
SESSION.
possessio mala fide (p~-zes[h]-ee-oh mal-<l fI-dee).
[Latin] Possession in bad faith, as by a thief. Cf. pos
sessio bona fide.
possessio naturalis (p~-zes[h]-ee-oh nach-<l-ray-Iis).
[Latin "natural possession"] Roman law. lhe simple
holding of a thing, often under a contract, with no
intent ofkeeping it permanently . This type of pos
session exists when the possessor's holding of the
object is limited by a recognition ofanother person's
outstanding right. The holder may be a usufructu
ary, a bailee, or a servant. -Also termed naturalis
possessio; nuda detentio; detentio; possession in fact.
See natural possession under POSSESSION. Cf. posses
sio civilis.
possessio pedis. See pedis possessio.
possession. (14c) 1. The fact of haVing or holding
property in one's power; the exercise of dominion
over property. [Cases: Property C;=, 10.] 2. The right
under which one may exercise control over something
to the exclusion of all others; the continuing exercise of
a claim to the exclusive use ofa material object. 3. Civil
law. The detention or use ofa physical thing with the
intent to hold it as one's own. La. Civ. Code art. 3421(1).
4. (usu. pl.) Something that a person owns or controls;
PROPERTY (2). Cf. OWNERSHIP; TITLE (1). 5. A territorial
dominion of a state or nation.
"[Als the name of Possession is ... one of the most impor
tant in our books, so it is one of the most ambiguous.
|
the name of Possession is ... one of the most impor
tant in our books, so it is one of the most ambiguous.
Its legal senses (for they are several) overlap the popular
sense, and even the popular sense includes the assumption
of matters of fact wh ich are not always easy to verify. In
common speech a man is said to possess or to be in pos
session of anything of which he has the apparent control,
or from the use of which he has the apparent power of
excluding others .... IAlny of the usual outward marks of
ownership may suffice, in the absence of manifest power in
some one else, to denote as having possession the person
to whom they attach. Law takes this popular conception as
a provisional groundwork, and builds up on it the notion of
possession in a technical sense, as a definite legal relation
to something capable of having an owner, which relation is
distinct and separable both from real and from apparent
ownership, though often concurrent with one or both of
them." Frederick Pollock & Robert Samuel Wright, An Essay
on PosseSSion in the Common Law 1~2 (1888).
"In the whole range of legal theory there is no concep
tion more difficult than that of possession. The Roman
lawyers brought their usual acumen to the analysis of it,
and since their day the problem has formed the subject of
a voluminous literature, while it still continues to tax the
ingenuity ofjurists. Nor is the question one of mere curios
ity or scientific interest, for its practical importance is not
1282 possession
less than its difficulty. The legal consequences which flow
from the acquisition and loss of possession are many and
serious, Possession, for example, is evidence of ownership;
the possessor of a thing is presumed to be the owner of
it, and may put all other claimants to proof of their title."
John Salmond, jurisprudence 285 (Glanville L Williams ed.,
10th ed. 1947).
actual possession. (16c) Physical occupancy or control
over property. Cf. constructive possession. [Cases:
Property (;:::> 1O.J
adverse possession. See ADVERSE POSSESSION.
bona fide possession. (1815) Possession of property by
a person who in good faith does not know that the
property's ownership is disputed. [Cases: Vendor and
Purchaser (;:::>220.)
civil possession. 1. Civil law. Possession existing by
virtue of a person's intent to own property even
though the person no longer occupies or has physical
control of it. 2. Louisiana law. The continuation of
possession through the possessor's presumed intent
to continue holding the thing as his or her own, after
the possessor' ceases to the thing corporeally.
La. Civ. Code arts. -Civil possession may
be evidenced by such things as paying taxes on the
property or granting rights of interest in it. [Cases:
Property (;:::> 1O.J
constructive possession. (18c) 1. Control or dominion
over a property without actual possession or custody
of it. -Also termed effective possession. [Cases:
Property (;='10.] 2. Civil law. Possession by operation
oflaw of an entirety by virtue of corporeal possession
ofa part . When a possessor holds title to a property
and physically possesses part of it, the law will deem
the possessor to hold constructive possession of the
rest of the property described in the title. La. Civ.
Code art. 3426. Also termed possessio fictitia; pos
session in law. Cf. actual possession.
corporeal possession. Possession ofa material object,
such as a farm or a coin. Also termed natural pos
session; possessio corporis; (Ger.) Sachenbesitz. [Cases:
Property
criminal possession. (1811) The unlawful possession
of certain prohibited articles, such as illegal drugs
or drug paraphernalia, firearms, or stolen property.
[Cases: Controlled Substances Receiving
Stolen Goods Weapons
derivative possession. (1851) Lawful possession by one
(such as a tenant) who does not hold title.
direct possession. See immediate possession.
double possession. The doctrine that, in a bailment,
both the bailor and the bailee have possession of the
item that has been bailed . This doctrine does not
apply in most Anglo-American jurisdictions.
"It has been suggested that the essence of bailment is that
the bailee secures possession and therefore that the bailor
loses possession. This elementary proposition is some'
times obscured by the fact that some dicta treat the pos
session of the bailee as the possession of the bailor. The
theoretical justification for this is the doctrine of 'double
possession' - a principal may have possession through the possession of an agent, This view is in accord with some
foreign systems, but it does not suit the basic principles
of English law which treats possession as exclusive," GW.
Paton, Bailment in the Common Law 6 (1952).
effective possession. See constructive possession.
exclusive possession. (l8c) The exercise of exclusive
dominion over property, including the use and benefit
ofthe property.
hostile possession. (1812) Possession asserted against
the claims of all others, esp. the record owner. See
ADVERSE POSSESSION. [Cases: Adverse Possession C~
58-85.]
immediate possession. (I7c) Possession that is acquired
or retained directly or personally. -Also termed
direct possession.
immemorial possession. Possession that began so long
ago that no one still living witnessed its beginning.
incorporeal possession. (1964) Possession ofsomething
other than a material object, such as an easement
over a neighbor's land, or the access of light to the
windows of a house. Also termed possessio juris;
quasi-possession.
"It is a question much debated whether incorporeal posses
sion is in reality true possession at all. Some are of opinion
that all genuine possession is corporeal, and that the other
is related to it by way of analogy merely, They maintain
that there is no single generic conception which includes
possessio corporiS and possessio juris as its two specific
forms. The Roman lawyers speak with hesitation and even
inconsistency on the point. They sometimes include both
forms under the title of posseSSiO, while at other times
they are careful to qualify incorporeal possession as quasi
possessio -something which is not true possession, but is
analogous to it. The question is one of no little difficulty,
but the opinion here accepted is that the two forms do in
truth belong to a single genus. The true idea of possession
is wider than that of corporeal possession, just as the true
idea of ownership is wider than that of corporeal owner
ship." John Salmond, jurisprudence 288-89 (Glanville l.
Williams ed., 10th ed. 1947).
indirect possession. See mediate possession.
insular possession. An island territory of the United
States, such as Guam. [Cases: Territories
joint possession. Possession shared by two or more
persons.
mediate possession (mee-dee-it). Possession of a thing
through someone else, such as an agent. _ In every
instance of mediate possession, there is a direct pos
sessor (such as an agent) as well as a mediate possessor
(the principal). -Also termed indirect possession.
"If I go myself to purchase a book, I acquire direct posses
sion of it: but if I send my servant to buy it for me, I acquire
mediate possession of it through him, until he has brought
it to me, when my possession becomes immediate." John
Salmond,jurisprudence 300 (Glanville L. Williams ed., 10th
ed.1947),
naked possession. (16c) The mere possession ofsome
thing, esp. real estate, without any apparent right or
colorable title to it. [Cases: Estates in Property (;::::-1;
Property 10.]
1283
natural possession. Civil law. The exercise of physical
detention or control over a thing, as by occupying a
building or cultivating farmland . Natural posses
sion may be had without title, and may give rise to
a claim of unlawful possession or a claim of owner
ship by acquisitive prescription. The term "natural
possession" has been replaced by the term "corporeal
possession" in the Louisiana Civil Code, by virtue
ofa 1982 revision. La. Civ. Code Ann. art. 3425. See
corporeal possession; PRESCRIPTION (2). Cf. possessio
naturalis under POSSESSIO. [Cases: Adverse Posses
sion (;:.7> 14; Property (;::::> 1O.J
notorious possession. (l8c) Possession or control that is
evident to others; possession of property that, because
it is generally known by people in the area where the
property is located, gives rise to a presumption that
the actual owner has notice of it. Notorious pos
session is one element ofadverse possession. -Also
termed open possession; open and notorious posses
sion. See ADVERSE POSSESSION. [Cases: Adverse Pos
session ~-::::28-33.1
open and notorious possession. See notorious posses
sion.
open possession. See notorious possession.
peaceable possession. (16c) Possession (as of real
property) not disturbed by another's hostile or legal
attempts to recover possession; esp., wrongful pos
session that the rightful possessor has appeared to
tolerate. Cf. scrambling possession (1); ADVERSE pos
SESSIOK.
pedal possession. (1839) Actual possession, as by living
on the land or by improving it. This term usu.
appears in adverse-possession contexts.
possession animo domini. Civil law. Possession with
the intent to own a thing, movable or immovable;
possession as an owner. See La. Civ. Code art. 3427.
possession by relation oflaw. A person's legally rec
ognized possession ofland despite the person's not
having actual possession after being improperly or
unlawfully dispossessed by another.
possession in fact. (17c) Actual possession that may
or may not be recognized by law . For example, an
employee's possession ofan employer's property is for
some purposes not legally considered possession, the
term detention or custody being used instead. Also
termed possessiO naturalis.
possession in law. (16c) 1. Possession that is recognized
by the law either because it is a specific type ofposses
sion in fact or because the law for some special reason
attributes the advantages and results ofpossession to
someone who does not in fact possess. 2. See construc
tive possession. -Also termed possessio civilis.
"There is no conception which will include all that amounts
to possession in law, and will include nothing else, and
it is impossible to frame any definition from which the
concrete law of possession can be logically deduced." John
Salmond, jurisprudence 287 (Glanville L. Williams ed., 10th
ed.1947). possessory claim
possession ofa right. (17c) The continuing exercise and
enjoyment ofa right. This type ofpossession is often
unrelated to an ownership interest in property. For
example, a criminal defendant possesses the right to
demand a trial by jury. Also termed possessio juris;
(Ger.) Rechtsbesitz.
precarious possession. Civil law. Detention ofproperty
by someone other than the owner or possessor on
behalf of or with permission of the owner or pos
sessor. A lessee has precarious possession of the
leased property.
"[Article 3437 of the LouiSiana Civil Code defines precari
ous possession as) 'exercise of possession over a thing with
the permission of or on behalf of the owner or possessor.'
The definition indicates the difference between possession
in the proper sense of the word and precarious posses
sion, that is, detention. A possessor is one who possesses
as owner, whereas a precarious possessor or detainer is
one who exercises factual authority over a thing with the
permission of or on behalf of another person." A.N. Yian
nopoulos, Civil Law Pl"Operty 319, at 629 (4th ed. 2001).
quasi-possession. See incorporeal possession.
scrambling possession. (1823) 1. A wrongful posses
sion that the rightful possessor has not appeared to
tolerate. Cf. peaceable possession. 2. Possession that
is uncertain because it is in dispute. With scram
bling possession, the dispute is over who actually has
posseSSion -not over whether a party's posseSSion
is lawful.
substantial possession. See pedis possessio under pos-
SESSIO.
possession unity. See unity ofposseSSion under UNITY.
possessio pedis. See pedis possessio under POSSESSIO.
possessor. (15c) One who has possession of real or
personal property; esp., a person who is in occupancy
ofland with the intent to control it or has been but no
longer is in that position, but no one else has gained
occupancy or has a right to gain it. -possessorial
(pos-<l-sor-ee-<ll), adj.
legal possessor. (17c) One with the legal right to possess
property, such as a buyer under a conditional sales
contract, as contrasted with the legal owner who
holds legal title. See legal owner under OWNER.
possessor bonafide (boh-n<l fI-dee). A possessor who
believes that no other person has a better right to the
possession.
possessor mala fide (mal-a fI-dee). A possessor who
knows that someone else has a better right to the pos
session.
possessorium (pos-<l-sor-ee-<lm). See possessory action
under ACTION (4
possessory (pa-zes-<l-ree), adj. Of, relating to, or having
possession.
possessory action. See ACTION (4).
possessory claim. (1833) Title to public land held by a
claimant who has filed a declaratory statement but has
not paid for the land. [Cases: Public Lands (;::::>31.]
1284 possessory conservator
possessory conservator. See noncustodial parent under
PARENT.
possessory estate. See ESTATE (1).
possessory garageman's lien. See LIEN.
possessory interdict. See INTERDICT (1).
possessory interest. (18c) 1. The present right to control
property, including the right to exclude others, by a
person who is not necessarily the owner. [ |
1. The present right to control
property, including the right to exclude others, by a
person who is not necessarily the owner. [Cases:
Property 10.] 2. A present or future right to the
exclusive use and possession ofproperty.
''We shall use the term 'possessory interest' to include both
present and future interests, and to exclude such interests
as easements and profits. The reader should note that
the Restatement of Property uses the term 'possessory'
to refer only to interests that entitle the owner to present
possession. See Restatement, Property 7, 9, 153 (1936)."
Thomas F. Bergin & Paul G. Haskell, Preface to Estates in
Land and Future Interests 19-20 n.1 (2d ed. 1984).
possessory lien. See LIEN.
possessory warrant. See WARRANT (1).
possibilitas (pos-;}-bil-;}-tas). [Latin] Possibility; a pos
sibility.
possibility. (14c) 1. An event that mayor may not happen.
2. A contingent interest in real or personal property.
bare possibility. See naked possibility.
naked possibility. (18c) A mere chance or expectation
that a person will acquire future property . A con
veyance of a naked possibility is usu. void for lack of
subject matter, as in a deed conveying all rights to a
future estate not yet in existence. -Also termed bare
possibility; naked expectancy. [Cases: Assignments
C='8.]
possibility coupled with an interest. (18c) An expec
tation recognized in law as an estate or interest, as
occurs in an executory devise or in a shifting or
springing use . This type of possibility may be sold
or aSSigned. See shifting use, springing use under USE.
[Cases: Assignments C=Y 9.]
possibility on a possibility. See remote possibility.
remote possibility. (l7c) A limitation dependent on two
or more facts or events that are contingent and uncer
tain; a double possibility. -Also termed possibility
on a possibility.
possibility ofreverter. (18c) A reversionary interest that
is subject to a condition precedent; speci., a future
interest retained by a grantor after conveying a fee
simple determinable, so that the grantee's estate ter
minates automatically and reverts to the grantor ifthe
terminating event ever occurs . In this type ofinterest,
the grantor transfers an estate whose maximum poten
tial duration equals that of the grantor's own estate
and attaches a special limitation that operates in the
grantor's favor. -Often shortened to reverter. See fee
simple determinable under FEE SIMPLE. Cf. REMAINDER
(1); REVERSION.
"Most treatisewriters define the possibility of reverter as
the interest a transferor keeps when he transfers a fee
simple determinable or a fee simple conditional. See, e.9., 1 American Law of Property 4.12; Simes & Smith 281.
Although this definition is all fight as far as it goes, it fails
to provide for interests less than the fee simple that are
granted on special limitation.... Although we call the
possibility of reverter an 'estate,' the courts of an earlier
era would probably have called it a 'possibility of becoming
an estate.''' Thomas F. Bergin & Paul G. Haskell, Preface to
Estates in Land and Future Interests 58 n.5 (2d ed. 1984).
possibility on a possibility. See remote possibility under
POSSIBILITY.
possidere (pos-;}-dee-ree). [Latin fr. potis "having power"
+ sedere "to sit"] Hist. To possess (a thing), esp. as a
person with an interest protected by law (e.g., an owner
or mortgagee) rather than a mere custodian.
"A distinction was made in the civil law, and adopted by
Bracton, between possidere, (to possess,) and esse in pos
sess/one, (to be in possession.) .... Thus, a guardian,
holding in demesne though not in fee, was said to be /n
possession, though he did not possess. The same language
was applied to a bailiff, ... a domestic, ... a fermor or
lessee, ... and a tenant at will from day to day, and from
year to year." 2 Alexander M. Burrill, A Law Dictionary and
Glossary 314 (2d ed. 1867).
POSSLQ (pahs-dl-kyoo). abbr. A person ofopposite sex
sharing living quarters . Although this term (which
is used by the Census Bureau) is intended to include
only a person's roommate ofthe opposite sex to whom
the person is not married, the phrase literally includes
those who are married. This overbreadth has occasion
ally been criticized. See cUPos.
"In the 1980 census, the United States Census Bureau
recognizing a societal change with numerous persons
living together without being 'officially' married -counted
not only persons who were 'Single' and 'Married,' but also
'Persons of the Opposite Sex Sharing Living Quarters.' The
acronym is PDSSLQ--- and, of course, is pronounced possle
kew. It has been suggested that, although the sou ree was
stunningly unlikely, it was the Very Word that society has
been looking for to describe these relationships: POSSLQ.
Precise, bUSinesslike, nonjudgmental. And, in its own way,
sort of poetic. too ...." Fischer v. Dallas Federal Savings
and Loan Ass'n, 106 F.R.D. 465 (N.D. Tex, 1985).
post. [Latin] (14c) After. Cf. ANTE.
post, vb. (17c) 1. To publicize or announce by affixing a
notice in a public place <foreclosure notice was posted
at the county courthouse>. 2. To transfer (accounting
entries) from an original record to a ledger <post debits
and credits>. 3. To place in the mail <post a letter>.
[Cases: Postal Service 19.]4. To make a payment
or deposit; to put up <post bail>.
postal currency. See CURRENCY.
Postal Rate Commission. An independent federal
agency that recommends changes in postage rates,
fees, and mail classifications to the governors of the
United States Postal Service . It was created by the
Postal Reorganization Act. 39 USCA 3601-04.
Abbr. PRe. [Cases: Postal Service
post-answer default judgment. See DEFAULT
JUDGMENT.
post audit. See AUDIT.
post bail, vb. See GIVE BAIL.
1285
post causam cognitam (pohst kaw-z;}m kog-ni-t;}m).
[Latin] Hist. After investigation. Cf. CAUSA COGNITA.
post contractum debitum (pohst bn-trak-t;}m deb-i
t;}m). [Latin] Hist. After debt has been contracted.
postconviction-relief proceeding. (1964) A state or
federal procedure for a prisoner to request a court
to vacate or correct a conviction or sentence. Also
termedpostconviction-remedy proceeding; peR action;
postconviction proceeding. [Cases: Criminal Law (;:=
1400-1669.]
postdate, vb. (17c) To put a date on (an instrument,
such as a check) that is later than the actual date. Cf.
ANTEDATE; BACKDATE. [Cases: Bills and Notes (;:=)8.]
postdated check. See CHECK.
post diem (pohst dI-;}m). [Latin] After the day . A plea
of payment post diem is made after the day when the
money becomes due.
post disseisina. See DE POST DISSEISINA.
postea (poh-stee-;}), n. [Latin "afterwards] Hist. A
formal statement, endorsed on the trial record, giving
an accou nt ofthe proceedings at trial; a record ofwhat
occurred at nisi prius after the issue had been joined.
"With the verdict of the jury [in the 15th-18th centuries] ...
the proceedings at nisi prius closed, and the case was sent
back to the court at Westminster from which it issued for
judgment, after a statement of the holding of the trial and
of the verdict had been added to the record. This state
ment, from the fact that it began with the Latin word
'postea,' or 'afterwards,' was known as the 'postea' and
was in fact drafted by the party in whose favour the verdict
had gone, whence the phrase 'postea to the plaintiff' or
'the defendant,' which is found in the old reports." Geoffrey
Radcliffe & Geoffrey Cross, The English Legal System 185
(G.J. Hand & D.1-Bentley eds., 6th ed. 1977).
posted water. See WATER.
posteriores (pah-steer-ee-or-eez), n. pl. [Latin] Roman
law. Descendants in a direct line beyond the sixth
degree.
posteriority (pah-steer-ee-or-;}-tee). The condition or
state of being subsequent. This word was formerly
used to describe the relationships existing between a
tenant and the two or more lords the tenant held of;
the tenant held the older tenancy "by priority" and the
more recent one "by posteriority."
posterity, n. (14c) 1. Future generations collectively. 2.
All the descendants of a person to the furthest genera
tion.
post-expiration-sales theory. Patents. A theory of
lost-profits remedy by which compensation is sought
for sales lost after a patent expired, on the basis that
infringement gave the competitor a head start on
entering the market. -Also termed accelerated reentry
theory. [Cases: Patents (;:=318(3).]
postfacto (pohst fak-toh). [Latin] After the fact. See EX
POST FACTO.
post-factum (pohst-fak-t;}m). [Latin] An after-act; an act
done afterwards. -Also termed postfactum.
post-fine. See KING'S SILVER. postliminium
postglossators (pohst-glah-say-t;}fz), n. pl. (often cap.) A
group of mainly Italian jurisconsults who were active
during the 14th and 15th centuries writing commen
taries and treatises that related Roman law to feudal
and Germanic law, canon law, and other contempo
rary bodies oflaw . The postglossators constituted the
second wave ofRoman-law study after its revival in the
lith century, the first being that of the glossators.
Also termed commentators. See GLOSSATORS.
post hoc (pohst hok). [Latin fr. post hoc, ergo propter
hoc "after this, therefore because ofthis"] (1844) 1. adv.
After this; subsequently. 2. adj. Of or relating to the
fallacy of assuming causality from temporal sequence;
confusing sequence with consequence.
posthumous (pos-ch;}-m;}s), adj. Occurring or existing
after death; esp., (of a child) born after the father's
death.
posthumous adoption. See ADOPTION.
posthumous child. See CHILD.
posthumous work. See WORK (2).
posting. (17c) 1. Accounting. The act of transferring
an original entry to a ledger. 2. The act of mailing a
letter. 3. A method of substituted service of process
by displaying the process in a prominent place (such
as the courthouse door) when other forms of service
have failed. See SERVICE (1). [Cases: Process (;:=8t.]
4. A publication method, as by displaying municipal
ordinances in deSignated localities. [Cases: Munici
pal Corporations (;=;110.] 5. The act ofproViding legal
notice, as by affixing notices of judicial sales at or on
the courthouse door. [Cases: Judicial Sales <,,~11.] 6.
The procedure for processing a check, including one or
more ofthe following steps; (1) verifying any signature,
(2) ascertaining that sufficient funds are available, (3)
affixing a "paid" or other stamp, (4) entering a charge
or entry to a customer's account, and (5) correcting or
reversing an entry or erroneous action concerning the
check. [Cases: Banks and Banking (;:= 137.]
post-issue activity. Patents. Any acts done during a
patent's term, induding making, using, or selling a
patented invention or process, esp. without authori
zation.
postjudgment discovery. See DISCOVERY.
postliminium (pohst-I03-min-ee-;}m), n. [fro Latin post
"after" + limen "threshold"] 1. Roman & civil law. The
reentering of one's residence. 2. Roman & civil law.
The doctrine that a restoration ofa person's lost rights
or status relates back to the time of the original loss
or deprivation, esp. in regard to the restoration of the
status of a prisoner ofwar.
"[AJ person who is taken captive and comes back within the
limits of the Empire is correctly described as returning by
postliminium. By 'limen' (threshold) we mean the frontier
of a house, and the old lawyers applied the word to the
frontier of the Roman State; so that the word postliminium
conveys the idea of recrossing the frontier. If a prisoner is
recovered from a beaten foe he is deemed to have come
back by postliminium." R.W. Lee, The Elements of Roman
Law 85-86 (4th ed. 1956).
3. Int'I law. The act of invalidating all of an occupying
force's illegal acts, and the post-occupation revival of
all illegitimately modified legal relations to their former
condition, esp. the restoration of property to its rightful
owner. -Also termed postliminy; jus postliminii.
post litem motam (pohst h-t;lm moh-tdm). [Law Latin]
After suit commenced. -Depositions held after litiga
tion had begun were formerly sometimes so called.
postman (pohst-m;ln). Hist. A barrister in the Court
of Exchequer who had precedence in motions. -The |
hst-m;ln). Hist. A barrister in the Court
of Exchequer who had precedence in motions. -The
postman was so called because ofthe post he stood next
to when making motions. Cf. TUBMAN.
"The postman was an experienced member of the junior
Bar who had a place in the Court of Exchequer by the post
anciently used as a measure of length in excise cases. He
had precedence in motions over all other juniors ...." Sir
Robert Megarry, A Second Miscellany-at-Law 122 (1973).
postmarital, adj. 1. Of, relating to, or occurring after
marriage. Cf. PREMARITAL. 2. Of, relating to, or occur
ring after divorce.
postmark. An official mark put by the post office on
an item of mail to cancel the stamp and to indicate
the place and date ofsending or receipt. [Cases: Postal
Service 15.]
postmaster. A U.S. Postal Service official responsible for
a local branch of the post office. -Abbr. PM. [Cases:
Postal Service C:::>7.]
Postmaster General. The head ofthe U.S. Postal Service.
[Cases: Postal Service C=>4.]
post meridiem (pohst mJ-rid-ee-;lm). [Latin] After
noon. -Abbr. p.m.; PM.
postmortem, adj. (1824) Done or occurring after death
<a postmortem examination>.
postmortem, n. See AUTOPSY (1).
postnatus (pohst nay-tJs). [Latin] A person born after a
certain political event that affected the person's politi
cal rights; esp., a person born after the Declaration of
Independence. Cf. ANTENATUS. PI. postnati.
post note. A banknote payable at a future time rather
than on demand. See time note under NOTE (1).
postnup, n. Slang. See POSTNUPTIAL AGREEMENT.
postnuptial (pohst-n3p-shJI), adj. (1807) Made or occur
ring during marriage <a postnuptial contract>. Cf. PRE
NUPTIAL. [Cases: Husband and Wife C:--,30.]
postnuptial agreement (pohst-n3p-sh<lI). (1834) An
agreement entered into during marriage to define
each spouse's property rights in the event of death or
divorce. _ The term commonly refers to an agreement
between spouses during the marriage at a time when
separation or divorce is not imminent. When dissolu
tion is intended as the result, it is more properly called
a property settlement or marital agreement. -Often
shortened to postnup. -Also termed postnuptial settle
ment. Cf. PRENUPTIAL AGREEMENT. [Cases: Husband
and Wife 31.]
postnuptial settlement. See POSTNUPTIAL AGREE
MENT. postnuptial will. See WILL.
post-obit agreement. See BOND (3).
post-obit bond. See BOND (3).
postpone, vb. (1Sc) 1. To put off to a later time. 2. To place
lower in precedence or importance; esp., to subordinate
(a lien) to a later one. 3. Parliamentary law. To tem
porarily or permanently suppress a main motion.
postponement, n.
postpone definitely. To delay a main motion's consid
eration to a specified time or until a specified con
dition occurs, usu. by the next meeting -or to the
next meeting as unfinished business. -Also termed
postpone to a certain time; postpone to a definite time;
postpone to a time certain. See TIME CERTAIN.
postpone indefinitely. To dispose of a main motion
without taking a view on its merits while prevent
ing its further consideration during the same session.
This motion's ancient form in the English Parlia
ment was to postpone consideration until "this day
six months" (or "three months") -that is, some time
beyond the current session, sufficiently remote that
the body expected not to consider the matter again.
Also termed indefinite postponement.
postpone temporarily. See TABLE.
postpone to a certain time. See postpone definitely.
postpone to a definite time. See postpone definitely.
postpone to a time certain. See postpone definitely.
post prolem suscitatam (pohst proh-IJm SJs-J-tay-t::lm).
[Law Latin] After issue born.
postremogeniture. See BOROUGH ENGLISH.
post tan tum temporis (pohst tan-t;lm tem-pJ-ris). [Latin]
Hist. After so long a time.
post-terminal sitting. A court session held after the
normal term.
post terminum (pohst t3r-m;l-n;lm). [Law Latin] After
term, as a writ returned after the ending of a judicial
term.
posttrial discovery. See post judgment discovery under
DISCOVERY.
posttrial motion. See MOTION (1).
posttrial proceeding. See PROCEEDING.
postulate, vb. Eccles. law. To name someone to an ecclesi
astical position, subject to approval by a higher author
ity.
postulatio (pos-ch;l-Iay-shee-oh). [Latin] Hist. Eccles.
law. A petition requesting the naming or transfer of
a bishop.
postulatio actionis (pos-chd-Iay-shee-oh ak-shee-oh
nis). [Latin] Roman law. A request to a magistrate
having jurisdiction for permission to bring an action.
potentate (poh-tJn-tayt). A ruler who possesses great
power or sway; a monarch.
potentia (p;l-ten-shee-;l). [Latin] Possibility; power.
1287 pourover will
potential, adj. Capable of coming into being; possible
<things having a potential existence may be the subject
of mortgage, assignment, or sale>.
potentially responsible party. Environmental law. A
person or entity that may be required to clean up a
polluted site because the person or entity (1) owns or
operates on the site, (2) arranged for the disposal of
a hazardous substance on the site, (3) transported a
hazardous substance to the site, or (4) contributed in
any other way to contaminate the site. Abbr. PRP.
See SUPERFUND.
potential Pareto superiority. See WEALTH MAXIMIZA
TION.
potentia propinqua (pJ-ten-shee-J prJ-ping-kwJ).
[Latin] Common possibility.
potestas (pJ-les-tJs or -tas), n. [Latin "power"] Roman
law. Authority or power, such as the power of a mag
istrate to enforce the law, or the authority of an owner
over a slave.
patria potestas (pay-tree-J or pa-tree-J). [Latin
"paternal power"] The authority held by the male
head ofa family (the senior ascendant male) over his
legitimate and adopted children, as well as further
descendants in the male line, unless emancipated.
Initially, the father had extensive powers over
the family, including the power of life and death;
until Justinian's time, the father alone in his familia
had proprietary capacity but he could give a son or
slave a peculium. Over time, the broad nature of the
patria potestas gradually became more in the nature
of a responsibility to support and maintain family
members. But except in early Roman history, a wife
did not fall into her husband's power but remained in
her father's until she became sui juris by his death.
Also termed fatherly power.
"The power of the father continued ordinarily to the close
of his life, and included not only his own children, but
also the children of his sons, and those of his sons' sons,
if any such were born during his lifetime.... Originally
and for a long time the patria potestas had a terribly
despotic character. Not only was the father entitled to all
the service and all the acquisitions of his child, as much as
to those of a slave, but he had the same absolute control
over his person. He could inflict upon him any punishment
however severe .... Consider now that the patria potestas
had this character and extent down to the Christian era:
that, in general, every citizen of the republic who had a
living father was in this condition, unable to hold property,
unable to acquire any thing for himself, wholly dependent
on his father in property and person. . without help or
vindication from the law.... The reason which caused
the Romans to accept and uphold the patria potestas, to
maintain it with singular tenacity against the influence
of other systems with which they came in contact, must
have been the profound impression of family unity, the
conviction that every family was, and of right ought to be,
one body, with one will and one executive." James Hadley,
Introduction to Roman Law 119-21 (1881).
"Nature and Extent of Patria Potestas. From the most
remote ages the power ofa Roman father over his children,
including those by adoption as well as by blood, was unlim
ited. A father might, without violating any law, scourge
or imprison his son, or sell him for a slave, or put him to
death, even after that son had risen to the highest honours in the state. This jurisdiction was not merely nominal, but,
in early times, was not infrequently exercised to its full
extent, and was confirmed by the laws of the XII Tables....
By degrees the right of putting a child to death (ius vitae
et necis) fell into desuetude; and long before the close
of the republic, the execution of a son by order of his
father, although not forbidden by any positive statute, was
regarded as something strange, and, unless under extraor
dinary circumstances, monstrous. But the right continued
to exist in theory ... after the establishment of the empire.
[In the Christian empire, these extreme punishments were
forbidden and disciplinary powers were reduced to those
of reasonable chastisement. -Ed.]" William Ramsay, A
Manual of Roman Antiquities 291-92 (Rodolfo Lanciani
ed., 15th ed. 1894).
potestas gladii (pJ-tes-lJs [or -tas] glad-ee-I). [Latin
"the power of the sword"] Roman law. See JUS
GLADII.
potestas maritalis (pJ-tes-tJs [or -tas] mar-J-tay-lis).
[Latin] Hist. The marital power . In Roman law, this
was an institution, one that was decaying by the end
ofthe Republic.
potestative condition. See CONDITION (2).
pound, n. (12c) 1. A place where impounded property
is held until redeemed. 2. A place for the detention of
stray animals. [Cases: Animals C=> 103.] 3. A measure
of weight equal to 16 avoirdupois ounces or 7,000
grains. [Cases: Weights and Measures C=> 3.] 4. The
basic monetary unit of the United Kingdom, equal to
100 pence. A pound was worth 20 shillings until deci
malization in 1968. Also termed (in sense 4) pound
sterling.
poundage fee. (18c) A percentage commission awarded
to a sheriff for moneys recovered under judicial process,
such as execution or attachment. [Cases: Sheriffs and
Constables
pound-breach. Hist. The offense of breaking a pound
for the purpose of taking out something that has been
impounded.
pound ofland. (16c) An uncertain quantity ofland, usu.
thought to be about 52 acres.
pound sterling. See POUND (4).
pour acquit (poor a-kee), n. [French "for acquittance"]
French law. The formula that a creditor adds when
signing a receipt.
pour appuyer (poor a-poo-yay). [Law French] For the
support of; in the support of.
pour autrui (poor oh-troo-ee). [Law French] For others.
[Cases: Contracts C-=> 187.1
pour faire proclaimer (poor fair prJ-klay-mJr), n.
[Law French "for making a proclamation"] Hist. A
writ addressed to the mayor or bailiff of a city or town,
requiring that official to make a proclamation about
some matter, such as a nuisance.
pour out, vb. (1978) Slang. To deny (a claimant) damages
or relief in a lawsuit <the plaintiff was poured out of
court by the jury's verdict ofno liability>.
pourover trust. See TRUST.
pourover will. See WILL.
1288 pourparler
pourparler (poor-pahr-l;~r), vb. [French] To informally
discuss before actual negotiating begins. -pourpar
ler, n.
pourparty (poor-pahr-tee). [Law French] See PURPART.
pourpresture (poor-pres-char). [Law French] See PUR
PRESTURE.
pour seisir terres (poor SI-zar ter-eez). [Law French "for
seizing the lands"] Hist. A writ by which the Crown
could seize land that the wife of its deceased tenant,
who held in capite, had for her dower ifshe married
without leave.
poverty. 1. The condition ofbeing indigent; the scarcity
ofthe means ofsubsistence <war on poverty>. 2. Dearth
ofsomething desirable <a poverty ofideas>.
poverty affidavit. See AFFIDAVIT.
POW. abbr. PRISONER OF WAR.
Powell doctrine. See CORRUPT-MOTIVE DOCTRINE.
power. (13c) 1. The ability to act or not act; esp., a person's
capacity for acting in such a manner as to control
someone else's responses. 2. Dominance, control, or
influence over another; control over one's subordinates.
3. The legal right or authorization to act or not act; a
person's or organization's ability to alter, by an act of
will, the rights, duties, liabilities, or other legal relations
either of that person or ofanother.
';A power is the capacity to change a legal relationship.
In this terminology the off |
either of that person or ofanother.
';A power is the capacity to change a legal relationship.
In this terminology the offeree has, before the contract
is made, a power to create a contract by means of accep
tance.' E. Allan Farnsworth, Contracts 3.4, at 114 n.3
(3d ed. 1999).
agent's power. The ability ofan agent or apparent agent
to act on behalf ofthe principal in matters connected
with the agency or apparent agency. [Cases: Principal
and Agent (;::::-49,91-126.]
concurrent power. (1812) A political power indepen
dently exercisable by both federal and state govern
ments in the same field oflegislation.
congressional power. The authority vested in the U.S.
Senate and House of Representatives to enact laws and
take other constitutionally permitted actions. U.S.
Canst. art. L [Cases; United States
delegated power. Power normally exercised by an
authority that has temporarily conferred the power
on a lower authority. [Cases: Powers (;::::-1.]
derivative power. Power that arises only from a grant
of authority. _ Power may be derived, for example,
by an agent from a principal, or by a head of state
from constitutional or statutory provisions. [Cases;
Powers
discretionary power. A power that a person may choose
to exercise or not, based on the person's judgment.
enumerated power. (1805) A political power specifically
delegated to a governmental branch by a constitu
tion. -Also termed express power. [Cases; Consti
tutional Law (;::::-635-639.]
fatherly power. See patria potestas under POTESTAS. implied power. (1807) A political power that is not
enumerated but that nonetheless exists because it is
needed to carry out an express power. [Cases: Admin
istrative Law and Procedure (;::::-325; Powers
incident power. (17c) A power that, although not
expressly granted, must exist because it is necessary
to the accomplishment of an express purpose. -Also
termed incidental power.
inherent power. (17c) A power that necessarily derives
from an office, position, or status.
institorial power (in-st<J-tor-ee-<JI). Civil law. The
power given by a business owner to an agent to act in
the owner's behalf.
investigatory power (in-ves-ta-ga-tor-ee). (usu. pl.)
The authority conferred on a governmental agency
to inspect and compel disclosure of facts germane
to an investigation. [Cases: Administrative Law and
Procedure C::;:)346.j
judicial power. See JUDICIAL POWER.
mediate powers. See MEDIATE POWERS.
naked power. (I8c) The power to exercise rights over
something (such as a trust) without having a corre
sponding interest in that thing. Cf. power coupled
with an interest.
particular power. See special power.
plenary power (plee-n<J-ree or plen-<J-ree). (16c) Power
that is broadly construed; esp., a court's power to
dispose of any matter properly before it. [Cases;
Courts 26, 30, 207.1.]
police power. See POLlCE POWER.
power coupled with an interest. (18c) A power to do
some act, conveyed along with an interest in the
subject matter of the power. - A power coupled with
an interest is not held for the benefit of the princi
pal, and it is irrevocable due to the agent's interest in
the subject property. For this reason, some authori
ties assert that it is not a true agency power. Also
termed power given as security; proprietary power.
See irrevocable power ofattorney under POWER OF
ATTORNEY. Cf. naked power. [Cases; Powers (;::::-27.]
"[S]uppose that the principal borrows money from the
agent and by way of security authorizes the agent to sell
Blackacre if the loan is not repaid and pay himself out of
the proceeds. In such case there is no more reason why
the prinCipal should be permitted to revoke than if he had
formally conveyed or mortgaged Blackacre to the agent.
Hence it would be highly unfair to the agent to allow his
principal to revoke. The reason why such a case is not
properly governed by the considerations usually making
an agency revocable is that this is in reality not a case of
agency at all. In a normal agency case the power is con
ferred upon the agent to enable him to do something for
the principal while here it is given to him to enable him to
do something for himself. Coupled with an interest means
that the agent must have a present interest in the property
upon which the power is to operate." Harold Gill Reuschlein
& William A. Gregory, The Law ofAgency and Partnership
47, at 99 (1990).
power given as security. See power coupled with an
interest.
1289
power ofacceptance. An offeree's power to bind an
offeror to a contract by accepting the offer. [Cases:
Contracts 22(1).1
power ofrevocation (rev-<l-kay-sh<ln). (I7c) A power
that a person reserves in an instrument (such as a
trust) to revoke the legal relationship that the person
has created. [Cases: Contracts <8=>217; Powers
19; Trusts <8=>59.]
power ofsale. A power granted to sell the property that
the power relates to. _ The power's exercise is often
conditioned on the occurrence of a specific event,
such as the nonpayment of a debt. [Cases: Powers
<8=>20.]
power over oneself. See CAPACITY (2).
power over other persons. See AUTHORITY (1).
primary powers. See PRIMARY pm'lERS.
private power. A power vested in a person to be exer
cised for personal ends and not as an agent for the
state.
proprietary power. See power coupled with an interest.
public power. A power vested in a person as an agent
or instrument of the functions of the state. -Public
powers comprise the various forms of legislative,
judicial, and executive authority. [Cases: Officers and
Public Employees <8=> 103.]
quasi-judicial power. (152) An administrative agency's
power to adjudicate the rights of those who appear
before it. [Cases: Administrative Law and Procedure
<8=>108.]
quasi-legislative power. (1864) An administrative
agency's power to engage in rulemaking. 5 USCA
553. [Cases: Administrative Law and Procedure
(;:)106, 385.]
reserved power. (1831) A political power that is not enu
merated or prohibited by a constitution, but instead
is reserved by the constitution for a specified politi
cal authority, such as a state government See TENTH
AMENDMENT.
restraining power. A power to restrict the acts of
others.
resulting power. A political power derived from the
aggregate powers expressly or impliedly granted by
a constitution.
special power. (18c) 1. An agent's limited authority to
perform only specific acts or to perform under specific
restrictions. Also termed particular power. [Cases:
Powers 19.] 2. See limited power ofappointment
under POWER OF APPOIKTMENT.
spendingpower. (1923) 1he power granted to a govern
mental body to spend public funds; esp., the congres
sional power to spend money for the payment ofdebt
and provision of the common defense and general
welfare ofthe United States. U.S. Const. art. 1, 8, el.
1. [Cases: United States G---=>82.]
taxing power. (18c) The power granted to a governmen
tal body to levy a tax; esp., the congressional power power
to levy and collect taxes as a means of effectuating
Congress's delegated powers. U.S. Const. art. I, 8,
d. 1. See SIXTEENTH AMENDMENT. [Cases: Internal
Revenue<:;:-~J3001-3008; [Cases: Taxation G'='2003
2007.]
trust power. See benefiCial power.
visitatorial power.lhe power to inspect or make deci
sions about an entity's operations. -Also termed
visitorial power.
4. A document granting legal authorization. See
AUTHORITY. 5. An authority to affect an estate in land
by (1) creating some estate independently ofany estate
that the holder ofthe authority possesses, (2) imposing
a charge on the estate, or (3) revoking an existing estate.
See POWER OF APPOINTMENT; PERMIT. [Cases: Powers
"The word 'power' is normally used in the sense of an
authority given to a person to dispose of property which
is not his. The person giving the power is called the donor
and the person to whom it is given the donee." Robert E.
Megarry & P.v. Baker, A Manual ofthe Law ofReal Property
253 (4th ed. 1969).
appendant power (d-pen-d;mt). (17c) 1. A power that
gives the donee a right to appoint estates that attach to
the donee's own interest. 2. A power held by a donee
who owns the property interest in the assets subject
to the power, and whose interest can be divested bv
the exercise ofthe power. -The appendant power i's
generally viewed as adding nothing to the owner
ship and thus is not now generally recognized as a
true power. -Also termed power appendant; power
appurtenant. [Cases: Powers (;:=>23.]
avoiding power. Bankruptcy. The power of a bank
ruptcy trustee or debtor in possession to void certain
transfers made or obligations incurred by a debtor,
including fraudulent conveyances, preferences trans
ferred to creditors, unperfected security interests
in personal property, and unrecorded mortgages.
11 USCA 544-53. [Cases: Bankruptcy (;:"2703,
2704.]
beneficial power. (18c) A power that is executed for
the benefit of the power's donee, as distinguished
from a trust power, which is executed for the benefit
ofsomeone other than the power's donee (Le., a trust
beneficiary). [Cases: Powers
collateral power. A power created when the donee
has no estate in the land, but simply the authority to
appoint. [Cases: Powers (;=>25.]
general power. See POWER OF APPOINTMENT.
limited power. See POWER OF APPOINTMENT.
mandatory power. A power that the donee must
exercise and must do so only as instructed, without
discretion.
power appendant. See appendant power.
power appurtenant. See appendant power.
power collateral. See power in gross.
1290 power-delegating law
power in gross. (18c) A power held by a donee who
has an interest in the assets subject to the power but
whose interest cannot be affected by the exercise of
the power. -An example is a life tenant with a power
over the remainder. -Also termed power collateral.
[Cases: Powers (;:::::>23.]
power ofappointment. See POWER OF APPOINTMENT.
relative power. A power that relates directly to land, as
distinguished from a collateral power.
testamentary power. See POWER OF APPOINTMENT.
6. Physical strength. 7. Moral or intellectual force. 8.
A person ofinfluence <a power in the community>. 9.
One ofthe great nations ofthe world <one ofthe world's
two great powers>. See PROTECTING POWER. 10. The
military or unit of it, such as a troop ofsoldiers.
power-delegating law. See LAW OF COMPETENCE.
power given as security. See power coupled with an
interest under POWER (3).
power ofalienation. (16c) The capacity to sell, transfer,
assign, or otherwise dispose ofproperty.
power of appointment. (18c) A power created or
reserved by a person having property subject to dis
position, enabling the donee ofthe power to designate
transferees ofthe property or shares in which it will be
received; esp., a power conferred on a donee by will or
deed to select and determine one or more recipients of
the donor's estate or income. -If the power is exercis
able before the donee's death, it is exercisable wholly
in favor of the donee. If the power is testamentary, it
is exercisable wholly in favor of the donee's estate.
Often shortened to power. Also termed enabling
power. [Cases: Powers (;:::::> 19; Wills (;:::::>589.]
general power of appointment. (l8c) A power of
appointment by which the donee can appoint
that is, dispose ofthe donor's property -in favor of
anyone at all, including oneself or one's own estate;
esp., a power that authorizes the alienation of a fee
to any alienee. -Often shortened to general power.
[Cases: Powers (;:::::> 19; Wills (;:::::>589.]
limited power ofappointment. (1830) A power of
appointment that either does not allow the entire
estate to be conveyed or restricts to whom the estate
may be conveyed; esp., a power by which the donee
can appoint to only the person or class specified in the
instrument creating the power, but cannot appoint
to oneself or one's own estate. -Often shortened
to limited power. Also termed special power of
appointment. [Cases: Powers (;:::::> 19; Wills C':::>589.]
special power ofappointment. See limited power of
appointment.
testamentary power ofappointment (tes-t;,-men-t;,
ree or -tree). (1858) A power of appointment created
by a will. Often shortened to testamentary power.
[Cases: Wills (;:::::>589.]
power-of-appointment trust. See TRUST. power of attorney. (18c) 1 |
>589.]
power-of-appointment trust. See TRUST. power of attorney. (18c) 1. An instrument granting
someone authority to act as agent or attorney-in-fact
for the grantor. -An ordinary power of attorney is
revocable and automatically terminates upon the death
or incapacity of the principal. Also termed letter
ofattorney; warrant ofattorney. See ATTORNEY (1).
[Cases: Principal and Agent ,,":=51.] 2. The authority
so granted; specif., the legal ability to produce a change
in legal relations by doing whatever acts are authorized.
PI. powers ofattorney.
durable power ofattorney. (1980) A power ofattorney
that remains in effect during the grantor's incompe
tency. -Such instruments commonly allow an agent
to make healthcare decisions for a patient who has
become incompetent. [Cases: Principal and Agent
general power ofattorney. (18c) A power of attorney
that authorizes an agent to transact business for the
principaL Cf. special power ofattorney. [Cases: Prin
cipal and Agent <8='97.]
irrevocable power ofattorney (i-rev-a-k;,-b;,l). (18c) A
power ofattorney that the principal cannot revoke.
Also termed power ofattorney coupled with an interest.
See power coupled with an interest under POWER (3).
[Cases: Principal and Agent
power ofattorney coupled with an interest. See irre
vocable power ofattorney.
power ofattorneyfor healthcare. See ADVANCE DIREC
TIVE (1).
special power ofattorney. (18c) A power of attorney
that limits the agent's authority to only a specified
matter. Cf. general power ofattorney.
springing power ofattorney. A power ofattorney that
becomes effective only when needed, at some future
date or upon some future occurrence, usu. upon
the principal's incapacity. -Also termed spring
ing durable power ofattorney. See durable power of
attorney; ADVANCE DIRECTIVE.
power ofrevocation (rev-.J-kay-sh;,n). See POWER (3).
power ofsale. See POWER (3).
power-of-sale clause. (1883) A provision in a mortgage or
deed oftrust permitting the mortgagee or trustee to sell
the property without court authority if the payments
are not made. [Cases: Mortgages C':::>21.j
power-of-sale foreclosure. See FORECLOSURE.
power oftermination. (1919) A future interest retained
by a grantor after conveying a fee simple subject to a
condition subsequent, so that the grantee's estate termi
nates (upon breach ofthe condition) only ifthe grantor
exercises the right to retake it. -Also termed right of
entry; right ofreentry; right ofentry for breach ofcondi
tion; right ofentry for condition broken. See fee simple
subject to a condition subsequent under FEE SIMPLE. Cf.
POSSIBILITY OF REVERTER. [Cases: Deeds l59.]
power over oneself. See CAPACITY (2).
power over other persons. See AUTHORITY (1).
1291 practice of law
power politics. Int'llaw. An approach to foreign policy
that encourages a nation to use its economic and
military strength to enlarge its own power as an end
in itself; a system in which a country is willing to bring
its economic and (esp.) military strength to bear in an
effort to increase its own power.
power to inspect. Patents. The authority ofa third party
to review a patent application . The power may be
given by the applicant or an assignee, often to a poten
tial buyer. It must specify which application the person
is authorized to see, and it becomes part of the record
of the application. See ACCESS (4), (5). [Cases: Patents
C=>97.]
p.p. abbr. 1. PER PROCURATIONEM. 2. PROPRIA PER
SONA.
PPA. abbr. 1. See provisional application under PATENT
APPLICATION. 2. PLANT PATENT ACT.
PPI. abbr. POLICY PROOF OF INTEREST.
PPO. abbr. 1. PREFERRED-PROVIDER ORGANIZATION.
2. See permanent protective order under PROTECTIVE
ORDER.
p. pro. abbr. PER PROCURATIONEM.
p. proc. abbr. PER PROCURATIONEM.
PRo abbr. PUBLIC RELATIONS.
practicable, adj. (I6c) (Of a thing) reasonably capable of
being accomplished; feasible.
practicably irrigable acreage. Land that is susceptible
to prolonged irrigation, at reasonable cost.
practical construction. See contemporaneous construc
tion under CONSTRUCTION.
practical finality. The situation in which a court order
directs immediate delivery of physical property, sub
jecting the losing party to irreparable harm ifan imme
diate appeal were not possible . Practical finality
provides an exception to the usual rule that interlocu
tory orders are not appealable. See FINALITY DOCTRINE.
[Cases: Federal Courts (;::)572.1.]
practical interpretation. See contemporaneous construc
tion under CONSTRUCTION.
practically avoidable. See AVOIDABLE.
practice, n. (I5c) 1. The procedural methods and rules
used in a court oflaw <local practice requires that an
extra copy of each motion be filed with the clerk>. 2.
PRACTICE OF LAW <where is your practice?>. [Cases:
Patents (;::)90(5).]
practice, vb. Patents. 1. To make and use (a patented
invention) <the employer had a shop right to practice
the patent, but not to sell it>. 2. To build a physical
embodiment of an invention. See REDUCTION TO
PRACTICE.
practice act. (1881) A statute governing practice and
procedure in courts . Practice acts are usu. supple
mented with court rules such as the Federal Rules of
Civil Procedure. practice book. (1873) A volume devoted to the proce
dures in a particular court or category ofcourts, usu.
including court rules, court forms, and practice direc
tions.
practice court. 1. MOOT coeRT. 2. (cap.) BAIL COURT.
practice goodwill. See GOODWILL.
practice guide. A written explanation ofhow to proceed
in a particular area oflaw or in a particular court or
locality.
practice oflaw. (l7c) The professional work of a duly
licensed lawyer, encompassing a broad range ofservices
such as conducting cases in court, preparing papers
necessary to bring about various transactions from con
veying land to effecting corporate mergers, preparing
legal opinions on various points oflaw, drafting wills
and other estate-planning documents, and advising
clients on legal questions . The term also includes
activities that comparatively few lawyers engage in but
that require legal expertise, such as drafting legislation
and court rules. -Also termed legal practice. Cf. LAW
PRACTICE. [Cases: Attorney and Client (;::) 11.]
multidisciplinary practice o/law. See MULTIDISCI
PLINARY PRACTICE.
unauthorized practice o/law. (1928) The practice of
law by a person, typically a nonlawyer, who has not
been licensed or admitted to practice law in a given
jurisdiction. Abbr. UPL. [Cases: Attorney and
Client G--;:, Il.J
"The definitions and tests employed by courts to delineate
unauthorized practice by nonlawyers have been vague or
conclusory, while jurisdictions have differed significantly
in describing what constitutes unauthorized practice in
particular areas.
"Certain activities, such as the representation of another
person in litigation, are generally proscribed. Even in that
area, many jurisdictions recognize exceptions for such
matters as smallclaims and landlord-tenant tribunals and
certain proceedings in administrative agencies. Moreover,
many jurisdictions have authorized law students and
others not locally admitted to represent indigent persons
or others as part of clinical legal education programs.
"Controversy has surrounded many outof-court activities
such as advising on estate planning by bank trust officers,
advising on estate planning by insurance agents, stock
brokers, or benefitplan and similar consultants, filling out
or providing guidance on forms for property transactions
by real estate agents, title companies, and closingservice
companies, and selling books or individual forms contain
ing instructions on selfhelp legal services accompanied
by personal, non-lawyer assistance on filling them out
in connection with legal procedures such as obtaining
a marriage dissolution. The pOSition of bar associations
has traditionally been that nonlawyer provisions of such
services denies the person served the benefit of such legal
measures as the attorney-client privilege, the benefits of
such extraordinary duties as that of confidentiality of client
information and the protection against conflicts of interest,
and the protection of such measures as those regulating
lawyer trust accounts and requiring lawyers to supervise
non-lawyer personnel. Several jurisdictions recognize
that many such services can be provided by nonlawyers
without Significant risk of incompetent service, that actual
experience in several states with extensive nonlawyer pro
vision of traditional legal services indicates no significant
risk of harm to consumers of such services, that persons in
practicks 1292
need of legal services may be significantly aided in obtain
ing assistance at a much lower price than would be entailed
by segregating out a portion of a transaction to be handled
by a lawyer for a fee, and that many persons can ill afford,
and most persons are at least inconvenienced by, the typi
cally higher cost of lawyer services." Restatement (Third) of
the law Governing lawyers 4 cmt. c (1998).
practicks (prak-tiks). Hist. Scots law. (usu. pi.) An old
collection of notes about points of practice, decisions
ofthe Court ofSessions, statutes, and forms, compiled
by members of the court. An example is Balfour's
Practicks (1469-1579). A precursor oflaw reports, the
notes remain historical legal literature ofsome author
ity.
practitioner. (16c) A person engaged in the practice ofa
profession, esp. law or medicine.
praebentes causam mortis (pri-ben-teez kaw-z<lm mor
tis). [Latin] Hist. (Persons) occasioning the cause of
death.
praeceptio haereditatis (pri-sep-shee-oh h<l-red-i-tay
tis). [Law Latin] Scots law. A taking of the inheritance
in advance. -Also termed lucrative succession.
"Praeceptio haereditatis .... This is one of the passive
titles known in law, which, if incurred by the heir, renders
him in some measure liable for his ancestor's debts. It
was introduced to prevent an heir from receiving and
enjoying, under a gratuitous disposition inter vivos from
his ancestor, that heritable estate to which he would be
entitled to succeed on the ancestor's death, and of thus
avoiding responsibility for his ancestor's debts and other
obligations." John Trayner, Trayner's Latin Maxims 466-67
(4th ed. 1894).
praeceptores (pree-sep-tor-eez). [Law Latin "masters"]
Hist. The chief clerks of Chancery, responsible for pre
paring remedial writs.
praecipe (pree-s<l-pee or pres-<l-pee), n. [Latin
"command"] (ISc) 1. At common law, a writ ordering
a defendant to do some act or to explain why inaction
is appropriate. -Also termed writ ofpraecipe. 2. A
written motion or request seeking some court action,
esp. a trial setting or an entry of judgment. -Also
spelled precipe. -praecipe, vb.
praecipe quod reddat (pree-s<l-pee or preS-<l-pee kwod
red-at). [Latin "command that he render"] Hist. A writ
directing the defendant to return certain property .
An action for common recovery was often begun with
this writ. When the writ was brought to recover land,
it was termed ingressu. See COMMON RECOVERY.
"The praecipe quod reddat was the proper writ when
the plaintiff's action was for a specifick thing; as for the
recovery of a debt certain, or for the restoration of such
a Chattel, or for giving up such a house, or so much land,
specifying the nature and quantity of it. By this writ the
sheriff was commanded to summon the tenant or defen
dant to appear at Westminster; at such a day in term." 1
George Crompton, Rules and Cases ofPractice in the Courts
ofKing's Bench and Common Pleas xxxix (3d ed. 1787).
praecipitium (pree-s.}-pish-ee-<>m or pres-.}-), n. [Latin
"headlong fall"] Roman law. The punishment ofcasting
a criminal from the Tarpeian rock.
praecipuum (pri-sip-yoo-am), n. [Latin] Hist. The estate
portion that is not subject to rules of division; the part ofan estate that one claimant (usu. the eldest heir-por
tioner) receives to the exclusion ofall others.
praeco (pree-koh), n. [Latin] Roman law. A herald or
crier.
praedia (pree-dee-a), n. [Latin] The plural ofpraedium
(land; an estate). See PRAEDIUM.
praedia belUca (pree-dee-a bel-<l-k<l). [Latin] Property
seized in war; booty.
praedia stipendiaria (pree-dee-a str -pen -dee-air-ee-a).
[Latin] Provincial lands belonging to the res publicae;
the senatorial provinces.
praedia tributaria (pree-dee-<l trib-yoo-tair-ee-a).
[Latin] Provincial lands belonging to the emperor;
the imperial provinces.
praedial (pree-dee-<ll), adj. See PRE |
to the emperor;
the imperial provinces.
praedial (pree-dee-<ll), adj. See PREDIAL.
praedial tithe. See predial tithe under TITHE.
praedictus (pri-dik-t<ls), adj. [Law Latin] Hist. Aforesaid.
In pleading, praedictus usu. referred to a defendant,
a town, or lands, idem to a plaintiff, and praefatus to a
person other than a party. Cf. PRAEFATUS.
praedium (pree-dee-.}m), n. [Latin] Roman law. Land;
an estate. PI. praedia.
praedium dominans (pree-dee-<lm dom-;:l-nanz).
[Latin] A dominant estate; an estate benefiting from
a servitude. See SERVITUDE. Cf. dominant estate under
ESTATE (4).
praedium rusticum (pree-dee-;:lm r;)s-ti-k;)m). [Latin]
An estate used for agricultural purposes. Cf. rural
servitude under SERVITUDE (2).
praedium serviens (pree-dee-am s<lr-vee-enz). [Latin]
An estate burdened by a servitude; a servient estate.
See SERVITUDE. Cf. servient estate under ESTATE (4).
praedium urbanum (pree-dee-am ar-bay-n.}m). [Latin]
An estate used for business or for dwelling; any estate
other than apraedium rusticum. See urban servitude
(2) under SERVITUDE (2).
praedo (pree-doh), n. [Latin] Roman law. A robber. PI.
praedones.
praefatus (pri-fay-t<ls), adj. [Latin] Aforesaid. Abbr.
praefat; p. fat. Cf. PRAEDICTUS.
praefectura (pri-fek-char-<l), n. [Latin] Roman law. 1.
The office of prefect. 2. A town or territory adminis
tered by a prefect.
praefectus urbi (pri-fek-t<ls ar-bI). [Latin "prefect of the
city"] Roman law. A senator charged with keeping law
and order in the city of Rome. This duty originated
in the early Empire. The praefectus had both criminal
and civil jurisdiction; the latter was gradually taken
over from the praetor, although the praefectus's civil
jurisdiction was always cognitio. -Also termed urban
prefect; prefect ofthe city.
"Praefectus urbi. The prefect of the city was originally a
mere delegate appointed in case of the temporary absence
of the emperor, but the office became a permanency owing
to Tiberius' continued residence away from Rome in the
latter part of his reign, and under subsequent emperors
1293 praescriptis verbis
the prefect remained in office even when the emperor was
present, His duties included generally the maintenance
of order in the city, and he had under his command the
urban cohorts, in effect a police force numbering between
4,000 and 6,000 men, He early assumed criminal jurisdic
tion, and in the end became the chief criminal court not
only for Rome but for the district within 100 miles," H,F,
Jolowicz, Historical Introduction to the Study ofRoman Law
345~46 (1952),
praefectus vigilum (pri~fek-t<'ls vi-jil-<'lm). [Latin "prefect
ofthe watch "] Roman law, An officer, immediately sub
ordinate to the praefectus urbi, with police and fire
prevention duties . This officer had the authority to
punish offenses relating to the public peace. See PRAE
FECTUS URBI.
praefectus villae (pri-fek-t<'ls vil-ee). [Latin] Hist. The
mayor of a town.
praefine (pree-fm). See PRIMER FINE.
praejuramentum (pree-juur-<'l-men-tam), n. [Law Latin)
Hist. A preparatory oath.
praelegatum (pree-Id-gay-tam), n. [Latin] Roman law. A
legacy to one of several heirs whereby the legatee was
entitled to the legacy before the estate was divided .
This was similar to an advancement.
praelibatio matrimonii (pree-h-bay-shee-oh ma-tr<)
moh-nee-I). [Law Latin] His!. A foretaste of marriage.
praematura diligentia (pree-m<'l-t[y]uur-<'l [or -chuur
<'lj dil-a-jen-shee-<'l). [Law Latin] Scots law. Premature
execution of a judgment.
praemium emancipation is (pree-mee-am i-man-sa
pay-shee-oh-nis). [Latin "reward for emancipation"]
Roman law. A compensation allowed by Constantine
to a father on the emancipation ofhis child, consisting
of one-third ofthe property that came to the child from
his mother's side . Justinian replaced this with the
usufruct of half the child's separate property.
praemium pudicitiae (pree-mee-<}m pyoo-da-sish-ee-ee.
[Latin "the price of chastity"] Hist. Compensation
paid by a man who seduced a chaste woman. -Also
written premium pudicitiae. Also termed praemium
pudoris.
praemunire (pree-myoo-nI-ree), n. [Latin praemon
eri "to be forewarned"] Hist. The criminal offense of
obeying an authority other than the king . Praemu
nire stems from the efforts ofEdward I (1272-1307) to
counter papal influence in England, and takes its name
from the writ's initial words: praemunire facias ("that
you cause to be forewarned"). One type ofpraemunire
was to appeal to the pope rather than the monarch.
Another was to bring a suit in a temporal court instead
of a royal court, in part because the monarch wanted
all fines levied as punishment to go to the royal coffers,
not those ofthe church.
praenomen (pree-noh-man), n. [Latin] Roman law. The
first ofa person's three names, given to distinguish the
person from family members.
praeposita negotiis vel rebus domesticis (pri-poz-a-ta Set over domestic affairs. -The phrase usu. referred to
a wife's status.
praepositor (pri-poz-a-tar or -tor), n. [Law Latin "super
visor, reeve"] Hist. One who delegates duties (esp. of
a business's management) to another; one who places
(another) in a position over others.
praepositura (pri-poz-a-t[y]uur-a), n. [Latin "manage
ment" or "supervisory office"] Hist. 1. One to whom
management duties are delegated. 2. The area of
responsibility delegated to a person to manage, esp. a
wife's authority to manage the household.
praepositus (pree-poz-i'l-tas), n. [Latin] Hist. 1. An officer
next in authority to the alderman of a hundred. 2. A
steward or bailiffofan estate.
praepositus negotiis (pri-poz-a-tas ni-goh-shee-is).
[Latin] Hist. Put in charge ofanother's business.
praepositus negotiis societatis (pri-poz-a-tas ni-goh
shee-is sa-sI-a-tay-tis). [Latin] Hist. Put in charge of a
partnership's business.
praepositus villae (pree-poz-a-tas vil-ee). [Latin] Hist.
A constable ofa town; a petty constable.
praerogativa regis (pree-rog-a-tI-va ree-jis). [Law Latin
"of the Crown's prerogative"] Hist. A declaration made
at the time of Edward I (1272-1307) defining certain
feudal and political rights ofthe Crown, including the
right to wardship ofan idiot's lands to protect the idiot's
heirs from disinheritance or alienation. Also termed
de praerogativa regiS (dee pree-rog-a-tI-va ree-jis).
"The king's right is distinctly stated in the document known
as praerogativa Regis, which we believe to come from the
early years of Edward I. The same document seems to
be the oldest that gives us any clear information about a
wardship of lunatics. The king is to provide that the lunatic
and his family are properly maintained out of the income
of his estate, and the residue is to be handed over to him
upon his restoration to sanity, or, should he die without
having recovered his wits, is to be administered by the
ordinary for the good of his soul; but the king is to take
nothing to his own use." 1 Frederick Pollock & Frederic W.
Maitland, The History of English Law Before the Time of
Edward /481 (2d ed. 1898),
praescriptio (pri-skrip-shee-oh), n. [Latin] Roman law.
1. A preliminary portion of aformula that defines the
scope of action. 2. A defensive plea in an action to
recover land by which the defendant asserts owner
ship based on continuous possession for a prescribed
time. -Also termed (in sense 2) praescriptio longi
temporis. Pi. praescriptiones (pri-skrip-shee-oh
neez).
praescriptio fori (pri-skrip-shee-oh for-I). [Latin] Roman
law. An objection on the ground that the person object
ing is not subject to the court's jurisdiction.
praescriptis verbis (pri-skrip-tis vi'lr-bis). [Latin "in
the words before written"] 1. Roman law. An action
on a bilateral agreement under which one party
had performed and required the other to perform
in turn. 2. Roman law. The grounds given for the
existence of a contract that falls into the class later
described as innominate . Innominate contracts
ni-goh-shee-is vel ree-bds da-mes-ti-sis). [Latin] Hist. I were developed and recognized late in classical law.
praeses 1294
See innominate contract under CONTRACT. 3. Hist. (Of
a clause) restricted in scope by introductory words
esp., in a pleading, words defining the issue.
praeses (pree-seez), n. lLatin]1. Roman law. A governor
of a province. 2. The president of a college or univer
sity.
praestare (pree-stair-ee), vb. [Latin] Roman law. 1. To
perform an obligation. 2. To undertake liability.
praestatio culpae levis (pri-stay-shee-oh k~l-pee lee-vis).
[Law Latin] Hist. An obligation for the middle degree
of diligence -that is, the diligence and care required
by a person of ordinary prudence. This phrase was
a forerunner ofthe modern terms reasonable care and
reasonable person.
praesumitur pro negante (pri-zyoo-md-tdr proh ni-gan
tee). [Latin] It is presumed for the negative. This is
the rule ofthe House ofLords when the votes are equal
on amotion.
praesumptio (pri-zamp-shee-oh), n. [Latin] A presump
tion. PL praesumptiones (pri-zamp-shee-oh-neez).
praesumptio fortior (pri-zamp-shee-oh for-shee-Jr
or -or). [Latin] A strong presumption (of fact); a pre
sumption strong enough to shift the burden of proof
to the opposing party.
praesumptio hominis (pri -zamp-shee-oh hom-a-nis).
[Latin] The presumption of an individual; that is, a
natural presumption unfettered by rules.
praesumptio juris (pri-z~mp-shee-oh joor-is). [Latin]
A presumption of law; that is, one in which the law
assumes the existence of something until it is dis
proved. See presumption oflaw and rebuttable pre
sumption under PRESUMPTION.
praesumptio Muciana (pri-z;lmp-shee-oh myoo
shee-ay-n<3). [Latin] Roman law. 1he rebuttable pre
sumption that in case of doubt a thing possessed
by a married woman had been given to her by her
husband. The presumption was named after the
jurist Quintus Mucius.
praeter dotem (pree-t<3r doh-t<3m or -tern). [Latin] Hist.
Over and above the dowry.
praeteritio (pree-t<3- or pret-d-rish-ee-oh), n. [Latin]
Roman law. A testator's exclusion ofan heir by passing
the heir over. _ In Roman law, passing over sui heredes
usu. invalidated the will. See SUI HEREDES.
praeter legem. See EQUITY PRAETER LEGEM.
praetor (pree-tdr), n. [Latin] Roman law. The magistrate
responsible for identifying and framing the legal issues
in a case and for ordering a lay judge (judex) to hear
evidence and decide the case in accordance with the
formula. See FORMULA (l).
praetorfideicommissarius (pree-tar fI-dee-I-kom-d
sair-ee-as). A special praetor having jurisdiction over
cases involving trusts.
praetorian edict. See edictum praetoris under
EDICTUM. praevaricatio (pri-var-a-kay-shee-oh), n. [Latin "collu
sion with an opponent"] Roman law. An accuser's col
luding with the defense in such a way that the accused
will be acquitted. _ An accuser might do this in various
ways, as by deemphasizing the most important charges,
refraining from calling the |
_ An accuser might do this in various
ways, as by deemphasizing the most important charges,
refraining from calling the most important witnesses,
or refraining from exercising peremptory challenges
against jurors who would tend to favor the accused.
See CALUMNIA. Cf. TERGIVERSATIO.
praevaricator (pree-var-a-kay-t.u). See PREVARICA
TOR.
praevento termino (pri-ven-toh tar-ma-noh). (Law Latin
"by anticipating the term"] Scots law. An action in the
Court of Session to prevent a delay in a suspension or
an appeal. See SUSPENSION (6).
pratique (pra-teek or prat-ik). Maritime law. A license
allowing a vessel to trade in a particular country or
port after complying with quarantine requirements or
presenting a clean bill ofhealth.
praxis (prak-sis). [Greek "doing; action"] (1933) In
critical legal studies, practical action; the practice of
living the ethical life in conjunction and in coopera
tion with others.
prayer conference. See CHARGE CONFERENCE.
prayer for relief. (18c) A request addressed to the court
and appearing at the end of a pleading; esp., a request
for specific relief or damages. -Often shortened to
prayer. -Also termed demand for relief; request for
relief See AD DAMNUM CLAUSE. [Cases: Federal Civil
Procedure (::=>680; Pleading (::=>72.]
'The prayer for relief. The plaintiff prays in his bill for the
relief to which he supposes himself entitled on the case
made out in the bill. This is called the special prayer. He
then prays for general relief, usually in these words: 'And
the plaintiff (oryour orator) prays for such further or other
relief as the nature of the case may require, and as may be
agreeable to equity and good conscience.' Both prayers are
generally inserted in the bill, the special prayer first, the
general following." Edwin E. Bryant, The Law of Pleading
Under the Codes ofCivil Procedure 69 (2d ed. 1899).
general prayer. (18c) A prayer for additional unspecified
relief, traditionally using language such as, "Plaintiff
additionally prays for such other and further relief to
which she may show herself to be justly entitled."
The general prayer typically follows a special prayer.
[Cases: Federal Civil Procedure (::=>2585; Judgment
(::=>252; Pleading (::=>72.]
special prayer. (18c) A prayer for the particular relief
to which a plaintiff claims to be entitled. [Cases:
Judgment (::=>252; Pleading (::=>72.J
prayer in aid. See AID PRAYER.
prayer of process. (18c) A conclusion in a bill in equity
requesting the issuance ofa subpoena ifthe defendant
fails to answer the bill. [Cases: EquityG':::> 139.]
PRe. abbr. POSTAL RATE COMMISSION.
preamble (pree-am-bal), n. (14c) 1. An introductory
statement in a constitution, statute, or other document
explaining the document's basis and objective; esp., a
1295
statutory recital of the inconveniences for which the
statute is designed to provide a remedy . A preamble
often consists of a series of clauses introduced by the
conjunction whereas. Such a preamble is sometimes
called the whereas clauses. [Cases: Statutes C;;>21O.j
"The preamble cannot control the enacting part of the
statute, in cases where the enacting part is expressed in
clear, unambiguous terms; but in case any doubt arises
on the enacting part, the preamble may be resorted to to
explain it, and show the intention of the law maker." Den
v. Urison, 2 N.Jl. 212 (1807).
2. Patents. The first words of a patent claim, often a
single phrase indicating the field ofart. The preamble
is typically nonlimiting unless it "breathes life and
meaning into the claims." Corning Glass Works v.
Sumitomo Elec. U.S.A., Inc., 868 F.2d 1251, 1257 (Fed.
Cir. 1989). Elements, the later parts ofthe claim, narrow
this broad identification more and more specifically. Cf.
BODY OF A CLAIM; TRANSITION PHRASE. [Cases: Patents
\.~:)165(4).) -preambulary (pree-am-bY;:l-ler-ee), pre
ambular (pree-am-bY;:l-I;:lr), adj.
preappointed evidence. See EVIDENCE.
preargument-conference attorney. See CIRCUIT
MEDIATOR.
preaudience. English law. The right ofa senior barrister
to be heard in court before other barristers.
prebankruptcy, adj. Occurring before the filing of a
bankruptcy petition <prebankruptcy transactions>.
prebend (preb-;md), n. 1. A stipend granted in a cathedral
church for the support ofthe members ofthe chapter. 2.
The property from which the stipend comes.
prebendary (preb-;:ln-der-ee). A person serving on the
staff of a cathedral who receives a stipend from the
cathedral's endowment.
prebut (pree-b<lt), vb. Slang. To rebut an argument in
advance ofan opponent's making it.; to engage in antic
ipatory refutation.
precariae (pri-kair-ee-ee). [Law Latin "favors"] Hist. Day
labor that tenants ofcertain manors were bound to give
their lords at harvest time. Also termed preces.
precarious, adj. (l7c) Dependent on the will or pleasure
ofanother; uncertain.
precarious loan. See tOANo
precarious possession. See POSSESSION.
precarious right. See RIGHT.
precarious trade. See TRADE.
precarium (pri-kair-ee-;:Jm), n. [Latin]!. Roman law. The
gratuitous grant of the enjoyment of property, revo
cable at will. 2. The property so granted. 3. Rist. An
estate or tenure arising from a precarious grant, and
usu. characterized by uncertainty or arduous condi
tions of tenure.
precatory (prek-;:l-tor-ee), adj. (17c) (Of words) request
ing, recommending, or expressing a desire for action,
but usu. in a nonbinding way . An example of precaprecedent
tory language is "it is my wish and desire to ...." [Cases:
Trusts (;::::>29; Wills (;=.:)467.)
precatory trust. See TRUST.
precautionary appeal. See protective appeal under
APPEAL.
precedence (pres-;:l-d;:lnts or pr;:J-seed-;:mts), n. (16c) 1.
The order or priority in place or time observed by or for
persons ofdifferent statuses (such as political dignitar
ies) on the basis of rank during ceremonial events. 2.
Generally, the act or state ofgoing before something else
according to some system of priorities. 3. Parliamen
tary law. The ranked priority that determines whether a
motion is in order while another motion is pending, or
whether a pending motion yields to another motion.
"There is a principle that determines the precedence of
motions. The closer a motion is to final disposition of the
matter under consideration, the lower it is in the order of
precedence. The further removed the motion is from final
disposition of the matter, the higher it is in the order of
precedence." National Conference of State Legislatures,
Mason's Manual ofLegislative Procedure 6 (2000).
4. Parliamentary law. The priority in which a member
is entitled to the floor. -Also termed precedence in
recognition; preference in being recognized. 5. The order
in which persons may claim the right to administer an
intestate's estate . The traditional order is (1) surviv
ing spouse, (2) next ofkin, (3) creditors, and (4) public
administrator. [Cases: Executors and Administrators
precedent (pr;:l-seed-<lnt also pres-;:l-d;:lnt), adj. (14c) Pre
ceding in time or order <condition precedent>.
precedent (pres-;:J-d;:Jnt), n. (16c) 1. 'The making oflaw
by a court in recognizing and applying new rules
while administering justice. [Cases: Courts (':::J87.) 2.
A decided case that furnishes a basis for determining
later cases involving similar facts or issues. See STARE
DECISIS. [Cases: Courts C:::J88.J precedential, adj.
"In law a precedent is an adjudged case or decision of a
court ofjustice, considered as furnishing a rule or author
ity for the determination of an identical or similar case
afterwards arising, or of a similar question of law. The
only theory on which it is possible for one decision to be
an authority for another is that the facts are alike, or, if
the facts are different, that the prinCiple which governed
the first case is applicable to the variant facts." William
M. Ule et aI., Brief Making and the Use of Law Books 288
(3d ed. 1914).
"A precedent ... is a judicial decision which contains in
itself a principle. The underlying principle which thus
forms its authoritative element is often termed the ratio
decidendi. The concrete deCision is binding between the
parties to it, but it is the abstract ratio decidendi which
alone has the force of law as regards the world at large."
John Salmond, Jurisprudence 191 (Glanville L. Williams ed.,
10th ed. 1947).
"One may say, roughly, that a case becomes a precedent
only for such a general rule as is necessary to the actual
deCision reached, when shorn of unessential circum
stances." 1 James Parker Hall, Introduction, American Law
and Procedure xlviii (1952).
"One may often accord respect to a precedent not by
embracing it with a frozen logic but by drawing from its
thought the elements of a new pattern of decision." Lon L
Fuller, Anatomy of the Law 151 (1968).
1296 prece partium
binding precedent. (I7c) A precedent that a court must
follow . For example, a lower court is bound by an
applicable holding of a higher court in the same
jurisdiction. -Also termed authoritative precedent;
binding authority. Cf. imperative authority under
AUTHORITY (4). [Cases: CourtsC--:::>88, 107.)
declaratory precedent. (1900) A precedent that is
merely the application of an already existing legal
rule.
original precedent. (17c) A precedent that creates and
applies a new legal rule.
persuasive precedent. (1905) A precedent that is not
binding on a court, but that is entitled to respect and
careful consideration . For example, ifthe case was
decided in a neighboring jurisdiction, the court might
evaluate the earlier court's reasoning without being
bound to decide the same way. [Cases: Courts (;:::>
88.]
precedent sub silentio (s;:lb s;:l-len-shee-oh). (1825) A
legal question that was neither argued nor explicitly
discussed in a judicial decision but that seems to have
been silently ruled on and might therefore be treated
as a precedent.
superprecedent. 1. A precedent that defines the law and
its requirements so effectively that it prevents diver
gent holdings in later legal decisions on similar facts
or induces disputants to settle their claims without
litigation . This sense was posited by W. Landes and
Richard Posner in Legal Precedent: A Theoretical and
Empirical Analysis, 191. Law & Econ. 249, 251 (1976).
2. A precedent that has become so established in the
law by a long line of reaffirmations that it is very dif
ficult to overturn it; specif., a precedent that has been
reaffirmed many times and whose rationale has been
extended to cover cases in which the facts are dissimi
lar, even wholly unrelated, to those ofthe precedent.
For example, Roe v. Wade has been called a super
precedent because it has survived more than three
dozen attempts to overturn it and has been relied on
in decisions protecting gay rights and the right to die.
Cf. super stare decisis under STARE DECISIS.
3. DOCTRINE OF PRECEDENT. 4. A form of pleading or
property-conveyancing instrument. Precedents are
often compiled in book form and used by lawyers as
guides for preparing similar documents.
"Collections of Precedents have existed from very early
times. In this connection precedents must not be confused
with judicial precedents or case law. We refer here simply
to common-form instruments compiled for use in practice,
whereby the lawyer can be more or less certain that he
is using the correct phraseology for the particular case
before him. They were used both in conveyancing and liti
gation.... It is interesting to note that these precedents
were apparently among the first legal works to be pub
lished after printing was introduced. Collections of convey
ancing precedents continued to be brought up to date or
new volumes issued ...." A.K.R. Kiralfy, Potter's Outlines
ofEnglish Legal History 42-43 (5th ed. 1958).
precepartium (pree-see pahr-sbee-3m). [Law Latin) On
the prayer ofthe parties. precept (pree-sept). (14c) 1. A standard or rule ofconduct;
a command or principle <several legal precepts govern
here>. [Cases: Courts (;:::>87-100.J 2. A writ or warrant
issued by an authorized person demanding another's
action, such as a judge's order to an officer to bring a
party before the court <the sheriff executed the precept
immediately>.
preceptive statute. See STATUTE. |
party before the court <the sheriff executed the precept
immediately>.
preceptive statute. See STATUTE.
preceptum amissionis superioritatis (pri-sep-tdm
d-mis[h)-ee-oh-nis suu-peer-ee-or-d-tay-tis). [Law
Latin "a precept of a lost superiority"] Hist. A precept
to force a superior to give a vassal's disponee entry to
the land.
preces (pree-seez), n. [Latin "prayers"] Roman law. A
petition, esp. one addressed to the emperor by a private
person. Cf. RESCRIPT (3).
preces primariae (pree-seez prr-mair-ee-ee). [Latin)
Hist. The right of the sovereign to appoint a person
to fill a vacant prebendary office after the sovereign's
accession . "Ibis right was exercised during the reign
of Edward I. Also termed primae preces. See PREB
ENDARY.
precinct. A geographical unit ofgovernment, such as an
election district, a police district, or a judicial district.
[Cases: Municipal Corporations (;:::>40.)
magisterial precinct. (1894) A county subdivision that
defines the territorial jurisdiction of a magistrate,
constable, or justice ofthe peace. Also termed mag
isterial district. [Cases: Justices of the Peace "JS2.J
precipe (pre-s;:l-pee). See PRAECIPE.
precis (pray-see or pray-see), n. [French) (18c) A concise
summary of a text's essential points; an abstract. PI.
precis (pray-seez or pray-seez).
precludi non debet (pri-kloo-dI non dee-bet or deb-et).
[Latin "he ought not to be barred"] Hist. The beginning
ofa plaintiff's reply to a plea in bar in which the plaintiff
objects to being barred from maintaining the action.
Sometimes shortened to precludi non.
preclusion order. See ORDER (2).
precognition (pree-kog-nish-;:ln). Scots law. 1. A pre
liminary examination under oath of persons believed
to have knowledge about the facts of a case, esp., in a
criminal case, to determine whether there is sufficient
evidence for a trial. 2. The written record of the state
ment that a prospective witness can as evidence.
precompounded prescription drug. See DRUG.
preconceived malice. See MALICE AFORETHOUGHT.
precondition. See CONDITION (1).
precontract. See CONTRACT.
predate, vb. See ANTEDATE.
predation. See PREDATORY PRICING.
predator. See SEXUAL PREDATOR.
predatory crime. See CRIME.
predatory intent. See INTENT (1).
1297 preemptive right
predatory pricing. Unlawful below-cost pricing intended
to eliminate specific competitors and reduce overall
competition; pricing below an appropriate measure of
cost for the purpose of eliminating competitors in the
short run and reducing competition in the long run.
Also termed predation. See ANTITRUST. [Cases: Anti
trust and Trade Regulation (::;>832.]
"In its most orthodox form, 'predatory pricing' refers to a
practice of driving rivals out of business by selling at a price
below cost. The predator's intent and the only intent that
can make predatory pricing rational, profitmaximizing
behavior is to charge monopoly prices after rivals
have been dispatched or disciplined. Predatory pricing is
analyzed under the antitrust laws as illegal monopolization
or attempt to monopolize under 2 of the Sherman Act, or
sometimes as a violation of the Clayton Act 2, generally
called the Robinson- Patman Act." Herbert Hovenkamp,
Federal Antitrust Policy 335 (2d ed. 1999).
predecease, vb. To die before (another) <she predeceased
her husband>.
predecessor. 1. One who precedes another in an office
or position. 2. An ancestor.
predecisional, adj. Of, relating to, or occurring during
the time before a decision.
predial (pree-dee-dl), adj. (I5c) Of, consisting of, relating
to, or attached to land <predial servitude>. -Also
spelled praedial.
predial servitude. See servitude appurtenant under SER
VITUDE (2).
predial tithe. See TITHE.
predicate act. (1977) 1. See predicate offense under
OFFENSE (1). 2. See lesser included offense under
OFFENSE (1). 3. Under RICO, one of two or more related
acts ofracketeering necessary to establish a pattern. See
RACKETEER INFLUENCED AND CORRUPT ORGANIZA
TIONS ACT. 4. See predicate act under ACT (2). [Cases:
Racketeer Influenced and Corrupt Organizations
5,103.]
predicate fact. See FACT.
predicate offense. See lesser included offense under
OFFENSE (1).
prediction theory. 1. See BAD-MAN THEORY. 2. See PRE
DICTIVE THEORY OF LAW.
predictive theory oflaw. (1956) The view that the law
is nothing more than a set of predictions about what
the courts will decide in given circumstances. -This
theory is embodied in Holmes's famous pronounce
ment, "The prophecies of what the courts will do in
fact, and nothing more pretentious, are what I mean by
the law." Oliver Wendell Holmes, The Path ofthe Law,
10 Harv. L. Rev. 457, 460-61 (1897). Also termed
prediction theory. Cf. BAD-MAN THEORY.
predisposition. (17c) A person's inclination to engage in
a particular activity; esp., an inclination that vitiates
a criminal defendant's claim of entrapment. [Cases:
Criminal LawC=>37(4).]
predominant-aspect test. See PREDOMINANT-PURPOSE
TEST. predominant-purpose test. An assessment ofwhether
Article 2 ofthe UCC applies to an exchange, conducted
by considering whether the exchange's chief aspect,
viewed in light of all the circumstances, is the sale of
goods. -Ifgoods account for most of the exchange's
value, it is probably a sale; if services account for most
of the value, it probably is not. The leading case is Bone
brake v. Cox, 499 F.2d 951, 960 (Sth Or. 1974). -Also
termed predominant-aspect test. [Cases: Sales
preemption (pree-emp-shan), n. (lSc) 1. The right to buy
before others. See RIGHT OF PREEMPTION. [Cases: Con
tracts (;=16.5; Sales (;='24; Vendor and Purchaser C=>
18(.5).]2. The purchase of something under this right.
3. An earlier seizure or appropriation. 4. The occupa
tion of public land so as to establish a preemptive title.
[Cases: Public Lands 5. Constitutional law. The
principle (derived from the Supremacy Clause) that a
federal law can supersede or supplant any inconsis
tent state law or regulation. -Also termed (in sense
5) federal preemption. See COMPLETE-PREEMPTION
DOCTRINE. [Cases: States C;:. 18.3.] preempt, vb.
preemptive, adj.
conflict preemption. See obstacle preemption.
Garmon preemption. Labor law. A doctrine prohib
iting state and local regulation of activities that are
actually or arguably (1) protected by the National
Labor Relations Act's rules relating to the right of
employees to organize and bargain collectively, or (2)
prohibited by the National Labor Relations Act's pro
vision that governs unfair labor practices. San Diego
Bldg. Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct.
773 (1959). Also termed Garmon doctrine. See
COLLECTIVE BARGAINING; UNFAIR LABOR PRACTICE.
[Cases: Labor and Employment C-~968, 1670; States
(>18,46.]
Machinists preemption. Labor law. The doctrine pro
hibiting state regulation of an area oflabor activity
or management-union relations that Congress has
intentionally left unregulated. Lodge 76, Int'l Ass'n
ofIHachinists v. Wisconsin Employment Relations
Comm'n, 427 U.S. 132,96 S.Ct. 2548 (1976). [Cases:
Labor and Employment (,.'-=968.]
obstacle preemption. The principle that federal or
state law can supersede or supplant state or local law
that stands as an obstacle to accomplishing the full
purposes and objectives of the overriding federal or
state law. -Also termed conflict preemption. [Cases:
States C=> 185.]
preemption claimant. (lS24) One who has settled on
land subject to preemption, intending in good faith to
acquire title to it.
preemption right. (lSc) The privilege to take priority
over others in claiming land subject to preemption .
The privilege arises from the holder's actual settlement
of the land. See PREEMPTION (3).
preemptive right. A shareholder's privilege to purchase
newly issued stock -before the shares are offered
to the public -in an amount proportionate to the
1298 preexisting condition
shareholder's current holdings in order to prevent
dilution ofthe shareholder's ownership interest -This
right must be exercised within a fixed period, usu. 30 to
60 days. -Also termed subscription privilege. See SUB
SCRIPTION RIGHT. Cf. rights offering under OFFERING.
[Cases: Corporations 0158.]
preexisting condition. See CONDITION (2).
preexisting duty. See DUTY (1).
preexisting-duty rule. (1990) Contracts. The rule that if
a party does or promises to do what the party is already
legally obligated to do or refrains or promises to
refrain from doing what the party is already legally
obligated to refrain from doing the party has not
incurred detriment. -This rule's result is that the
promise does not constitute adequate consideration for
contractual purposes. For example, if a builder agrees
to construct a building for a specified price but later
threatens to walk off the job unless the owner promises
to pay an additional sum, the owner's new promise is
not enforceable because, under the preexisting-duty
rule, there is no consideration for that promise. Also
termed preexisting-Legal-duty rule. [Cases: Contracts
075.]
prefect (pree-fekt), n. 1. A high official or magistrate
put in charge of a particular command, department,
or region. 2. In New Mexico, a probate judge.
prefect of the city. See PRAEFECTUS URBI.
prefer, vb. (l4c) 1. To put forward or present for con
sideration; esp. (of a grand jury), to bring (a charge or
indictment) against a criminal suspect <the defen
dant claimed he was innocent ofthe charges preferred
against him>. 2. To give priority to, such as to one
creditor over another <the statute prefers creditors who
are first to file their claims>.
preference. 1. The act of favoring one person or thing
over another; the person or thing so favored. 2. Priority
of payment given to one or more creditors by a debtor;
a creditor's right to receive such priority. 3. Bankruptcy.
PREFERENTIAL TRANSFER.
insider preference. A transfer of property by a bank
ruptcy debtor to an insider more than 90 days before
but within one year after the filing ofthe bankruptcy
petition. [Cases: Bankruptcy 02608(2).]
liquidation preference. A preferred shareholder's right,
once the corporation is liquidated, to receive a speci
fied distribution before common shareholders receive
anything. [Cases: Corporations 0629.]
voidable preference. See PREFERENTIAL TRANSFER.
preference case. See preferred cause under CAUSE (3).
preference cause. See preferred cause under CAUSE (3).
preference in being recognized. See PRECEDENCE (4).
preference shares. See preferred stock under STOCK.
preferential assignment. See PREFERENTIAL TRANSFER.
preferential ballot. See preferential vote under VOTE
(1). preferential debt. See DEBT.
preferential nonunion shop. See SHOP.
preferential rule. (1959) Evidence. A rule that prefers
one kind of evidence to another. _ It may work pro
viSionally, as when a tribunal refuses to consider one
kind ofevidence until another kind (presumably better)
is shown to be unavailable, or it may work absolutely,
as when the tribunal refuses to consider anything but
the better kind ofevidence. [Cases: Criminal Law 0
398.]
"There are only three or four ... sets of [preferential] rules.
There is a rule preferring the production of the original ofa
document, in preference to a copy. There is a rule requiring
the attesting witness to a will to be summoned to evidence
its execution. And there is a rule preferring the magis
trate's official report of testimony taken before him. Then
there are a few miscellaneous rules, such as the offiCially
certified enrollment of a statute, etc." John H. Wigmore, A
Students' Texrbook of the Law of Evidence 219 (1935).
preferential shop. See preferential union shop under
SHOP.
preferential tariff. See TARIFF (2).
preferential transfer. Bankruptcy. A prebankruptcy
transfer made by an insolvent debtor to or for the
benefit of a creditor, thereby allowing the creditor
to receive more than its proportionate share of the
debtor's assets; specif., an insolvent |
allowing the creditor
to receive more than its proportionate share of the
debtor's assets; specif., an insolvent debtor's transfer
of a property interest for the benefit of a creditor who
is owed on an earlier debt, when the transfer occurs no
more than 90 days before the date when the bankruptcy
petition is filed or (if the creditor is an insider) within
one year of the filing, so that the creditor receives more
than it would otherwise receive through the distribu
tion of the bankruptcy estate. -Under the circum
stances described in 11 USCA 547, the bankruptcy
trustee may recover for the estate's benefit - a pref
erential transfer from the transferee. Also termed
preference; voidable preference; voidable transfer; pref
erential aSSignment. Cf. FRAUDULENT CONVEYANCE (2).
[Cases: BankruptcyG---::>260l-2623.)
preferential union shop. See SHOP.
preferential vote. See VOTE (1).
preferential voting. See VOTING.
preferred, adj. Possessing or accorded a priority or privi
lege <a preferred claim>.
preferred cause. See CAUSE (3).
preferred creditor. See CREDITOR.
preferred dividend. See DIVIDEND.
preferred docket. See DOCKET (2).
preferred-provider organization. (1984) A group of
healthcare providers (such as doctors, hospitals, and
pharmacies) that agree to provide medical services at
a discounted cost to covered persons in a given geo
graphic area. -Abbr. PPO. Cf. HEALTH-MAINTENANCE
ORGANIZATION; MANAGED-CARE ORGANIZATION.
[Cases: Health Insurance 2501.]
preferred stock. See STOCK.
1299
preferring of charges. A1ilitary law. The formal com
pletion of a charge sheet, which includes signing and
swearing to the charges and specifications. -Only a
person subject to the Uniform Code of Military Justice
can prefer charges. Cf. INITIATION OF CHARGES. [Cases:
Military Justice ~-:;;951.1
prefiled bill. See BILL (3).
Pregnancy-Discrimination Act. A federal statute that
prohibits workplace discrimination against a pregnant
woman or against a woman affected by childbirth or
a related medical condition. 42 USCA 2000. _ The
Pregnancy- Discrimination Act is part of Title VII of
the Civil Rights Act of 1964. Abbr. PDA. [Cases:
Civil Rights (;:) 1176.]
pregnant chad. See dimpled chad under CHAD.
prehearing conference. (1946) An optional conference
for the discussion of procedural and substantive matters
on appeal, usu. held in complex civil, criminal, tax, and
agency cases. -Those attending are typically the attor
neys involved in the case as well as a court represen
tative such as a judge, staff attorney, or deputy clerk.
Fed. R. App. P. 33. lCases: Appeal and Error {~808;
Criminal Law 0=>632(5); Federal Courts
"The prehearing conference, if held, generally is scheduled
after the time for appeal and cross-appeal has passed, and
as soon as it becomes apparent that the case is complex
due to the legal issues, the length of the record, or the
number of parties. In a complex or multiparty case, the
conference provides a forum in which to discuss briefing
responsibilities, timing, and handling the record and joint
appendix. There may be some discussion ofthe amount of
oral argument the parties desire and how that argument i
will be divided ... ." Michael E. Tigar, Federal Appeals: i
Jurisdiction and Practice 8.06, at 309-10 (2d ed. 1993).
prehire agreement. An employment contract between a
union and an employer, in which the employer agrees to
hire union members. See closed shop under SHOP.
prejudgment attachment. See ATTACHMENT (1).
prejudgment interest. See INTEREST (3).
prejudice, n. (14c) 1. Damage or detriment to one's legal
rights or claims. See dismissal with prejudice and dis
missal without prejudice under DISMISSAL.
legal prejudice. (18c) A condition that, if shown by a
party, will usu. defeat the opposing party's action;
esp., a condition that, ifshown by the defendant, will
defeat a plaintiff's motion to dismiss a case without
prejudice. -The defendant may show that dismissal
will deprive the defendant of a substantive property
right or preclude the defendant from raising a defense
that will be unavailable or endangered in a second
suit. [Cases: Federal Civil Procedure 0=> 1700; Pretrial
Procedure (-.. 510.]
undue prejudice. (17c) The harm resulting from a fact
trier's being exposed to evidence that is persuasive
but inadmissible (such as evidence of prior criminal
conduct) or that so arouses the emotions that calm
and logical reasoning is abandoned. preliminary statement
2. A preconceived judgment formed with little or no
factual basis; a strong bias. [Cases: Judges 0=>49.]
prejudice, vb. -prejudicial, adj.
prejudicial error. See reversible error under ERROR (2).
prejudicial publicity. (1935) Extensive media atten
tion devoted to an upcoming civil or criminal trial. _
Under the Due Process Clause, extensive coverage ofa
criminal trial may deprive the defendant ofa fair triaL
[Cases: Criminal Law C~:)633(1); Federal Civil Proce
dure 0=> 1951; Trial
preliminary, adj. Coming before and usu. leading up
to the main part of something <preliminary negotia
tions>.
preliminary amendment. See PATENT-APPLICATION
AMENDMENT.
preliminary availability search. Trademarks. A cursory
or moderate search ofregistered trademarks and com
mon-law uses of proposed-trademark names or phrases,
done to narrow the list of names phrases before con
ducting a thorough search.
preliminary complaint. See COMPLAINT.
preliminary crime. See inchoate offense under OFFENSE
(1).
preliminary evidence. See EVIDENCE.
preliminary examination. 1. See EXAMINATION (3). 2.
See PRELIMINARY HEARING.
preliminary hearing. A criminal hearing (usu. con
ducted by a magistrate) to determine whether there is
sufficient evidence to prosecute an accused person.
If sufficient evidence exists, the case will be set for trial
or bound over for grand-jury review, or an information
will be filed in the trial court. -Also termed prelimi
nary examination; probable-cause hearing; bindover
hearing; examining trial. Cf. ARRAIGNMENT. [Cases:
Criminal LawC=)222-238.]
preliminary injunction. See INJUNCTION.
preliminary inquiry. Military law. The initial investiga
tion of a reported or suspected violation of the Uniform
Code of Military Justice. Cf. PRETRIAL INVESTIGA
TION.
preliminary-inquiry officer. See OFFICER (2).
preliminary letter. See INVITATION TO NEGOTIATE.
preliminary objection. Int'llaw. In a case before an
international tribunal, an objection that, if upheld,
would render further proceedings before the tribunal
impossible or unnecessary. _ An objection to the court's
jurisdiction is an example of a preliminary objection.
preliminary proof. See PROOF.
preliminary prospectus. See PROSPECTUS.
preliminary protective hearing. See shelter hearing
under HEARING.
preliminary statement. (1834) The introductory part
ofa brief or memorandum in support of a motion, in
which the advocate summarizes the essence of what
follows. -In at least two jurisdictions, New York and
1300 preliminary warrant
New Jersey, the preliminary statement is a standard
part ofcourt papers. In many other jurisdictions, advo
cates do not routinely include it. But preliminary state
ments are typically allowed, even welcomed, though
not required. Also termed summary ofargument.
preliminary warrant. See WARRANT (1).
premarital, adj. Of, relating to, or occurring before
marriage. Cf. POSTMARITAL.
premarital agreement. See PRENUPTIAL AGREEMENT.
premarital asset. See ASSET.
prematurity. 1. The circumstance existing when the facts
underlying a plaintiff's complaint do not yet create a live
claim. Cf. RIPENESS. [Cases: Action (;::::>6,62; Federal
Courts 12.1.] 2. The affirmative defense based on
this circumstance.
premeditated, adj. (16c) Done with willful deliberation
and planning; consciously considered beforehand <a
premeditated killing>. [Cases: Homicide Sen
tencing and Punishment (;::::> 1676.]
premeditated malice. See MALICE AFORETHOUGHT.
premeditation, n. (l5c) Conscious consideration and
planning that precedes some act (such as committing a
crime). [Cases: Homicide (;:::535; Sentencing and Pun
ishment (;::::> 1676.] premeditate, vb.
premier serjeant. See SERJEANT-AT-LAW.
premise (prem-is), n. (l4c) A previous statement or con
tention from which a conclusion is deduced. Also
spelled (in BrE) premiss. -premise (prem-is or pri
mlZ), vb.
premises (prem-<l-siz). (lSc) 1. Matters (usu. prelimi
nary facts or statements) previously referred to in the
same instrument <wherefore, premises considered, the
plaintiff prays for the following relief>. 2. The part of
a deed that describes the land being conveyed, as well
as naming the parties and identifying relevant facts
or explaining the reasons for the deed. 3. A house
or building, along with its grounds <smoking is not
allowed on these premises>.
"Premises (~ a house or building) has a curious history in
legal usage. Originally. in the sense of things mentioned
previously. it denoted the part of a deed that sets forth the
names of the grantor and grantee, as well as the things
granted and the consideration. Then. through hypal
lage in the early 18th century, it was extended to refer
to the subject of a conveyance or bequest as specified
in the premises of the deed. Finally. it was extended to
refer to a house or building along with its grounds. In
short, someone who says, "No alcohol is allowed on these
premises." is engaging unconsciously in a popularized legal
technicality: Bryan A. Garner, A Dictionary ofModern Legal
Usage 685 (2d ed. 1995).
demised premises. Leased property. -Also termed
premises demised.
premises liability. (1950) A landowner's or landholder's
tort liability for conditions or activities on the premises.
[Cases: Negligence 1000,1001.]
premises rnle. See PARKING-LOT RULE. premium, n. 1. The periodic payment required to keep
an insurance policy in effect. -Also termed insurance
premium. [Cases: Insurance (;::::>2000.]
advance premium. A payment made before the start
of the period covered by the insurance policy. lCases:
Insurance (;::::> 1760.]
earned premium. The portion of an insurance
premium applicable to the coverage period that has
already expired. _ For example, ifthe total premium
for a one-year insurance policy is $1,200, the earned
premium after three months is $300. [Cases: Insur
ance (;::::>2000.]
gross premium. 1. The net premium plus expenses (Le.,
the loading), less the interest factor. See LOADING;
INTEREST FACTOR. [Cases: Insurance 2005.]
2. The premium for participating life insurance. See
participating insurance under INSURANCE.
natural premium. Ihe actual cost oflife insurance
based solely on mortality rates. -This amount will
be less than a net premium. See net premium.
net level annual premium. A net premium that stays
the same each year.
net premium. 1. Generally, the premium amount for
an insurance policy less agent commissions. [Cases:
Insurance (;::::> 16S2. 2000.] 2. The portion of the
premium that covers the estimated cost of claims. 3.
The money needed to provide benefits under an insur
ance policy. -The net premium in a life-insurance
policy is calculated by using an assumed interest and
mortality-table rate; it does not include additional
expense amounts that will be charged to the policy
holder. -Also termed net valuation premium.
net single premium. The money that must be col
lected from a policyholder at one time to guarantee
enough money to pay claims made on an insurance
policy. -This amount assumes that interest accrues
at an expected rate and is based on a prediction of
the likelihood ofcertain claims. [Cases: Insurance
(;::::>2037.]
net valuation premium. See net premium.
unearned premium. The portion of an insurance
premium applicable to the coverage period that has
not yet occurred. _ In the same example as above
under earned premium, the unearned premium after
three months is $900. [Cases: Insurance 1371,
1930,2046.]
2. A sum ofmoney paid in addition to a regular price,
salary, or other amount; a bonus. 3. The amount
by which a security's market value exceeds its face
value. -Also termed (sped.) bond premium. Cf.
DISCOUNT (3).
control premium. A premium paid for shares carrying
the power to control a corporation. -The control
premium is often computed by comparing the aggre
gate value ofthe controlling block |
the power to control a corporation. -The control
premium is often computed by comparing the aggre
gate value ofthe controlling block of shares with the
cost that would be incurred if the shares could be
1301
acquired at the going market price per share. [Cases:
Corporations 0174.]
4. The amount paid to buy a securities option. -Also
termed (in sense 4) option premium.
premium bond. See BOND (3).
premium loan. See LOAN.
premium note. See NOTE (1).
premium on capital stock. See paid-in surplus under
SURPLUS.
premium pudoris. See PRAEMIUM PUDIClTIAE.
premium rate. Insurance. The price per unit oflife insur
ance. It is usu. expressed as a cost per thousands of
dollars of coverage. Life insurers use three factors
the interest factor, the mortality factor, and the risk
factor -to calculate premium rates. Sometimes
shortened to rate. See INTEREST FACTOR; MORTALITY
FACTOR; RISK FACTOR. [Cases: Insurance 1541
1546.]
premium stock. See STOCK.
premium tax. See TAX.
prenatal injury. Harm to a fetus or an embryo. Cf. BIRTH
INJURY.
prenatal tort. See TORT.
prender. The right to take a thing before it is offered.
Also spelled prendre.
prender de baron (pren-dar da bar-an). [Law French
"a taking of husband"] Hist. A plea asserting that the
former wife of a murder victim should not be allowed to
appeal a murder case against the alleged killer because
she has since remarried.
prendre. See PRENDER.
prenup, n. Slang. See PRENUPTIAL AGREEMENT.
prenuptial (pree-nap-shal), adj. (1857) Made or occur
ring before marriage; premaritaL -Also termed ante
nuptial (an-tee-nap-shal). Cf. POSTNUPTIAL.
prenuptial agreement. (1882) An agreement made
before marriage usu. to resolve issues ofsupport and
property division if the marriage ends in divorce or
by the death of a spouse. Also termed antenuptial
agreement; antenuptial contract; premarital agreement;
premarital contract; marriage settlement. -Sometimes
shortened to prenup. Cf. POSTNUPTIAL AGREEMENT;
COHABITATION AGREEMENT. [Cases: Husband and Wife
029,31.J
prenuptial gift. See GIFT.
prenuptial will. See WILL.
prepaid card. See STORED-VALUE CARD.
prepaid expense. See EXPENSE.
prepaid income. See INCOME.
prepaid interest. See INTEREST (3).
prepaid legal services. (1963) An arrangement usu.
serving as an employee benefit -that enables a person prerogative of mercy
to make advance payments for future legal services.
[Cases: Attorney and Client 0137.]
preparation. Criminal law. The act or process of
devising the means necessary to commit a crime. Cf.
ATTEMPT.
prepayment clause. (1935) A loan-document provision
that permits a borrower to satisfy a debt before its due
date. Although any interest not yet due is waived, the
lender may impose a penalty for prepayment. [Cases:
Bills and Notes C~')129,429.]
prepayment penalty. See PENALTY (2).
prepense (pree-pens), ad). Rare. Planned; deliberate
<malice prepense>.
prepetition (pree-pa-tish-an), adj. (I938) Occurring
before the filing of a petition (esp. in bankruptcy)
<prepetition debts>.
preponderance (pri-pon-d<'Jr-<'Jnts), n. (17c) Superiority
in weight, importance, or influence. -preponderate
(pri-pon-d<'Jf-ayt), vb. -preponderant (pri-pon-d<'Jr
<'Jnt), adj.
preponderance ofthe evidence. (I8c) The greater weight
of the evidence, not necessarily established by the
greater number of witnesses testifying to a fact but by
evidence that has the most convincing force; superior
evidentiary weight that, though not sufficient to free the
mind wholly from all reasonable doubt, is still sufficient
to incline a fair and impartial mind to one side of the
issue rather than the other . This is the burden of proof
in most civil trials, in which the jury is instructed to
find for the party that, on the whole, has the stronger
evidence, however slight the edge may be. -Also
termed preponderance ofproof; balance ofprobabil
ity. See REASONABLE DOUBT. Cf. clear and convincing
evidence under EVIDENCE. [Cases: Evidence 0598.]
"Criminal convictions are so serious in their consequences
that it is felt that an accused person should be freed, if
there is any fair or reasonable doubt about his guilt, even
though there seems to be considerable likelihood that
he did commit the crime .... In civil cases, however, the
consequence of losing a case, although serious enough in
many cases, is not considered to be such as to require so
stringent a rule. Accordingly the plaintiff is entitled to a
verdict if he proves the case 'by the preponderance of the
evidence.' In other words, he is entitled to a verdict even
though there may be a reasonable doubt as to the liability
of the accused, if the jury is satisfied nevertheless that the
plaintiff has proved his case." Charles Herman Kinnane, A
First Book on AngloAmerican Law 562 (2d ed. 1952).
prerogative (pri-rog-<'J-tiv), n. (15c) An exclusive right,
power, privilege, or immunity, usu. acquired by virtue
ofoffice. prerogative, adj.
prerogative ofmercy. The discretionary power of a
supreme authority, such as a state governor, national
president, or sovereign, to commute a death sentence,
change the method ofexecution, or issue a pardon.
prerogative court. See COURT.
prerogative ofmercy. The limited right of a chief execu
tive to commute a death sentence or to pardon a con
victed person, esp. one convicted of a capital crime.
1302 prerogative writ
prerogative writ. See extraordinary writ under WRIT.
pres (pray). [Law French] Near. See CY PRES.
presale. The sale ofreal property (such as condominium
units) before construction has begun. [Cases: Condo
minium
prescribable (pri-sknb-J-bJI), adj. (1890) (Of a right)
that can be acquired or extinguished by prescription.
prescribe, vb. I. To dictate, ordain, or direct; to estab
lish authoritatively (as a rule or guideline). 2. To claim
ownership through prescription. 3. To invalidate or
otherwise make unenforceable through prescription.
4. To become invalid or otherwise unenforceable
through prescription. [Cases: Holidays 1; Limita
tion ofActions ~1.J
prescript, adj. Having the nature of a rule or
command.
prescript, n. Archaic. A rule, law, command, or ordi
nance; PRESCRIPTION (2). -A general term, prescript
may also apply to an edict, a regulation, or any instruc
tive guideline.
prescription, n. (15c) 1. The act ofestablishing authorita
tive rules. Cf. PROSCRIPTION. 2. A rule so established.
Also termed (archaically) prescript. 3. The effect ofthe
lapse oftime in creating and destroying rights. [Cases:
Limitation ofActions ~1.]4. The extinction ofa title
or right by failure to claim or exercise it over a long
period. - Also termed negative prescription; extinctive
prescription. 5. The acquisition of title to a thing (esp.
an intangible thing such as the use of real property)
by open and continuous possession over a statutory
period. - Also termed positive prescription; acquisitive
prescription. Cf. ADVERSE POSSESSIO~. See (for senses
3-5) PERIOD OF PRESCRIPTION. [Cases: Adverse Posses
sion C=1-95.)6. Int'llaw. The acquisition ofa territory
through a continuous and undisputed exercise ofsov
ereignty over it. 7. Oil &gas. A Louisiana doctrine that
extinguishes unused mineral servitudes after ten years
ifthere is no effort to discover or produce on the land
or the land pooled with it. [Cases: Mines and Minerals
C;:,78.2.]
acquisitive prescription (J-kwiz-;:l-tiv). 1. PRESCRIP
TION (5). 2. Civil law. A mode ofacquiring ownership
or other legal rights through possession for a specified
period of time. [Cases: Adverse Possession (,'-::> 1.)
liberative prescription (lib-;:l-rJ-tiv). Civil law. A bar
to a lawsuit resulting from its untimely filing. La. Civ.
Code art. 3447. -This term is essentially the civil-law
equivalent ofa statute oflimitations. See STATUTE OF
LIMITATIONS. [Cases: Limitation ofActions
prescription in a que estate (ah kee). [Law French "pre
scription in whose estate"] A claim of prescription
based on the immemorial enjoyment of the right by
the claimant and the former owners whose estate the
claimant has succeeded to.
prescription ofnonuse. Civil law. A mode ofextinction
ofa real right other than ownership (such as a servi
tude) as a result of failure to exercise the right for a speCified period of time. [Cases: Adverse Possession
~109;EasementsC=30.j
prescriptive easement. See EASEMENT.
prescriptive right. (17c) A right obtained by prescription
<after a nuisance has been continuously in existence for
20 years, a prescriptive right to continue it is acquired
as an easement appurtenant to the land on which it
exists>. [Cases: Nuisance ~1l-17.]
presence, n. 1. The state or fact ofbeing in a particular
place and time <his presence at the scene saved two
lives>. 2. Close physical proximity coupled with aware
ness <the agent was in the presence of the principal>.
constructive presence. 1. Criminal law. Legal imputa
tion ofhaving been at a crime scene, based on having
been close enough to the scene to have aided and
abetted the crime's commission. See CONSPIRACY.
[Cases: Criminal Law C=59(3).] 2. Wills & estates.
Legal imputation ofa witness's having been in the
room when a will was signed, based on the fact that
the testator and the witness were able to see each
other at the time of the signing. _ This principle was
commonly employed until the 20th century, when
the presence-of-the-testator rule became dominant.
See PRESENCE-OF-THE-TESTATOR RULE. [Cases: Wills
~123(5).]
presence-of-defendant rule. The principle that a felony
defendant is entitled to be present at every major stage
ofthe criminal proceeding. Fed. R. Crim. P. 43. [Cases:
Criminal Law ~636.J
presence ofthe court. (l8e) The company or proximity
ofthe judge or other courtroom official. -For purposes
ofcontempt, an action is in the presence ofthe court
ifit is committed within the view ofthe judge or other
person in court and is intended to disrupt the court's
business.
"Some deCisions indicate that the term 'in the presence of
the court' is to be given a liberal interpretation. that 'the
court' consists not of the judge, the courtroom, the jury,
or the jury room individually. but of all of these combined,
and that the court is present wherever any of its constitu
ent parts is engaged in the prosecution of the business
of the court according to law." 17 Am. Jur. 2d Contempt
19 (1990).
presence-of-the-testator rule. The principle that a
testator must be aware (through Sight or other sense)
that the witnesses are signing the will. -Many juris
dictions interpret this requirement liberally, and the
Uniform Probate Code has dispensed with it. [Cases:
Wills 117.1
present, adj. (14c) 1. Now existing; at hand <a present
right to the property>. 2. Being considered; now under
discussion <the present appeal does not deal with that
issue>. 3. In attendance; not elsewhere <all present
voted for him>.
present ability. See ABILITY.
present and voting. Parliamentary law. (Of a member)
casting a vote. -The result of a vote is ordinarily
determined with reference to the members voting
(often termed, somewhat redundantly, as "present and
voting"). An answer of"present" when casting a vote
amounts to an abstention because the voter is indicat
ing that he or she is present but not voting. See ABSTAIN
(1).
presentation. (I5c) 1. 1he delivery of a document to
an issuer or named person for the purpose of initiat
ing action under a letter ofcredit; PRESENTMENT (3).
[Cases: Banks and Banking 191.J 2. Hist. Eccles.
law. A benefice patron's nomination of a person to fill
a vacant benefice . Ifthe bishop rejected the appointee,
the patron could enforce the right to fill the vacancy by
writ ofquare impedit in the Court ofCommon Pleas.
See QUARE IMPEDIT. Cf. ADVOWSON; INSTITUTION (5).
next presentation. Hist. Eccles. law. In the law of
advowsons, the right to present to the bishop a clerk
to fill the first vacancy that arises in a church or other
ecclesiastical office.
present case. See case at bar under CASE.
present conveyance. See CONVEYANCE.
present covenant. See COVENANT (4).
presentence hearing. (1940) A proceeding at which a
judge or jury receives and examines |
(4).
presentence hearing. (1940) A proceeding at which a
judge or jury receives and examines all relevant infor
mation regarding a convicted criminal and the related
offense before passing sentence. Also termed sen
tencing hearing. [Cases: Sentencing and Punishment
<>325.)
presentence-investigation report. (1943) A probation
officer's detailed account of a convicted defendant's
educational, criminal, family, and social background,
conducted at the court's request as an aid in passing
sentence. See Fed. R. Crim. P. 32(c). -Abbr. PSI;
PIR. -Often shortened to presentence report. [Cases:
Sentencing and Punishment C=-.c275-30l.)
present enjoyment. See ENJOYMENT.
presenter. Commercial law. Any person presenting a
document (such as a draft) to an issuer for honor. VCC
5-102.
present estate. 1. ESTATE (1). 2. See present interest under
INTEREST (2).
presenting bank. See BANK.
presenting jury. See GRAND JURY.
present interest. See INTEREST (2).
presentment (pri-zent-m;:mt). (15c) 1. The act ofpresent
ing or laying before a court or other tribunal a formal
statement about a matter to be dealt with legally. 2.
Criminal procedure. A formal written accusation
returned by a grand jury on its own initiative, without
a prosecutor's previous indictment request. Present
ments are obsolete in the federal courts. [Cases; Grand
Jury <>42.]
"A grand jury has only two functions, either to indict or to
return a 'no bill.' The Constitution speaks also of a 'present
ment,' but this is a term with a distinct historical meaning
now not well understood. Historically presentment was
the process by which a grand jury initiated an independent
investigation and asked that a charge be drawn to cover
the facts should they constitute a crime. With United States
attorneys now always available to advise grand juries, proceeding by presentment is an outmoded practice." 1
Charles Alan Wright, Federal Practice and Procedure 110,
at 459 (3d ed. 1999).
3. 'The formal production of a negotiable instrument
for acceptance or payment. -Also termed (in sense 3)
presentation. [Cases; Bills and Notes <>385-407.]
"Presentment and dishonor occur, for instance, when the
holder of a check attempts to cash it at the drawee bank,
but payment is refused because the drawer lacks sufficient
funds on deposit. The demand for payment is presentment.
The bank's refusal to pay is dishonor." 2 James J. White &
Robert S. Summers, Uniform Commercial Code 16-8. at
100 (4th ed. 1995).
presentment for acceptance. (i8c) Production of an
instrument to the drawee, acceptor, or maker for
acceptance. This type of presentment may be
made anytime before maturity, except that with bills
payable at Sight, after demand, or after sight, present
ment must be made within a reasonable time. [Cases:
Bills and Notes <>388.J
presentment for payment. (18c) Production of an
instrument to the drawee, acceptor, or maker for
payment. This type ofpresentment must be made
on the date when the instrument is due. [Cases: Bills
and Notes C:::::o399.]
presentment of Englishry. Hist. The offering of proof
that a slain person was English rather than (before the
Conquest) a Dane or (after the Conquest) a Norman.
1his requirement was issued first by the conquering
Danes and then by the Normans to protect these groups
from the English by the threat ofa village-or hundred
wide amercement ifthe inhabitants failed to prove that
a dead person found among them was English.
presentment warranty. See WARRANTY (2).
present recollection refreshed. (1908) Evidence. Awit
ness's memory that has been enhanced by shOWing the
witness a document that describes the relevant events.
The document itself is merely a memory stimulus
and is not admitted in evidence. Fed. R. Evid. 612.
Also termed refreshing recollection; refreshing memory;
present recollection revived. Cf. PAST RECOLLECTION
RECORDED. [Cases: Witnesses <>253.]
presents, n. pI. (14c) Archaic. 1he instrument under
consideration . This is usu. part ofthe phrase these
presents, which is part of the longer phrase know all
men by these presents (itself a loan translation from the
Latin noverint universi per praesentes). See KNOW ALL
MEN BY THESE PRESENTS.
present sale. See SALE.
present sense impression. (1942) Evidence. One's percep
tion ofan event or condition, formed during or imme
diately after the fact. A statement containing a present
sense impression is admissible even if it is hearsay.
Fed. R. Evid. 803(1). Cf. EXCITED UTTERANCE. [Cases:
Criminal Law <>419(2.15); Evidence (...'-:> 120.]
present use. See USE (4).
present value. 1he sum ofmoney that, with compound
interest, would amount to a specified sum at a specified
preservation order 1304
future date; future value discounted to its value today.
Also termed present worth.
adjusted present value. An asset's value determined by
adding together its present value and the value added
by capital-structure effects. -Abbr. APV.
net present value. The present value of net cash flow
from a project, discounted by the cost of capital.
This value is used to evaluate the project's investment
potential. Abbr. NPV.
preservation order. A direction to a property owner
to maintain a historic building or conserve a natural
habitat.
preside, vb. (1Sc) 1. To occupy the place ofauthority, esp.
as a judge during a hearing or trial <preside over the
proceedings>. 2. To exercise management or control
<preside over the estate>.
president, n. 1. The chief political executive ofa govern
ment; the head of state. [Cases: United States C=:;26.]
2. The chief executive officer ofa corporation or other
organization. 3. CHAIR (1). 4. CHAIR (3). See (in senses
3 & 4) presiding officer (3) under OFFICER (2). -presi
dential, adj.
immediate past president. The last president who held
office before the incumbent. See EMERITUS.
president-elect. An officer who automatically succeeds
to the presidency when the incumbent president's
term expires . Ifthe organization's governing docu
ments so provide, the president-elect may act as presi
dent in the incumbent president's absence, or may
assume the presidency early if the incumbent does
not finish the term.
president emeritus. See EMERITUS.
presidential elector. See ELECTOR (1).
Presidential message. See MESSAGE.
president judge. See presiding judge under rUDGE.
president of a court-martial. AIilitary law. The senior
member in rank present at a court-martial trial. [Cases:
Military Justice C=:;870.j
President of the United States. The highest execu
tive officer of the federal government of the United
States . The President is elected to a four-year term
by a majority of the presidential electors chosen by
popular vote from each of the states. The President
must be a natural citizen, must be at least 3S years old,
and must have been a resident for 14 years within the
United States. U.S. Const. art. II, 1. [Cases: United
States C=:;26.]
presiding judge. See JUDGE.
presiding juror. See JUROR.
presiding officer. See OFFICER (2).
press, n. I. The news media; print and broadcast news
organizations collectively. [Cases: Constitutional Law
~90(2).1
'The Constitution specifically selected the press, which
includes not only newspapers, books, and magazines, but
also humble leaflets and circulars, to play an important role in the discussion of public affairs." Mills v. Alabama, 384
U.S. 214,219,86 S.Ct. 1434, 1437 (1966).
"'Press' could refer to one or more subsets of media,
defined either by function or form. To the extent that
existing law defines 'the press' at all, it does so mostly
in terms of specific media forms. The Supreme Court has
addressed the matter only obliquely .... [lIt has never had
to decide whether a particular litigant was 'press.' In most
cases the question does not arise because the claimed
right would be protected as fully by the Speech Clause as
by the Press Clause. The cases in which the Court seems
to rely on the Press Clause have involved newspapers or
magazines whose status as press was unquestioned. The
Court on other occasions has mentioned 'publishers and
broadcasters,' 'the media,' 'editorial judgment,' 'editorial
control,' 'journalistic discretion,' and 'newsgathering' as
possible objects of protection. The most famous discus
sion of the meaning of the Press Clause, a 1974 speech
byJustice Stewart, identified its beneficiaries as 'the daily
newspapers and other established media,' or 'newspapers,
television, and magazines.'" David A. Anderson, Freedom
of the Press, 80 Texas L. Rev. 429, 436 (2002).
2. Rist. A piece of parchment, as one sewed together to
make up a roll or record of judicial proceedings.
Press Clause. The First Amendment provision that
"Congress shall make no law ... abridging the
freedom ... of the press." U.S. Const. amend l. -Also
termed Freedom ofthe Press Clause. [Cases: Constitu
tional LawC=:;2070-2081.]
prest (prest). Rist. A duty to be paid by the sheriff upon
his account in the Exchequer or for money remaining
in his custody.
prestable (pres-ta-bal), adj. Scots law. 1. Payable. 2.
Enforceable; exigible . This term appears generally in
reference to a debt. Cf. EXIGIBLE.
prestation (pre-stay-shan). Rist. 1. A payment (or
presting) of money. 2. The rendering ofa service.
prest money. Rist. A monetary payment made to a
soldier or sailor on enlistment.
presume, vb. To assume beforehand; to suppose to be
true in the absence of proof.
presumed bias. See implied bias under BIAS.
presumed crime. See constructive crime under CRIME.
presumed fact. See FACT.
presumed father. See FATHER.
presumed-seller test. A method of imposing product
liability on a manufacturer if the manufacturer, having
full knowledge of the product's dangerous propensi
ties, would be negligent in placing the product on the
market.
presumption. (ISc) A legal inference or assumption that
a fact exists, based on the known or proven existence
of some other fact or group of facts. Most presump
tions are rules ofevidence calling for a certain result
in a given case unless the adversely affected party over
comes it with other evidence. A presumption shifts the
burden of production or persuasion to the opposing
party, who can then attempt to overcome the presump
tion. See BURDEN OF PRODUCTION. [Cases: Criminal
Law Evidence C=:;S3-89.]
"A presumption may be defined to be an inference as to
the existence of one fact from the existence of some other
fact founded upon a previous experience of their connec
tion." William P. Richardson, The Law of Evidence 53, at
25 (3d ed. 1928).
absolute presumption. See conclusive presumption.
adverse presumption. See adverse inference under
INFERENCE.
artificial presumption. See presumption oflaw.
conclusive presumption. (I8c) A presumption that
cannot be overcome by any additional evidence or
argument <it is a conclusive presumption that a child
under the age of seven is incapable ofcommitting a
felony>. Also termed absolute presumption; irre
buttable presumption; mandatory presumption; pre
sumption juris et de jure. Cf. rebuttable presumption.
[Cases: Constitutional Law (;:::::>253(5); Evidence
53-89.]
'''Conclusive presumptions' or 'irrebuttable presumptions'
are usually mere fictions, to disguise a rule of substantive
law (e.g., the conclusive presumption of malice from an
unexcused defamation); and when they are not fictions,
they are usually repudiated by modern courts." John H.
Wigmore, A Students' Textbook ofthe Law ofEvidence 454
(1935).
"Conclusive presumptions, sometimes called irrebuttable
presumptions of law, are really rules of law. Thus it is said
that a child under the age of fourteen years is conclusively
presumed to be incapable of committing rape. This is only
another way of saying that such a child cannot be found
guilty of rape." Richard Eggleston, Evidence, Proof and
Probability 92 (1978).
conditional presumption. See rebuttable presump
tion.
conflicting presumption. (1830) One of two or more
presumptions that would lead to opposite results.
Also termed inconsistent presumption. [Cases:
Criminal Law (:::;:'325; Evidence (::::>88.]
'''Conflicting presumptions' are simply two ordinary pre
sumptions that would give opposite results; usually they
are really successive presumptions. E.g., where A proves
himself to be the son of N, wife of M, but M and N were
already separated, and later M married P, and had a son B,
the later marriage of M might presume a prior divorce from
N before separation to make it valid, and yet the birth of
A from a married mother might be presumed legitimate,
and thus the question whether A or B was the legitimate
son would be attended by opposing pres |
Subsets and Splits